Federal statutes and regulations provide that a national bank may make loans to a single borrower in an amount up to 15 percent of its unimpaired capital and surplus. 1 A national bank also may extend credit up to an additional 10 percent of unimpaired capital and surplus to the same borrower if the amount of the loan that exceeds the 15 percent limit is secured by “readily marketable collateral.” Twelve CFR part 32 refers to these lending limits as the “combined general limit.” The statute and regulation also provide exceptions to the combined general limit for various types of loans and extensions of credit.

Twelve U.S.C. 84 authorizes the OCC to establish lending limits “for particular classes or categories of loans” that are different from those expressly provided by the statute's terms. In 2001, relying on this authority, the OCC published a final rule establishing a pilot program with special lending limits for residential real estate loans and small business loans. 66 FR 31114 (June 11, 2001) (2001 Final Rule). The purpose of the program is to enable community banks to remain competitive in states that provide their state-chartered institutions with a higher lending limit for these types of loans, while continuing to ensure that banks conduct their lending operations in a safe and sound manner. As of the end of June 2004, 178 national banks headquartered in 23 states had received approval to participate in the program.

On April 24, 2004, the OCC proposed to extend the pilot program for three years beyond its current expiration date of June 11, 2004. 69 FR 21978 (April 23, 2004). We proposed this extension to gain additional information and experience about the program and to reach a determination of whether, and under what circumstances, to terminate, modify, or extend the program. On June 10, 2004, the OCC issued an interim rule extending the pilot program through September 11, 2004. 2 69 FR 32435 (June 10, 2004). We issued the interim rule to allow the pilot program to continue, uninterrupted, while we reviewed public comments on the proposed rule.

The OCC received 13 comments on the proposed rule. Eight comments were from national banks, most operating in small communities. Two comments were submitted by national-level bank trade associations; one comment was submitted by a state banking trade association. One comment was from a major trade association for homebuilders; and one comment was submitted by a Federal thrift.

All of the commenters supported the pilot program and favored extending it for three years, although many would prefer that the OCC make it permanent. One commenter, a national bank, stated that the lending program helped the bank retain customers who want one institution to provide all of their financing. A second commenter, also a national bank, stated that the pilot program has enabled the bank to remain competitive with state-chartered institutions with higher lending limits. A third commenter, a trade association for banks, endorsed the pilot program, noting that the higher lending limits have allowed community banks to retain customers they may have otherwise lost to other institutions. 3

The preamble to the 2001 Final Rule stated that, prior to conclusion of the pilot program, we would evaluate our experiences under the program and determine whether, and under what circumstances, to extend its duration. The proposal to this final rule noted that banks in the program have not had the additional lending authority for a sufficient period of time to allow the OCC to assess fully the effects of the program. We also observed that the limited number of banks in the pilot program, and the relatively small number of quarters of data available for review, made reaching a final conclusion about the program premature. For these reasons, we proposed extending the pilot program for an additional three years.

As described earlier, all of the commenters supported extending the program. Several commenters also indicated that the pilot program has allowed them to remain competitive or retain customers. We continue to believe, however, that more data are needed before we can adequately evaluate whether to make the program permanent. Therefore, the final rule extends the program for an additional three years until June 11, 2007, with one substantive change to include an additional special lending limit for farm lending. Banks already approved under the pilot program need not reapply to continue lending under the program.

The pilot program authorizes an eligible national bank to apply for approval to make residential real estate loans and small business loans to a single borrower in addition to amounts that they may already lend to a single borrower under the existing combined general limit and special limits in 12 CFR 32.3(a) and (b). Under the pilot program, an eligible national bank may make residential loans in an additional amount up to the lesser of 10 percent of its capital and surplus, or the percent of its capital and surplus in excess of 15 percent that a state bank is permitted to lend under the state lending limit that is available for residential real estate loans or unsecured loans in the state where the main office of the national bank is located. Similarly, an eligible national bank may make small business loans in an additional amount up to the lesser of 10 percent of capital and surplus, or the percent of its capital and surplus in excess of 15 percent that a state bank is permitted to lend under the state lending limit that is available for small business loans or unsecured loans in the state where the main office of the national bank is located. In each case, the bank may lend no more than $10 million to a single borrower under the special authority. The 2001 Final Rule provides specific definitions for residential real estate loans and small business loans. 66 FR 31120 (June 11, 2001); see also 12 CFR 32.2(p) and (r).

Several commenters requested that the OCC add agricultural loans as another category of loans eligible for the special lending limits. One commenter observed that consolidation has resulted in fewer, but larger, farms with expanded credit needs. This situation makes the higher lending limit more important and useful to serving the bank's customers. Another commenter stated that rural banks have significant expertise in agricultural lending, thereby reducing the risk of loss of the agricultural loans they make. Another commenter stated that loans to small farms present no more risk, and perhaps less risk, than small business loans.

We agree with the commenters that the addition of agricultural loans to the pilot program likely will help both the community national banks that serve rural agricultural communities in those states with higher lending limits and their customers. Moreover, the incremental risk posed by the expansion of the pilot program to include agricultural loans does not raise significant safety and soundness concerns. It is our supervisory observation that agricultural loans have rates of loss that are similar to, and sometimes lower than, other types of loans. Therefore, the final rule provides that, in addition to the amount that a bank may lend to one borrower under §§ 32.3 (a) and (b), an eligible national bank may make small farm loans to one borrower in the lesser of the following two amounts: 10 percent of its capital and surplus; or the percent of its capital and surplus, in excess of 15 percent, that a state bank is permitted to lend under the state lending limit that is available for small farm loans or unsecured loans in the state where the main office of the national bank is located. In no event may a bank lend more than $10 million to one borrower under this authority. The OCC will use the data we accumulate over the three-year extension of the program to evaluate the effects of this additional authority on participating banks.

This final rule defines the term “small farm loans” by referring to the instructions for preparation of the Consolidated Report of Condition and Income (Call Report Instructions). 4 The Call Report Instructions include loans or extensions of credit “secured by farmland (including farm residential and other improvements)” or loans or extensions of credit “to finance agricultural production and other loans to farmers.” We adopted this definition because banks are familiar with the Call Report Instructions.

One commenter, a major trade association for homebuilders, suggested that we add loans for property construction and land development (construction and development) purposes to the program. The commenter asserted that lending limits are problematic for community banks. We did not receive comment from any banks suggesting that banks have been disadvantaged due to higher state lending limits for construction and development lending. Nor did the homebuilders association provide such evidence. Moreover, it is our supervisory experience that construction and development loans present more significant risks than do loans currently in the pilot program. Therefore, we decline to extend the program to construction and development loans.

At the outset of the pilot program, in 2001, we adopted a number of safeguards that apply to banks using the authority under the pilot program. For example, the amount that a bank may lend under the pilot program's special limits is subject to an individual borrower cap and an aggregate borrower cap. Under the individual borrower cap, the total outstanding amount of a bank's loans to one borrower under 12 CFR 32.3(a) and (b), together with loans made under the program, may not exceed 25 percent of the bank's capital and surplus. The aggregate cap provides that the total outstanding amount of any loan or parts of loans made by a bank to all of its borrowers under the special limits of the pilot program may not exceed 100 percent of the bank's capital and surplus. And, as noted earlier, the amount a bank may lend to one borrower under the special lending limit may not exceed $10 million. These caps, which apply to residential real estate loans and small business loans banks, will now include small farm loans made by a bank under the expanded pilot program.

One commenter suggested that the OCC increase the $10 million individual cap to $20 million to broaden the appeal of the program and further level the playing field between state and national banks. The same commenter also recommended expanding the program's aggregate lending cap on all small business and real estate loans from 100 percent to 200 percent of a bank's capital and surplus.

We believe that the 100 percent aggregate lending cap provides significant opportunity for lending under the pilot program and is a provision that comports with safety and soundness. As we stated in the proposed rule, while the pilot program has operated in a safe and sound manner, the data available to the OCC is not of sufficient volume or maturity to make a long-term decision about whether to modify these safeguards. Therefore, at this time we decline to increase the amounts that banks may lend under the pilot program. During the course of the next few years, we will consider the effect of the cap on lending under the revised pilot program, e.g., whether agricultural lenders typically make loans under other parts of the pilot program and, if so, whether the caps have resulted in a competitive disadvantage for participating banks.

A bank is eligible for the pilot program only if it is well capitalized, as defined in 12 CFR 6.4(b)(1), and has a rating of 1 or 2 under the Uniform Financial Institutions Rating System (UFIRS), with at least a rating of 2 for asset quality and for management. These criteria ensure that only banks with sufficient capital and good managerial oversight are permitted to use the increased limits.

A bank also must apply and obtain the OCC's approval before it may use the special lending limits. The application includes a certification that the bank is well capitalized and has the requisite ratings, citation to state law on lending limits, a copy of a written resolution by a majority of the bank's board of directors approving the use of the new lending authority, and a description of how the board will exercise its continuing responsibility to oversee the use of this lending authority.

One commenter suggested that the OCC allow a national bank to self-certify that it is an eligible bank rather than go through an application process. We believe that the application process is an important tool that allows the OCC to monitor carefully the banks that wish to participate in the program. Therefore, we are maintaining the application requirement.

Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), 5 U.S.C. 605(b), the regulatory flexibility analysis otherwise required under section 604 of the RFA is not required if the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities and publishes its certification and a short, explanatory statement in the Federal Register along with its rule.

Pursuant to section 605(b) of the RFA, the OCC hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities for the following reasons. Participation in the pilot program is voluntary; the program does not impose new requirements on banks; the program confers a benefit; and banks that participate in the program will not experience a significant economic impact, regardless of size. Also, to date, only a small fraction of national banks have taken part in the program.

Under section 553(d) of the Administrative Procedure Act (APA), 5 U.S.C 553(d), the OCC must generally provide a 30-day delayed effective date for final rules. The OCC may dispense with the 30-day delayed effective date requirement “for good cause found and published with the rule.” Similarly, section 302 of the Riegle Community Development and Regulatory Improvement Act of 1994 (CDRI), requires a banking agency to make a rule effective on the first day of the calendar quarter that begins on or after the date on which the regulations are published in final form, unless the agency finds good cause for an earlier effective date. 12 U.S.C. 4802(b)(1).

The OCC finds that there is good cause to dispense with the two effective date requirements because a failure to extend the September 11, 2004, sunset date would cause unnecessary disruption in the operation of the pilot program. In addition, the purpose of the APA and CDRI delayed effective date provisions is to afford affected persons a reasonable time to comply with rule changes. While the final rule expands the scope of loans a bank may make under the program, the rule makes no substantive changes to the existing lending limits pilot program. Therefore, there is no additional regulatory or compliance burden associated with the final rule for banks that apply to enter the program or banks already in the pilot program.

The OCC has determined that this final rule is not a significant regulatory action under Executive Order 12866.

Section 202 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532 (Unfunded Mandates Act), requires that an agency prepare a budgetary impact statement before promulgating any rule likely to result in a Federal mandate that may 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. If a budgetary impact statement is required, section 205 of the Unfunded Mandates Act also requires the agency to identify and consider a reasonable number of regulatory alternatives before promulgating the rule. The OCC has determined that this final rule will not result in expenditures by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. Accordingly, the OCC has not prepared a budgetary impact statement or specifically addressed the regulatory alternatives considered.

The Office of Management and Budget (OMB) has reviewed and approved the collection of information requirements contained in the pilot program under control number 1557-0221, in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

This amendment adopts a new AD for Eurocopter Model AS-365N2, AS 365 N3, EC 155B, EC155B1, SA-365N and N1, and SA-366G1 helicopters. This action requires visually inspecting the MGB for a crack in the MGB base plate, part number (P/N) 366A32-1062-03 or P/N 366A32-1062-06, close to the attachment hole using a 10x or higher magnifying glass. Stripping paint from the inspection area is also required, but only before the initial inspection. This amendment is prompted by the discovery of a crack in the MGB base plate of a MGB installed in a Model AS-365 N2 helicopter. The cause of the crack is under investigation, therefore, this AD is an interim action until the cause of the crack can be determined. The crack was located very close to the attachment points of one of the laminated pads, and it propagated to the inside of the MGB base plate and then continued into the MGB casing. This condition, if not detected, could result in failure of one of the MGB attachment points to the frame, which could result in severe vibration and subsequent loss of control of the helicopter.

The Direction Generale De L'Aviation Civile (DGAC), the airworthiness authority for France, notified the FAA that an unsafe condition may exist on Eurocopter Model SA 365 N, N1, SA 366 G1, AS 365 N2, N3, and EC 155 B and B1 helicopters. The DGAC advises of the discovery of a crack on the MGB base plate of a Model AS 365 N2 helicopter.

Eurocopter has issued Alert Telexes:

• No. 05.00.45, applicable to Model 365 N, N1, N2, and N3 helicopters;

• No. 05.29, applicable to Model 366 G1 helicopters; and

• No. 05A005, applicable to Model EC 155 B and B1 helicopters, all dated February 5, 2004. These alert telexes specify visually inspecting the MGB base plate for absence of cracks. In addition, the alert telexes state that a 10x magnifying glass can be used to facilitate the crack inspection. Also, if in doubt about the existence of a crack, the alert telexes specify inspecting for a crack using a dye-penetrant crack detection inspection. The DGAC classified these alert telexes as mandatory and issued AD No. UF-2004-023(A), dated February 6, 2004, and AD No. F-2004-023, dated March 3, 2004, to ensure the continued airworthiness of these helicopters in France.

These helicopter models are manufactured in France and are type certificated for operation in the United States under the provisions of 14 CFR 21.29 and the applicable bilateral agreement. Pursuant to the applicable bilateral agreement, the DGAC has kept the FAA informed of the situation described above. The FAA has examined the findings of the DGAC, reviewed all available information, and determined that AD action is necessary for products of these type designs that are certificated for operation in the United States.

This unsafe condition is likely to exist or develop on other helicopters of the same type design. Therefore, this AD is being issued to detect a crack in the MGB base plate and prevent failure of one of the MGB attachment points to the frame, which could result in severe vibration and subsequent loss of control of the helicopter. This AD requires initial and repetitive inspections of the MGB base plate for cracking at various short time intervals until its cause can be determined. Various compliance times are required depending on the helicopter model. The short compliance times involved are required because the previously described critical unsafe condition can adversely affect the controllability or structural integrity of the helicopter. Therefore, since initial and repetitive inspections of the MGB base plate for cracking are required at short time intervals, this AD must be issued immediately.

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

We estimate that this AD will affect 142 helicopters and that the initial inspection will take approximately 0.5 work hour. Each recurring inspection will take approximately 0.25 work hour, and replacing the MGB, if necessary, will take approximately 4 work hours to accomplish, all at an average labor rate of $65 per work hour. It will cost approximately $25,000 to repair a cracked MGB base plate. Based on these figures, the total cost impact of the AD on U.S. operators is estimated to be $138,067, assuming that each of the 135 Model AS 365 and SA 366 helicopters are inspected 40 times (the initial inspection plus 39 recurring inspections) and each of the 7 Model EC 155 helicopters are inspected 200 times (the initial inspection plus 199 recurring inspections), and one cracked MGB base plate is found requiring the replacement of one MGB. This estimate also assumes that a replacement MGB will not need to be purchased while a previously-installed MGB is being repaired.

This AD is a final rule that involves requirements that affect flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to submit any written data, views, or arguments regarding this AD. Send your comments to an address listed under ADDRESSES. Include “Docket No. FAA-2004-18850; Directorate Identifier 2004-SW-19-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the AD. We will consider all comments received by the closing date and may amend the AD in light of those comments.

We will post all comments we receive, without change, to http://dms.dot.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this AD. Using the search function of our docket Web site, you can find and read the comments to any of our dockets, including the name of the individual who sent the comment. 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 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 an economic evaluation of the estimated costs to comply with this AD. See the DMS to examine the economic evaluation.

A Notice of Proposed Rule Making was published in the Federal Register (68 FR 70482) on December 18, 2003. No public hearing was held. Two organizations, two law firms and two attorneys submitted written comments.

The Office is amending its rules to eliminate the requirement that the original certificate of registration or a certified copy thereof accompany a request for amendment of a registration, a request for correction of a registration, or an application to surrender a registration for cancellation.

References below to “the Act,” “the Trademark Act,” or “the statute” refer to the Trademark Act of 1946, 15 U.S.C. 1051 et seq. , as amended.

The Office is eliminating the requirement under §§ 2.173, 2.174, and 2.175(b) that a request for amendment or correction of a registration under section 7 of the Trademark Act be accompanied by the original certificate of registration or a certified copy thereof. Under the current rules, the Office attaches an updated registration certificate showing the amendment or correction to the original certificate and returns it to the registrant. However, the Office believes that requiring the registrant to submit the original certificate or a certified copy for the purpose of physically attaching an updated registration certificate, only to return the original certificate (or certified copy thereof) to the owner of record is unnecessary and inefficient. Instead, the Office will send the updated registration certificate showing the amendment or correction to the registrant, and instruct the registrant to attach it to the certificate of registration. The Office will update its own records to show the amendment or correction and attach an updated registration certificate to the printed copy of the registration on file in the Office.

The Office is also eliminating the requirement under § 2.172, that an application for surrender of a registration for cancellation under section 7 of the Trademark Act be accompanied by the original certificate, if not lost or destroyed. The requirement is unnecessary and inefficient. The Office will process a request for cancellation regardless of whether the original registration certificate accompanies the request. If the original certificate is submitted, the Office will destroy the certificate once the registration is cancelled.

The proposed amendment to §§ 2.174 and 2.175 required registrants to file all requests for correction of a registration within one year after the date of registration, even where a mistake in a registration resulted from an Office error. This change in practice was proposed because granting requests to correct errors in registrations years after the date of registration caused confusion to examining attorneys and third parties who might have previously searched Office records and relied on information about existing registrations.

Four comments stated that many of the mistakes go unnoticed for years after issuance and are not discovered until it is time to file an affidavit of use or excusable nonuse under Section 8 of the Trademark Act. In an example provided by one commenter, a registrant received an error-free registration certificate and years later after preparing an affidavit of use discovered an error on the registration in the Office's Trademark electronic database. Two comments stated that denying requests to correct errors in registrations after the one-year limit could result in the loss of substantive trademark rights and that maintaining a registration with inaccurate information could cause problems for registrants in establishing a complete chain of title, seeking foreign and international trademark rights, and protecting against trademark infringement. Accordingly, the Office has reconsidered this proposed change and at this time is not imposing a time limit for requests for corrections to registrations under §§ 2.174 and 2.175. The benefits of providing accurate information about registrations in the records of the Office, protecting the rights of owners to seek correction of errors in registrations and avoiding possible loss of substantive trademark rights due to mistakes in the registration outweigh the concerns that would warrant a time limit on filing requests for corrections.

The Office is amending §§ 2.172, 2.173, 2.174, 2.175, and 2.176.

The Office is amending § 2.172 to eliminate the requirement that an application to surrender a trademark registration for cancellation be accompanied by the original certificate of registration.

The Office is amending § 2.173 to eliminate the requirement that the original certificate of registration or a certified copy thereof accompany a request for amendment of a trademark registration.

The Office is amending § 2.174 to eliminate the requirement that the original certificate of registration or a certified copy thereof accompany a request for correction of a mistake by the Office in a trademark registration pursuant to section 7(g) of the Trademark Act.

The Office is amending § 2.175 to eliminate the requirement that the original certificate of registration or a certified copy thereof accompany a request for correction of a mistake by a registrant in a trademark registration pursuant to section 7(g) of the Trademark Act.

The Office is amending § 2.176 to change “Examiner of Trademarks” to “Post Registration Examiners.”

The changes in this final rule relate solely to the procedure to be followed in requesting an amendment or correction of a registration. Therefore, these rule changes involve interpretive rules, or rules of agency practice and procedure under 5 U.S.C. 553(b)(A), and prior notice and an opportunity for public comment were not required pursuant to 5 U.S.C. 553(b)(A) (or any other law). See Bachow Communications Inc. v. FCC , 237 F.3d 683, 690 (D.C. Cir. 2001) (rules governing an application process are “rules of agency organization, procedure, or practice” and exempt from the Administrative Procedure Act's notice and comment requirement); Merck & Co., Inc. v. Kessler , 80 F.3d 1543, 1549-50, 38 USPQ2d 1347, 1351 (Fed. Cir. 1996) (the rules of practice promulgated under the authority of former 35 U.S.C. 6(a) (now in 35 U.S.C. 2(b)(2)) are not substantive rules (to which the notice and comment requirements of the Administrative Procedure Act apply)); Fressola v. Manbeck , 36 USPQ2d 1211, 1215 (D.D.C. 1995) (“it is doubtful whether any of the rules formulated to govern patent and trade-mark practice are other than ‘interpretative rules, general statements of policy, * * * procedure, or practice” ’ (quoting C.W. Ooms, The United States Patent Office and the Administrative Procedure Act , 38 Trademark Rep. 149, 153 (1948)).

Nevertheless, the Office published a notice of proposed rule making in the Federal Register , 68 FR 70482 (Dec. 18, 2003), and in the Official Gazette of the United States Patent Office on January 13, 2004, in order to solicit public participation with regard to this rule package. Pursuant to the notice of proposed rule making, the Deputy General Counsel for General Law of the United States Patent and Trademark Office certified to the Chief Counsel for Advocacy of the Small Business Administration under the provisions of section 605(b) of the Regulatory Flexibility Act that the proposed rule would not have a significant economic impact on a substantial number of small entities. No comments were received which referenced any impact the proposed rules would have on small entities.

This final rule package does not impose any new fees on members of the public. In fact, because this final rule eliminates the requirement that registrants must submit the original certificate of registration or a certified copy thereof with a request for amendment, correction, or surrender of a registration, this final rule will lessen the financial burden on many registrants. In situations where a registrant does not have a certified copy of his or her own registration, the registrant, whether a large or small entity, will no longer be required to pay fees to the USPTO to obtain a certified copy of his or her own registration.

Accordingly, the Deputy General Counsel for General Law of the United States Patent and Trademark Office has certified to the Chief Counsel for Advocacy of the Small Business Administration that the rule changes will not have a significant impact on a substantial number of small entities (Regulatory Flexibility Act, 5 U.S.C. 605(b)).

This rule making does not contain policies with federalism implications sufficient to warrant preparation of a Federalism Assessment under Executive Order 13132 (Aug. 4, 1999).

This rule making has been determined not to be significant for purposes of Executive Order 12866 (Sept. 30, 1993).

This rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). Existing collections of information and recordkeeping requirements have been reviewed and approved by OMB under OMB Control Number 0651-0009, Trademark Processing. 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 currently valid OMB control number.

Issue 1 of the Purchasing Manual was issued on January 31, 1997, as the successor to former USPS Publication 41, the U.S. Postal Service Procurement Manual. At that time, purchasing organizations were advised that, pending the updating of contract-writing systems, the purchasing organizations could determine, subject to specific limitations, when and to what extent they may adopt its policies and procedures. The Purchasing Manual then became fully effective on January 27, 2000.

Subsequently, updated editions of the Purchasing Manual were issued on January 31, 2002 (Issue 2), and December 25, 2003 (Issue 3). Pending the updating of purchasing support systems for consistency with the new policies contained in Issue 3, purchasing organizations were advised that they might adopt the policies and procedures contained in Issue 3 immediately, or might continue to follow the policies and procedures contained in Issue 2. If a purchasing organization adopted Issue 3 policies and procedures for any category or categories of purchases, it would be required to use those policies and procedures consistently for that category or categories, and not revert to previous policies and procedures. Contracting officers were required to ensure that solicitations and other purchasing documents made prospective offerors fully aware of the authority (Issue 3 or Issue 2, as revised through April 18, 2002) pursuant to which an individual purchase was made. Particular care was required that previous versions of provisions and clauses were not used in purchases made under the policies and procedures of Issue 3, and vice versa. To date, the Postal Service has not formally transitioned from PM Issue 2 to PM Issue 3 primarily because of problems in updating purchasing support systems for consistency with the new policies contained in Issue 3. The end of this transition period will be announced in the Federal Register .

The Purchasing Manual is published and available to all users on the World Wide Web at http://www.usps.com/business, and contains the Postal Service's purchasing policy.

It will be noted that on March 24, 2004 (69 FR 13786), the Postal Service published a proposed rule in the Federal Register entitled “Purchasing of Property and Services”. In this document, the Postal Service proposed to amend its regulations in order to implement the acquisition portions of its Transformation Plan (April 2000) and the similar recommendations of the President's Commission on the United States Postal Service (July 2003) as they relate to the acquisition of property and services. That earlier, ongoing rulemaking is proceeding separately and independently, and should not be considered to be a part of this current notice.

On June 28, 2004 (69 FR 36018), the Postal Service published in the Federal Register a detailed discussion of the policy changes and other major features contained in Issue 1 of the Purchasing Manual. Subsequently, on July 29, 2004 (69 FR 45270) the Postal Service published a detailed discussion of the policy changes and other major features contained in Issue 2 of the Purchasing Manual. The following is a similar discussion of the most significant changes in Postal Service purchasing policy contained in Issue 3.

Overview: Issue 3 of the Postal Service Purchasing Manual continues the efforts of the Postal Service (1) to reflect the best practices of the private and public sectors, (2) to streamline the purchasing process and ensure it concentrates on furthering the business and competitive interests of the Postal Service, and (3) to provide a policy structure that furthers the Postal Service's use of supply chain management business practices. Issue 3 also contains the cumulative changes made to Issue 2 of the Purchasing Manual between January 31, 2002, and December 25, 2003. A discussion of all significant changes contained in Issue 3 is available to all users on the World Wide Web at http://www.usps.com/business.

Organizational Changes: The restructuring of Purchasing and Materials into Supply Management has resulted in numerous changes in organization names ( i.e., Purchasing and Materials is now called Supply Management) and managerial titles and authorities. These changes are reflected throughout Purchasing Manual Issue 3.

Chapter 1, Authority, Responsibility and Policy: 1.1.2.b Supply Management Policy Committee. The Supply Management Policy Committee (SMPC) replaces the Purchasing Policy Committee. SMPC membership has changed to reflect the SM organization.

1.4.1.b.4 Required Approvals has been revised to state that the Vice President (VP), Supply Management's (SM) approval of a proposed contract award or modification serves as the delegation of authority required by PM 1.4.2.d Actions Exceeding a Contracting Officer's Delegated Authority.

1.4.2.c Delegations of Authority has been revised to state that, unless specifically limited in his or her letter of delegation, a contracting officer may award a contract regardless of commodity group.

1.4.4.a.2 Appointment Authority has been revised to state that contracting officer appointment officials must keep a record of all letters of delegation, certificates of appointment, and documentation concerning a contracting officer's education, experience and training related to the individual CO's level.

1.4.4.b.3 Qualifications has been revised in a number of areas to (1) specify that a certification as a certified purchase manager from the Institute of Supply Management meets the certification requirement for level I contracting officer; and (2) establish new training requirements.

Chapter 2, Purchase Planning: 2.1.3.b.2 Responsibilities (Purchase Planning) has been revised to state that the purchase team has the responsibility to maintain and apply the cost and pricing models in order to optimize the total cost of ownership, and in 2.1.3.b.3, transportation planning matters have been added as areas in which materials professionals may offer expertise.

2.1.5.b Elements (Individual Purchase Plans) has been revised to add two elements (subparagraphs 7 and 21) that a purchase plan should include.

2.1.6.c.4 Reviews and Approvals (Noncompetitive Purchase Method) has been revised to clarify approval authority for noncompetitive purchases.

2.1.7.b.3 Developing Strategies (Supplier Selection Strategy) has been revised to state that purchase teams should take care to ensure that solicitations do not include unnecessary minimum standards, mandatory feature call outs or other inappropriate limitations on supplier selection.

2.2.1.c Clauses (Quality Requirements). This paragraph has been revised to discuss the use of new Clauses 2-1, Inspection and Acceptance and 2-2, Quality Management System. These clauses replace previous Clauses 2-1, Inspection and Acceptance—Supplies, 2-2, Quality Assurance I—Supplies, 2-3, Quality Assurance II—Supplies, 2-24, Inspection and Acceptance—Supplies—Nonfixed Price, 2-48, Inspection and Acceptance—Services, and 2-49, Quality Assurance—Services, all of which have been deleted.

2.2.5.f F.O.B. Points (Delivery and Acceptance). Subparagraph 1 has been revised to state that solicitations should require offerors to include both f.o.b. origin and destination prices for transportation analysis and that such analysis is available from field material management specialists and Headquarters. Subparagraph 3 has been revised to add shipment base points to the areas that may be specified as f.o.b. destination.

2.2.10.c Sharing Savings (Value Engineering). This paragraph has been revised to change the sharing scheme to one that is based on a negotiated arrangement contained in the contract. Paragraph 2.2.10.e Evaluation has been revised to for clarity, and Clause 2-22, Value Engineering, has been revised to reflect these changes.

2.2.11 Price Reduction. This new section states that when they plan to award strategically-sourced or long-term contracts, purchase teams must consider the inclusion of new Clauses 2-48, Most Favored Customer Pricing and 2-49, Cost/Price Reduction. The new clauses are included in Appendix B.

2.2.12 Investment Recovery. This new section states that an effective and efficient investment recovery plan can further the Postal Service's supply chain management goals, and directs purchase teams to include new Provision 2-8, Investment Recovery, in solicitations when it is determined that investment recovery will play a significant role in the overall success of the purchase. The new provision is included in Appendix A.

2.4.4.h Provision (Cost-Reimbursement Contracts). This new paragraph requires purchase teams to include new Provision 2-9, Accounting System Guidelines—Cost Type Contracts, in all solicitations for cost-type contracts the estimated value of which is $100,000 or more. The provision requires pre-award review and approval of the potential supplier's cost accounting system by the Postal Service's Inspector General or representative, and delineates the elements required in such accounting systems. The new provision is included in Appendix A.

Chapter 3, Supplier Relations: 3.3.3.b Procurement Lists (Workshops for People who are Blind or Severely Disabled) has been revised to state that additions and deletions to the Procurement List are published in the Federal Register as they occur.

3.4.5 Department of Veterans Affairs has been revised to provide the proper name of this department.

3.7 Debarment, Suspension and Ineligibility. This subchapter has been revised extensively. Some of the highlights of the revision are:

3.7.1.a Definitions contains a new set of relevant definitions.

3.7.1.c Treatment of Suppliers on the Postal Service and GSA List has been rewritten and now states that suppliers proposed for debarment are treated the same as those which are debarred or suspended and excluded from receiving contracts unless other treatment is approved by the Vice President, Supply Management. In addition, the VP, SM, may direct the termination for default of any contracts with a supplier which has been debarred, suspended or made ineligible.

3.7.1.d Causes for Debarment has been rewritten to add to the causes for which a supplier may be debarred, and to state that the existence for several of the causes for debarment will be established by a preponderance of the evidence.

3.7.1.e Mitigating Factors is a new section, and contains a series of factors the VP, SM, should consider when deciding whether debarment is warranted.

3.7.1.f Period of Debarment has been revised in paragraph 2., to state that the VP, SM, may refer requests for removal from debarment or a reduction of the period of debarment to the Judicial Officer for a hearing and findings of fact which the VP will then consider.

3.7.1.g Procedural Requirements for Debarment has been revised to state that debarment decisions are made based on the preponderance of the evidence, and that, if there are questions regarding material facts, that the VP, SM, may (1) seek additional information or (2) request the Judicial Officer to hold fact-finding hearings on the matter. The VP, SM, may reject findings when they are deemed arbitrary or capricious or clearly erroneous.

3.7.1.m Solicitation Provision is a new section that requires that offerors complete a new paragraph e. of Provision 4-3, Representations and Certifications, when the contract value is expected to exceed $100,000.

Chapter 4, Purchasing: 4.2.2.e Solicitation Provisions. This paragraph has been revised to state (1) that when a purchase team decides to modify, supplement or add to Provision 4-1, Standard Solicitation Provisions, or paragraphs b. and c. of Provision 4-2, Evaluation, counsel need not be consulted if a provision already contained in Appendix A, Solicitations, will replace similar subject matter in Provision 4-1 or b. and c. of Provision 4-2; and (2) that counsel should be consulted when the evaluation scheme to be used in Provision 4-2 is unusual, particularly complex, or there are other circumstances under which such consultation is advisable. Similar changes are reflected in A.2.1, Solicitation Contents in Appendix A, Solicitations.

4.2.5.d.3 Documentation (Best Value Determinations) has been revised to state that this documentation should include the extent and result of any discussions with the supplier awarded the contract and any other offerors.

4.2.7.a Clause 4-1 General Terms and Conditions has been revised to state that replacing subject matter contained in this clause with the text of a PM clause addressing the same subject matter does not require consultation with counsel. Similar changes are reflected in B.2.1 in Appendix B, Contract Clauses.

4.2.7.b Clause 4-2 Contract Terms and Conditions Required To Implement Policies, Statutes, or Executive Orders has been revised to state (1) that neither this clause nor any of the clauses added by reference may be modified unless a deviation has been reviewed and approved by an individual at a higher level than the contracting officer who holds deviation approval authority; and (2) that any changes to paragraph b of this clause (Examination of Records) must be reviewed by assigned counsel and the Office of the Inspector General before a related deviation request is submitted.

4.2.7.d Modifying Clauses has been revised to agree with the revision to 4.2.7.a and 4.2.7.b, above.

4.5.5.a.6 Definitions (Information Technology) has been revised to provide a new definition of this term.

4.5.5.b.6 Security Considerations (Information Technology) has been revised to state that purchase teams ensure that specifications or statements of work for IT purchases address the security aspects of the Business Impact Assessment (BIA).

Chapter 5, Contract Pricing: 5.2.12.d Educational Institutions has been revised to reference the new Office of Management and Budget Circular (OMB Circular A-21) that establishes the indirect cost rates for cost-reimbursement contracts with educational institutions and to provide a new source for the Directory of Federal Contract Audit Offices.

Chapter 6, Contract Administration: 6.1.2.a.7 Contracting Officer Responsibilities (Contract Administration Functions) has been revised to state that, when appropriate, the contracting officer is responsible for including in the contract file the business reason for a particular action.

Chapter 7, Bonds, Insurance and Taxes: 7.1.8.g.1 Contract Modifications (Execution of Bonds) has been revised to state that, when a contract modification increases the contract price, the supplier and the surety must execute a consent of surety and increase the penal amount, and submit it to the contracting officer.

Chapter 8, Patents and Data Rights: No significant changes have been made in this Chapter.

Chapter 9, Labor Policies: 9.4.5.l Liquidated Damages has been revised to state that, under certain circumstances, when the VP, SM, finds that an assessment of liquidated damages is incorrect, the VP may adjust the damages, or release the supplier, lessor or subcontractor from liability when the amount of damages is $500 or less.

9.7.2.e Contracts With a Religious Corporation, Association, or Educational Institution or Society (Exempt Contracts) is a new paragraph that states that, when contracting with these types of organizations, it is not a violation of Section 202 of Executive Order 11246 to employ individuals of a certain religion to perform work connected with the carrying-on of such an entity. Previous paragraphs 9.7.2.e and 9.7.2.f are renumbered as 9.7.2.f and 9.7.2.g.

9.10 Veterans has been revised as a result of the passage of the Veterans' Employment Opportunities Act and the Secretary of Labor's related implementing regulations. Clause 9-14 Affirmative Action for Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans has been similarly revised.

Appendix A, Solicitations: A.2.1 Solicitation Contents has been revised along the lines discussed in 4.2.2.e, above.

Provision 2-8 Investment Recovery is a new provision and has been added as discussed in 2.2.12 above.

Provision 2-9 Accounting System Guidelines—Cost Type Contracts is a new provision that has been added as discussed in 2.4.4.h above.

Provision 4-1 Standard Solicitation Provisions paragraph b., Period for Acceptance of Offers, has been deleted.

Provision 4-3 Representations and Certifications has been revised to include a new paragraph e (Certification Regarding Debarment, Proposed Debarment, and Other Matters) as discussed in 3.7 above.

Appendix B, Contract Clauses: B.2.1 Clause 4-1 General Terms and Conditions has been revised along the lines discussed in 4.2.7.d, above.

B.2.2 Clause 4-2 Contract Terms and Conditions Required To Implement Policies, Statutes, or Executive Orders has been revised along the lines discussed in 4.2.7.a and d, above.

Clauses 2-1 Inspection and Acceptance and 2-2 Quality Management System. As discussed in 2.2.1.c, above, this clause and Clause 2-2 replace previous Clauses 2-1, 2-2, 2-3, 2-24, 2-48 and 2-49.

Clause 2-9 Definition of Delivery Terms and Supplier's Responsibilities has been revised for clarity.

Clause 2-22 Value Engineering Incentive has been revised along the lines of 2.2.10.c above.

Clauses 2-48 Most Favored Customer Pricing and 2-49, Cost/Price Reduction are two new clauses as discussed in 2.2.11 above.

Clause 3-2 Participation of Small, Minority and Woman-Owned Businesses has been revised in b.(1) by stating that showing the amount of money paid to subcontractors during the reporting period is one of the methods by which suppliers report subcontracting activity.

Clause 4-1 General Terms and Conditions has been revised by adding new c.1.(e) which states that the delivery or performance schedule is one of the contractual elements the contracting officer may change under the Changes paragraph of this clause. Paragraph m. has also been revised to state that the debarment, suspension, or ineligibility of a supplier, its partners, officers, or principal owners may constitute an act of default under the contract, and that act will not be subject to notice and cure pursuant to any termination of default provision of the contract.

Clause 4-2 Contract Terms and Conditions Required To Implement Policies, Statutes, or Executive Orders. Paragraph b., Examination of Records, has been revised. In addition, no changes may be made to this paragraph before (1) consultation with assigned counsel and the Office of the Inspector General and (2) a deviation has been reviewed and approved by a higher level than the contracting officer who holds deviation approval authority.

Clause 4-5 Inspection of Professional Services has been revised by deleting the final sentence.

Clause 4-14 Software Development Warranty has been revised for clarity.

Clause 7-5 Errors and Omissions has been revised for clarity.

Clause 8-1 Patent Rights has been revised by removing the reference to Form 7398, Report of Inventions and Subcontracts (this form is obsolete) and by stating that the reports required under this clause must be in a form acceptable to the contracting officer.

Clause 9-14 Affirmative Action for Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans has been revised to reflect the changes discussed in 9.10 above.

Appendices D Rules of Practice in Proceedings Relative to Debarment and Suspension From Contracting and E, Rules of Practice Before the Postal Service Board of Contract Appeals: These appendices have been revised to correct obsolete mailing addresses.

For the purpose of this document, we are giving meaning to certain words or initials as follows:

(i) The words or initials Act or CAA mean or refer to the Clean Air Act, unless the context indicates otherwise.

(ii) The words EPA , we , us or our mean or refer to the United States Environmental Protection Agency.

(iii) The initials SIP mean or refer to State Implementation Plan.

(iv) The words state or Utah mean the State of Utah, unless the context indicates otherwise.

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

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

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

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

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

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

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

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

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

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

On July 21, 1992, EPA promulgated revisions to Federal PSD and nonattainment new source review (NSR) permitting requirements, as well as to the Federal new source performance standard (NSPS) requirements in 40 CFR part 60, regarding utility pollution control projects (57 FR 32314-32339). Specifically, EPA made changes to the definition of “major modification” in 40 CFR parts 51 and 52 to set forth the conditions under which the addition, replacement, or use at existing utility generating units of any system or device whose primary function is the reduction of air pollutants (including the switching to less polluting fuel where the primary purpose of the switch will be the reduction of air pollutants) will or will not subject the source to preconstruction review.

In addition, in the July 1992 notice, EPA amended its NSR regulations as they apply to utilities to (1) clarify the NSR baseline for determining whether a proposed physical or operational change will subject a utility to the preconstruction review requirements of these provisions; (2) set forth an actual-to-future actual methodology for determining whether a physical or operational change is subject to NSR; (3) provide further clarification of the existing regulatory requirement that only those increases in emission that actually result from the physical change or change in the method of operation can be considered in determining whether the proposed change subjects the utility to NSR requirements; and (4) implement sections 409 and 415 of title IV of the 1990 Amendments of the Clean Air Act which create special NSPS treatment for certain repowering projects and limited NSR exemptions for temporary and permanent CCT projects and for certain “very clean” units. Refer to the July 21, 1992, Federal Register document for further information.

States were not required to adopt revisions to implement these changes, although these changes are in effect in areas where the Federal PSD permitting regulations apply. Utah has opted to revise its NSR program to incorporate the changes to EPA's NSR rules promulgated on July 21, 1992.

On November 9, 2001, and September 16, 2003, the State of Utah submitted formal revisions to its State Implementation Plan (SIP). 1 Specifically, in the general definition rule, the submittals revise the definitions of “Actual Emissions” and “Major Modification” and adds the following definitions: “Clean Coal Technology,” “Clean Coal Technology Demonstration Project,” “Electric Utility Steam Generating Unit,” “Emissions Unit,” “Pollution Control Project,” “Reactivation of Very Clean Coal-Fired Electric Utility Steam Generating Unit,” “Repowering,” “Representative Actual Annual Emissions,” and “Temporary Clean Coal Technology Demonstration Project.” In the prevention of significant deterioration (PSD) rule a definition for “major modification” was added.

We have reviewed the new and revised definitions submitted by Utah. We have found that the revisions are consistent with all of the regulatory revisions promulgated by EPA on July 21, 1992.

EPA is approving Utah's SIP revisions submitted on November 9, 2001, and September 16, 2003. Specifically, in the general definitions regulation, R307-101-2, we are approving the revisions to the definitions of “Actual Emissions” and “Major Modification” and the addition of the definitions: “Clean Coal Technology,” “Clean Coal Technology Demonstration Project,” “Electric Utility Steam Generating Unit,” “Emissions Unit,” “Pollution Control Project,” “Reactivation of Very Clean Coal-Fired Electric Utility Steam Generating Unit,” “Repowering,” “Representative Actual Annual Emissions,” and “Temporary Clean Coal Technology Demonstration Project.” In the PSD regulation, R307-405-1, we are approving the addition of a definition for “Major Modification.”

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. EPA does not anticipate any adverse comments as this Utah SIP approval is only a change to bring Utah's current SIP into alignment with the NSR revisions EPA promulgated on July 21, 1992 (57 FR 32314). However, in the “Proposed Rules” section of today's Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective October 18, 2004, without further notice unless the Agency receives adverse comments by September 20, 2004. If the EPA receives adverse comments, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves State law as meeting Federal requirements and imposes no additional requirements beyond those imposed by State law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a State rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

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

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 18, 2004. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2).)

This supplemental information section is organized as follows:

This action applies to a single source, Lafarge Corporation's facility located on Red Rock Road in Saint Paul, Ramsey County, Minnesota.

In this action, EPA is approving into the Minnesota PM SIP certain portions of Minnesota Air Emission Permit No. 12300353-002, issued to Lafarge Corporation—Red Rock Terminal on May 7, 2002. Specifically, EPA is only approving into the SIP those portions of the permit cited as “Title I condition: SIP for PM10 NAAQS.”

EPA is taking this action because the State's request does not change any of the emission limitations currently in the SIP. The revised permit includes the addition of a pneumatic vacuum pump and a new cement silo. The revision to the SIP does not approve any new construction or allow an increase in emissions, thereby providing for attainment and maintenance of the PM National Ambient Air Quality Standards (NAAQS) and satisfying the applicable PM requirements of the Act.

The pneumatic vacuum pump, which was in place and already controlled by a baghouse, had inadvertently been omitted from the Red Rock Road permit approved into the SIP by EPA in 1999. After consulting EPA, MPCA was advised that a major amendment to the permit was not needed to include this existing unit and that the pneumatic vacuum pump unit should be added into the permit during the next major amendment. Therefore, MPCA included the emission unit and baghouse in the 2002 permit amendment.

The 2002 permit includes a major amendment authorizing the additional emission point associated with a new cement silo. The silo emissions are to be controlled by a baghouse located on the top of the silo. Although actual emissions of PM from the facility would most likely decrease, the installation of the new unit did change the modeling parameters for the facility, thereby requiring a revision to the SIP.

Lafarge's Red Rock Road facility is located at 1363 Red Rock Road in Saint Paul, Ramsey County, Minnesota. On July 22, 1998, MPCA submitted to EPA a SIP revision for Ramsey County, Minnesota, for the control of PM emissions from certain sources located along Red Rock Road. Included in this submittal was a State operating permit for Lafarge Corporation (Air Emission Permit No. 12300353-001 issued by MPCA on April 14, 1998), which includes and identifies the Title I SIP conditions for the Red Rock Road facility. The EPA took final action approving the Lafarge Red Rock Road permit into the PM SIP on August 13, 1999 (64 FR 44131).

The SIP revision submitted by MPCA on July 18, 2002, consists of a revised State operating permit issued to the Lafarge Red Rock Road facility. The State has requested that EPA approve the following:

“(1) The inclusion of only the portions of the revised Lafarge-Rock Terminal permit cited as “Title I condition: SIP for PM10 NAAQS” into the Minnesota PM SIP.”

SIP control measures were contained in permits issued to culpable sources in Minnesota until 1990 when EPA determined that limits in State-issued permits are not federally enforceable because the permits expire. The State then issued permanent Administrative Orders to culpable sources in nonattainment areas from 1991 to February of 1996.

Minnesota's Title V permitting rule, approved into the State SIP on May 2, 1995 (60 FR 21447), includes the term “Title I condition” which was written, in part, to satisfy EPA requirements that SIP control measures remain permanent. A “Title I condition” is defined as “any condition based on source-specific determination of ambient impacts imposed for the purposes of achieving or maintaining attainment with the national ambient air quality standard and which was part of the State implementation plan approved by EPA or submitted to the EPA pending approval under section 110 of the act * * *.” The rule also states that “Title I conditions and the permittee's obligation to comply with them, shall not expire, regardless of the expiration of the other conditions of the permit.” Further, “any title I condition shall remain in effect without regard to permit expiration or reissuance, and shall be restated in the reissued permit.”

Minnesota has since resumed using permits as the enforceable document for imposing emission limitations and compliance requirements in SIPs. The SIP requirements in the permit submitted by MPCA are cited as “Title I condition: SIP for PM10 NAAQS,” therefore assuring that the SIP requirements will remain permanent and enforceable. In addition, EPA reviewed the State's procedure for using permits to implement site-specific SIP requirements and found it to be acceptable under both Titles I and V of the Act (July 3, 1997 letter from David Kee, EPA, to Michael J. Sandusky, MPCA). The MPCA has committed to using this procedure if the Title I SIP conditions in the permit issued to the Lafarge Red Rock Road facility and included in the SIP submittal need to be revised in the future.

EPA is approving the site-specific SIP revision for the Lafarge Red Rock Road facility, located in Saint Paul, Ramsey County, Minnesota. Specifically, EPA is approving into the SIP only those portions of Lafarge's State operating permit cited as “Title I condition: SIP for PM10 NAAQS.”

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget.

For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001).

This action merely approves State law as meeting Federal requirements and imposes no additional requirements beyond those imposed by State law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ).

Because this rule approves pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

This action also does not have federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a State rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act.

This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

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

As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct.

EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order, and has determined that the rule's requirements do not constitute a taking.

This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, EPA promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 18, 2004. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2).)

FEMA makes the final determinations listed below of modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Mitigation Division Director of the Emergency Preparedness and Response Directorate has resolved any appeals resulting from this notification.

The modified BFEs are not listed for each community in this notice. However, this rule includes the address of the Chief Executive Officer of the community where the modified base flood elevation determinations are available for inspection.

The modifications are made pursuant to section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq. , and with 44 CFR part 65.

For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.

The modified BFEs are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).

These modified elevations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State or regional entities.

These modified elevations are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings.

The changes in BFEs are in accordance with 44 CFR 65.4.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Mitigation Division Director of the Emergency Preparedness and Response Directorate certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because modified BFEs are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are required to maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 12612, Federalism. This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

Executive Order 12778, Civil Justice Reform. This rule meets the applicable standards of section 2(b)(2) of Executive Order 12778.

The Federal Emergency Management Agency makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Mitigation Division Director of the Emergency Preparedness and Response Directorate has resolved any appeals resulting from this notification.

The modified BFEs are not listed for each community in this notice. However, this rule includes the address of the Chief Executive Officer of the community where the modified BFE determinations are available for inspection.

The modifications are made pursuant to section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq. , and with 44 CFR part 65.

For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.

The modified BFEs are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).

These modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State, or regional entities.

These modified BFEs are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings.

The changes in BFEs are in accordance with 44 CFR 65.4.

National Environmental Policy Act . This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. No environmental impact assessment has been prepared.

Regulatory Flexibility Act . The Mitigation Division Director of the Emergency Preparedness and Response Directorate certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because modified base flood elevations are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are required to maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.

Regulatory Classification . This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 12612, Federalism . This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

Executive Order 12778, Civil Justice Reform . This rule meets the applicable standards of section 2(b)(2) of Executive Order 12778.

The modified BFEs are not listed for each community in this interim rule. However, the address of the Chief Executive Officer of the community where the modified BFE determinations are available for inspection is provided.

Any request for reconsideration must be based upon knowledge of changed conditions, or upon new scientific or technical data.

The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq. , and with 44 CFR part 65.

For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.

The modified BFEs are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).

These modified elevations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State or regional entities.

The changes in BFEs are in accordance with 44 CFR 65.4.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Mitigation Division Director of the Emergency Preparedness and Response Directorate certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because modified BFEs are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are required to maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.

Regulatory Classification . This interim rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 12612, Federalism . This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

Executive Order 12778, Civil Justice Reform. This rule meets the applicable standards of section 2(b)(2) of Executive Order 12778.

FEMA makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Mitigation Division Director of the Emergency Preparedness and Response Directorate, has resolved any appeals resulting from this notification.

This final rule is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67.

The Agency has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.

Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community.

The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Mitigation Division Director of the Emergency Preparedness and Response Directorate certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because final or modified BFEs are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and are required to establish and maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 12612, Federalism. This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

Executive Order 12778, Civil Justice Reform. This rule meets the applicable standards of section 2(b)(2) of Executive Order 12778.

The Federal Emergency Management Agency makes the final determinations listed below of BFEs and modified BFEs for each community listed.

These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Mitigation Division Director of the Emergency Preparedness and Response Directorate has resolved any appeals resulting from this notification.

This final rule is issued in accordance with Section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and 44 CFR part 67.

The Federal Emergency Management Agency has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.

Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community.

The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Mitigation Division Director of the Emergency Preparedness and Response Directorate certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because modified base flood elevations are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are required to establish and maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 12612, Federalism. This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

Executive Order 12778, Civil Justice Reform. This rule meets the applicable standards of Section 2(b)(2) of Executive Order 12778.

This is a synopsis of the Commission's Report and Order , MB Docket Nos. 04-127, 04-128, 04-129, 04-130, 04-131, 04-132, 04-133, 04-135, 04-136, 04-137, 04-138 adopted August 10, 2004 and released August 12 , 2004. The full text of this Commission decision is available for inspection and copying during regular business hours at the FCC's Reference Information Center, Portals II, 445 Twelfth Street, SW., Room CY-A257, Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160, or via e-mail http://www.BCPIWEB.com . The Commission will send a copy of the 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).

At the request of American Family Association, the Audio Division grants a petition requesting to reserve vacant Channel 240A at Burnet, Texas for noncommercial educational use. The reference coordinates for Channel *240A at Burnet are 30-51-05 North Latitude and 98-17-35 West Longitude. At the request of American Family Association, the Audio Division grants a petition to reserve vacant Channel 248C2 at Denver City, Texas for noncommercial educational use. The reference coordinates for Channel *248C2 at Denver City are 33-01-53 North Latitude and 102-48-47 West Longitude. At the request of American Family Association, the Audio Division grants a petition requesting to reserve vacant Channel 260A at Van Alstyne, Texas for noncommercial educational use. The reference coordinates for Channel *260A at Van Alstyne are 33-27-08 North Latitude and 96-27-21 West Longitude. At the request of Intermountain Educational Communications, Inc., the Audio Division grants a petition requesting to reserve vacant Channel 260A at Fountain Green, Utah for noncommercial educational use. The reference coordinates for Channel *260A at Fountain Green are 39-37-42 North Latitude and 111-38-24 West Longitude. At the request of Sister Sherry Lynn Foundation, Inc. and American Family Association, the Audio Division grants petitions requesting to reserve vacant Channel 296A at Shenandoah, Virginia for noncommercial educational use. The reference coordinates for Channel *296A at Shenandoah are 38-30-00 North Latitude and 78-36-33 West Longitude. At the request of Starboard Media Foundation, Inc., the Audio Division grants a petition requesting to reserve vacant Channel 268C3 at Augusta, Wisconsin for noncommercial educational use. The reference coordinates for Channel *268C3 at Augusta are 44-40-11 North Latitude and 90-57-55 West Longitude. At the request of Starboard Media Foundation, Inc., the Audio Division grants a petition requesting to reserve vacant Channel 232C2 at Hayward, Wisconsin for noncommercial educational use. The reference coordinates for Channel *232C2 at Hayward are 46-15-04 North Latitude and 91-23-01 West Longitude. At the request of Fine Arts Radio, Inc. and West Virginia Educational Broadcasting Authority, the Audio Division grants petitions requesting to reserve vacant Channel 287A at St. Marys, West Virginia for noncommercial educational use. The reference coordinates for Channel *287A at St. Marys are 39-18-03 North Latitude and 81-15-19 West Longitude.

The FM Table of Allotments currently lists Channel 257C1 at Barnwell, South Carolina, however, the Audio Division substituted Channel 257C1 for Channel 256C3 at Barnwell, SC, reallotted Channel 257C1 to Pembroke, Georgia, and modified the license of Station WBAW to specify operation on Channel 257C1 at Pembroke in MM Docket No. 00-18. As such, Channel 256C3 was allotted to Barnwell, SC as a replacement service not Channel 257C1. See 66 FR 55596, published November 2, 2001.

This is a summary of the Commission's Report and Order, MB Docket No. 03-98, adopted August 4, 2004, and released August 9, 2004. The full text of this Commission decision is available for inspection and copying during regular business hours in the FCC's Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC, 20554. The complete text of this decision may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC, 20554, telephone 202-863-2893. 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).

This is a synopsis of the Commission's Report and Order , MM Docket No. 02-40, adopted August 10, 2004, and released August 12, 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).

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

The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act [Public Law 107-56, 115 Stat. 272] was enacted on October 25, 2001. Section 1012 of the USA PATRIOT Act amended 49 U.S.C. Chapter 51 by adding a new sec. 5103a titled “Limitation on issuance of hazmat licenses.” Section 5103a(a)(1) provides:

FMCSA shares with TSA responsibility for implementing sec. 1012 of the USA PATRIOT Act.

For reasons described in its April 6, 2004 final rule ( Security Threat Assessment for Individuals Applying for a Hazardous Materials Endorsement for a Commercial Drivers License; Final Rule , 69 FR 17969), TSA is amending the April 1, 2004, deadline for States to begin collecting fingerprints from a driver requesting authority to transport hazardous materials in commerce. The new compliance date is January 31, 2005. Therefore, FMCSA revises the compliance date for hazardous materials security requirements published in its companion IFR (68 FR 23844, May 5, 2003) from April 1, 2004 to January 31, 2005 to coincide with the new TSA deadline.

FMCSA is issuing this IFR without prior notice and opportunity to comment pursuant to its authority under section 4(a) of the Administrative Procedure Act (5 U.S.C. 553(b)). This provision allows the agency to issue a final rule without notice and opportunity to comment when the agency for good cause finds that notice and comment procedures are “impracticable, unnecessary or contrary to the public interest.” This amended IFR is ministerial in nature. It changes the date on which States are required to collect fingerprints from individuals who are applying for, renewing, upgrading or transferring a CDL with a hazardous materials endorsement. Because the rule relieves a burden on stakeholders by extending the compliance date, FMCSA has concluded that it is within the scope of the May 5, 2003, IFR and that further notice and comment on this issue are unnecessary.

The agency intends to issue a final rule at a later date and will respond to comments to the May 5, 2003 IFR at that time.

The FMCSA has determined that this action is a significant regulatory action within the meaning of Executive Order 12866, and is significant within the meaning of the Department of Transportation's regulatory policies and procedures (DOT Order 2100.5 dated May 22, 1980; 44 FR 11034, February 26, 1979) because of significant public interest. This rule does not impose any costs on any public, private, or government sector, therefore further economic analysis is unnecessary. The Office of Management and Budget has completed its review of this rule under Executive Order 12866.

The Regulatory Flexibility Act of 1980 (RFA), as amended, was enacted by Congress to ensure that small entities (small businesses, small not-for-profit organizations, and small governmental jurisdictions) are not unnecessarily or disproportionately burdened by Federal regulations. The Regulatory Flexibility Act requires agencies to review rules to determine if they have “a significant economic impact on a substantial number of small entities.” I certify that the final rule will not have a significant economic impact on a substantial number of small entities. As noted above, this final rule applies only to State governments and does not impose any costs on any public, private, or government sector.

Executive Order 13132 requires FMCSA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under the Executive Order, FMCSA may construe a Federal statute to preempt State law only where, among other things, the exercise of State authority conflicts with the exercise of Federal authority under the federal statute.

Although this amended interim final rule potentially has direct effects on the States, they are not substantial because the rule will allow States more time to comply with the TSA regulation published on April 6, 2004 (69 FR 17969), and thus avoid the withholding of Federal-aid highway funds that could result from non-compliance with the TSA rule. FMCSA has determined that this amended interim final rule does not have sufficient federalism implications to warrant the preparation of a federalism assessment.

The provisions of 49 U.S.C. 31314 require DOT to withhold certain Federal-aid highway funds from States that fail to comply substantially with the requirements for State participation in the CDL program. As discussed in detail in the May 5 IFR [see 68 FR at 23847-23848], those provisions apply also to State compliance with portions of the TSA rule implementing sec. 1012 that apply to States. In addition, 49 U.S.C. 31312 authorizes DOT to prohibit States from issuing CDLs if the Secretary determines “that a State is in substantial noncompliance” with 49 U.S.C. chapter 313. These penalties are available for DOT to use when and if appropriate to encourage State compliance with TSA's sec. 1012 rule.

Catalog of Federal Domestic Assistance Program Number 20.217, Motor Carrier Safety. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this program.

Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), a Federal agency must obtain approval from the Office of Management and Budget (OMB) for each collection of information it conducts, sponsors, or requires through regulations. This amended interim final rule does not contain any information collection requirements.

The agency analyzed this amended interim final rule for the purpose of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq. ) and determined under our environmental procedures Order 5610.1, issued on March 1, 2004 and effective March 31, 2004, that this action is categorically excluded (CE) under Appendix 2, paragraph 6.d of the Order from further environmental documentation. That CE relates to establishing regulations and actions taken pursuant to these regulations that concern the training, qualifying, licensing, certifying, and managing of personnel. In addition, the agency believes that the action includes no extraordinary circumstances that will have any effect on the quality of the environment. Thus, the action does not require an environmental assessment or an environmental impact statement.

We have also analyzed this rule under sec. 175(c) of the Clean Air Act, as amended (CAA) sec. 176(c), (42 U.S.C. 7506(c)) and implementing regulations promulgated by the Environmental Protection Agency. Approval of this action is exempt from the CAA's General Conformity requirement since it involves policy development and civil enforcement activities, such as, investigations, inspections, examinations, and the training of law enforcement personnel. See 40 CFR 93.153(c)(2). It will not result in any emissions increase nor will it have any potential to result in emissions that are above the general conformity rule's de minimis emission threshold levels. Moreover, it is reasonably foreseeable that the rule change will not increase total CMV mileage, change how CMVs operate, the routing of CMVs, or the CMV fleet-mix of motor carriers. This action merely extends a compliance date for State licensing agencies to meet TSA requirements to coincide with the new TSA deadline.

We have analyzed this action under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. This action is not a significant energy action within the meaning of sec. 4(b) of the Executive Order because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

The Trade Agreement Act of 1979 prohibits Federal agencies from engaging in any standards-related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety and security, are not considered unnecessary obstacles. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. FMCSA has assessed the potential effect of this final rule and has determined that it will not impose any costs on domestic or international entities and thus would have a neutral trade impact.

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires Federal agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million in any one year (adjusted for inflation with base year of 1995). Before promulgating a rule for which a written statement is needed, sec. 205 of the UMRA generally requires FMCSA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objective of the rule. The provisions of sec. 205 do not apply when they are inconsistent with applicable law. Moreover, sec. 205 allows FMCSA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the agency publishes with the rule an explanation why that alternative was not adopted.

This amended interim final rule will not result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually. Thus, FMCSA has not prepared a written assessment under the UMRA.

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

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

We have analyzed this action under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This amended interim final rule changes the compliance dates by which States must meet TSA requirements. This rule will not cause an increase in the number of hazardous materials incidents, nor increase the number of non-hazardous materials commercial motor vehicle crashes. Therefore, the FMCSA certifies that this action is not an economically significant rule and does not concern an environmental risk to health or safety that may disproportionately affect children.

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

Preserving fuel system integrity in a crash is critical to preventing occupant exposure to fire. Federal Motor Vehicle Safety Standard (FMVSS) No. 301, Fuel system integrity, specifies performance requirements for the fuel systems of vehicles with a gross vehicle weight rating (GVWR) of 10,000 lb (4,536 kg) or less. The standard limits the amount of fuel spillage from fuel systems of vehicles during and after frontal, rear, and lateral impact tests.

To increase safety and provide for more realistic testing of fuel systems, NHTSA upgraded both the rear impact and lateral (side) impact test requirements in FMVSS No. 301 (68 Federal Register 67068; December 1, 2003). The December 2003 upgrade established an offset rear impact test procedure that specifies striking the rear of the test vehicle at 50 mph (80 ± 1 km/h) with a 3,015 lb (1,368 kg) deformable barrier at a 70 percent overlap with the test vehicle. The deformable barrier in the rear impact test is similar to that currently used in FMVSS No. 214, Side impact protection, except that the barrier is 50 millimeter (2 inches) lower to simulate pre-crash braking. This replaced the 30 mph (48 km/h), 4,000 lb (1,814 kg) rigid moving barrier crash test previously required under FMVSS No. 301.

The final rule also replaced the lateral crash test with the side impact crash test specified in FMVSS No. 214. The upgraded side impact test requires that the test vehicle be impacted at 33 ± 0.6 mph (53 ± 1 km/h) with a 3,015 pound (1,368 kg) deformable barrier. This replaced the 20 mph (32 km/h) crash test with a 4,000 lb (1,814 kg) rigid moving barrier previously required under FMVSS No. 301.

To provide manufacturers time to address the rear impact test upgrade and to accommodate new vehicle models that were designed and developed based on the old requirements, the December 2003 final rule provided for three years of lead time followed by a phase-in. The upgraded rear impact test will be phased-in over a three year period beginning September 1, 2006, according to the following percentages of production: 40%, 70%, and 100%. As a result of the low failure rate among existing vehicle designs with the new lateral impact test, the December 2003 final rule established a September 1, 2004 effective date for the side impact upgrade, without a phase-in.

NHTSA received petitions for reconsideration of the December 2003 final rule from the Braun Corporation (Braun), an alterer and final stage manufacturer; Lotus Cars Ltd. (Lotus); the National Truck Equipment Association (NTEA); Ferrari S.p.A. (Ferrari); the Alliance of Automobile Manufacturers  1 (Alliance); American Honda Motor Company, Inc. (Honda); General Motors of North America (General Motors); the Center for Auto Safety, a public interest group; and the Victim's Committee for Recall of Defective Vehicles, Inc., a public interest group. The petition from the Victim's Committee for Recall of Defective Vehicles, Inc. was in support of the petition submitted by the Center for Auto Safety.

Additional comments were received from the Automotive Safety Research Institute and Mr. Mark W. Athan, a police officer.

Petitioners' requests broke down into three major areas: compliance schedule for the side impact test, compliance schedule for the rear impact test, and the issue of more severe testing.

The Alliance requested a one-year extension of the compliance date for the side impact upgrade for all vehicles and a phase-in for vehicles greater than 6,000 pound (lb) (2,722 kg) GVWR. The Alliance requested a phase-in to begin September 1, 2005 according to the following percentages of production, 90% in the first year, and 100% in the second year. The petitioner explained that vehicles with a GVWR greater than 6,000 lb (2,722 kg) were not previously subject to the FMVSS No. 214, Side impact protection , test procedures on which the FMVSS No. 301 side impact upgrade is based. Petitioner further explained that additional time would be required to perform the testing necessary to certify vehicles with a GVWR greater than 6,000 lb (2,722 kg) even if no modifications were required.

Agency response: The agency is amending FMVSS No. 301 to provide vehicles with a GVWR greater than 6,000 lb (2,722 kg) an additional year to comply with the upgraded side impact requirement. Vehicles with a GVWR of 6,000 lb (2,722 kg) or less must comply with the upgrade on and after September 1, 2004.

In the December 2003 final rule, the agency stated that less than one percent of the vehicles tested failed FMVSS No. 301's fuel leakage requirements using the FMVSS No. 214 side impact test. The agency expects less than one percent of vehicles to require modification in order to comply with the side impact upgrade, including vehicles with a GVWR greater than 6,000 lb (2,722 kg). However, vehicles with a GVWR greater than 6,000 lb (2,722 kg) have not previously been subject to the FMVSS No. 214 side impact test. Therefore, we are providing these vehicles with an additional year of lead time to comply with the new side impact requirement.

Conversely, vehicles with a GVWR of 6,000 lb (2,722 kg) or less have previously been subject to the FMVSS No. 214 side impact test. As stated in the final rule, the agency does not anticipate difficulty in certifying these vehicles to the upgraded requirements and the petitioner has not provided any data to demonstrate any such difficulty. Therefore, the Alliance's request to extend the effective date for vehicles with a GVWR of 6,000 lb (2,722 kg) or less is denied.

Under the December 2003 final rule, manufacturers will have to comply with the upgraded side impact requirements on and after September 1, 2004. Several multistage manufacturers, second stage manufacturers, and small volume manufacturers requested additional lead time for complying with the upgraded side impact requirements.

Both NTEA and Braun stated that multistage manufacturers and alterers would be unable to begin compliance efforts until a chassis manufacturer has made a production-ready model. Petitioners explained that a multistage manufacturer or alterer cannot ascertain vehicle compliance with the upgraded standard until they receive a chassis manufactured after the September 1, 2004 date. Therefore, they continued, multistage manufacturers and alterers are restricted to design and re-certification analysis on compliant vehicles obtainable only after the standard takes effect. Petitioners argued that they cannot reasonably produce a vehicle for several months after the upgraded side impact requirements take effect. As such, NTEA requested that multistage manufacturers and alterers be excluded from the application of the upgraded requirements. In the alternative, NTEA and Braun, requested an additional year of lead time for multistage manufacturers and alterers to follow the September 1, 2004 effective date. The Alliance requested a similar delay for second stage manufacturers.

Ferrari argued that current vehicle designs have not been subjected to the FMVSS No. 214 side impact procedure for purposes of fuel system integrity and that it would be burdensome to test vehicles that are nearing end of production. The petitioner requested that the agency provide small volume manufacturers with either a phase-in option, two years of additional lead time, or exclusion for carlines that will no longer be produced after September 1, 2005.

Agency response: The agency is granting the petitioners' request to provide multistage manufacturers and alterers with an additional year of lead time beyond that provided other manufacturers for the side impact upgrade.

The agency agrees with Braun and NTEA in that multistage manufacturers and alterers would not be able to ascertain vehicle compliance with the upgraded side impact standard until they receive a chassis manufactured after the respective compliance date. An additional year of lead time will permit multistage manufacturers and alterers to rely on the incomplete certification of a vehicle without delaying production capabilities. Therefore, multistage manufacturers and alterers must certify vehicles with a GVWR of 6,000 lb or less as complying with the upgraded side impact requirement beginning September 1, 2005. Multistage manufacturers and alterers must certify all vehicles as complying with the upgraded side impact requirement beginning September 1, 2006.

The agency is denying the petitioners' request to provide small volume manufacturers with an additional year of lead time. As with other manufacturers, the agency does not anticipate that vehicles previously subject to the side impact procedure under FMVSS No. 214 will have any difficulty in certifying compliance with the new requirement starting September 1, 2004. Further, the petitioners did not demonstrate that any vehicle would be unable to meet the requirements.

The December 2003 final rule established a phase-in for the upgraded rear impact test, beginning on September 1, 2006, according to the following percentages of production: 40%, 70% and 100%. Braun and NTEA requested that second stage manufacturers and alterers not be required to comply with the rear impact upgrade until one year following the 100 percent compliance date. Petitioners presented the same arguments for requiring one year of additional lead time for the rear impact upgrade as with the side impact upgrade.

Lotus and Ferrari both requested that the small volume manufacturers be permitted to comply with the following percentages of production: 0%, 0%, and 100%. Both Lotus and Ferrari argued that because small volume manufacturers have smaller numbers of carlines, they could be required to comply with the upgraded rear impact requirements at a higher percentage of production than required.

Agency response: The agency is granting the petitioners' request to provide multistage manufacturers and alterers an additional year of lead time following the 100 percent compliance date for the rear impact upgrade. The agency is also permitting small volume manufacturers to wait until the end of the phase-in to comply with the rear impact upgrade.

The compliance difficulties present for multistage manufacturers and alterers in the side impact upgrade are also present in the rear impact upgrade. Multistage manufacturers and alterers would not be able to ascertain vehicle compliance with the upgraded rear impact standard until they receive a chassis manufactured after the 100 percent compliance date. Again, an additional year of lead time will permit multistage manufacturers and alterers to rely on the incomplete certification of a vehicle without delaying production capabilities. Therefore, multistage manufacturers and alterers must comply with the upgraded rear impact requirement beginning September 1, 2009.

We have also decided to exclude small volume manufacturers ( i.e., manufacturers of less than 5,000 vehicles per year produced for the U.S. market) from the phase-in because of their small size. We note that, unlike the advanced air bag or tire pressure monitor system rulemakings, in which the technologies used to comply with the standard are relatively new, the technologies for complying with the upgraded rear impact requirement are well established. Accordingly, these manufacturers are unlikely to face the supply-and-demand problems anticipated in the afore-referenced rulemakings. However, based on the small size of these manufacturers, we are providing additional flexibility to comply with the rear impact upgrade.

Honda requested that the agency permit use of carry-forward credits during the phase-in period for vehicles that comply in advance. Honda argued that carry-forward credits would act as an incentive to introduce vehicles compliant with the upgraded rear impact requirement into the market sooner. In the alternative, Honda petitioned for the agency to reduce the required percentage in the first year of the phase-in from 40 percent to 30 percent. With regard to calculating vehicle production for the phase-in percentages, Honda requested that the alternatives of using the three year average annual production, or one year annual production, include the phase-in year. Honda stated that inclusion of the phase-in year would allow for possible drastic changes in vehicle sales within the phase-in year to be factored into the production numbers.

Agency response: The agency is denying Honda's requests for advanced credits under the rear impact phase-in schedule, but is amending the final rule to include the phase-in year in the production calculation.

NHTSA recognizes that, under some circumstances, allowing carry-forward credits during a phase-in can enhance safety by encouraging manufacturers to build and certify vehicles that comply with the new requirements earlier. In fact, we have authorized such credits in the past. See, e.g., S14 of FMVSS No. 208, Occupant Protection, 63 FR 49958, 49961 (Advanced Air Bag Rule; May 12, 2000). However, in that case, it was clear that no existing vehicles complied with the new requirements and that manufacturers would have to make major design changes to bring their vehicles into compliance with the standard. Allowing manufacturers to use carry-forward credits for vehicles certified to the standard prior to the first year of the phase-in to help satisfy the percentage requirements in the later years of the phase-in acted as an incentive to encourage manufacturers to make those design changes earlier than they would otherwise have done. However, that principle does not apply here, since our testing program demonstrates that many existing vehicles can already comply with the upgraded rear impact requirements. Thus, allowing credits for vehicles produced between now and September 1, 2006 could reduce the number of vehicles that would have to be redesigned for the first two years of the phase-in.

Further, the agency is denying Honda's request to reduce the production percentage required to comply with the first stage of the phase-in. The agency has provided a three-year lead time prior to the phase-in, which the agency believes to be sufficient for most vehicles in need of modification. While Honda requested a reduced percentage for the initial phase-in period, it did not provide data demonstrating that its vehicles would need modification or, if modifications were required, that additional time would be needed.

We are amending the annual production calculation for the phase-in to include the phase-in year. This will allow manufacturers to account for an unanticipated and drastic drop in sales of a particular line and is consistent with the calculation method used in the advanced air bag rule.

The Center for Auto Safety and the Automotive Safety Research Institute petitioned the agency to increase the severity of the upgraded test requirements. The Center for Auto Safety requested that the agency adopt a 60 mph (95 km/h) side impact test and the Automotive Safety Research Institute requested a 50 mph (80 km/h) side impact test requirement. The Center for Auto Safety also petitioned for the agency to adopt an 80 mph (128 km/h) rear impact test requirement, stating that in the absence of a fire, a crash at this impact speed would be survivable.

Agency response: The agency is not amending the impact speed of either the side or rear impact requirement established in the December 2003 final rule. The Center for Auto Safety and the Automotive Safety Research Institute did not provide the data or analysis regarding the potential benefits for increasing the speed of the side and rear impact requirements. As we stated in the December 2003 final rule, the impact test procedures established in the final rule effectively reproduce the damage profile seen in real world crashes that most often lead to fires. Further, an amendment to increase the impact side speed to 50 (80 km/h) or 60 (95 km/h) mph and increase the rear impact speed to 80 mph (128 km/h) is beyond the scope of the notice of proposed rulemaking that led to the December 2003 final rule.

General Motors stated that in upgrading the rear impact test, the agency inadvertently amended the requirements of FMVSS No. 305, Electric-powered vehicles: electrolyte spillage and electrical shock protection. FMVSS No. 305 requires vehicles that use electricity as propulsion power to meet requirements for limitation of electrolyte spillage, retention of propulsion batteries during a crash, and electrical isolation of the chassis from the high-voltage system. Section 7.4 of FMVSS No. 305 (Rear moving barrier impact test conditions) references the test conditions in S7.3 of FMVSS No. 301, including the impact speed and barrier. General Motors noted that by amending the rear impact test procedure in FMVSS No. 301, the agency also amended, most likely unintentionally, the rear impact test procedure applicable to electric-powered vehicles.

General Motors is correct in that NHTSA did not intend to amend the rear impact test requirements for electric vehicles. This notice amends S7.4 of FMVSS No. 305 to maintain the current rear impact test requirements for electric-powered vehicles.

Additionally, the agency is amending S6.2 Rear moving barrier impact of FMVSS No. 305 to permit manufacturers to comply with the rear moving barrier impact requirements under the applicable conditions of the upgraded FMVSS No. 301. Prior to the upgrade of the FMVSS No. 301 rear moving barrier impact test, compliance with the FMVSS Nos. 301 and 305 rear moving barrier requirements was based on similar test conditions and procedures. The similarity in test conditions gave manufacturers of gas-electric hybrid vehicles the opportunity to conduct one test instead of two to determine compliance with the two sets of rear impact requirements. Gas-electric hybrid vehicles with a GVWR of 4536 kg or less are subject to the rear moving impact requirements of both FMVSS Nos. 301 and 305, if they use both liquid fuel and more than 48 nominal volts of electricity as propulsion power. As a result of the FMVSS No. 301 upgrade, compliance with the FMVSS Nos. 301 and 305 rear moving barrier requirements is no longer based on similar test conditions and procedures. The differences in the conditions and procedures could eliminate the opportunity to conduct one test instead of two for gas-electric hybrid vehicles.

To reinstate the opportunity to conduct two tests instead of one, we are amending FMVSS No. 305 to permit compliance with the electrolyte spillage, battery retention and electrical isolation rear moving barrier impact requirements of FMVSS No. 305 under the upgraded FMVSS No. 301 rear moving barrier test conditions. As stated in the December 2003 final rule, the upgraded FMVSS No. 301 rear moving barrier test conditions are more stringent than the current conditions. Therefore, this revision will permit manufacturers of gas-electric hybrid vehicles to conduct fewer tests, while maintaining, if not improving, current levels of vehicle safety. A manufacturer's decision to certify under this option must irrevocably be made not later than the time of certification.

The agency is making the amendments in this final rule effective on August 31, 2004. The agency is making them effective in less than 30 days because of the imminence of September 1, 2004, the compliance date for the upgraded side impact test, as established by the December 2003 final rule. Specifying an effective date for today's final rule prior to that compliance date is necessary to establish a new compliance date. This will prevent manufacturers from having to certify vehicles at potentially great expense on September 1, 2004, when those vehicles are provided additional compliance lead time in this document.

NHTSA has considered the impact of this rulemaking action under Executive Order 12866 and the Department of Transportation's regulatory policies and procedures. This rulemaking document was not reviewed by the Office of Management and Budget under E.O. 12866, “Regulatory Planning and Review.” The rulemaking action has been determined to not be significant under the Department's regulatory policies and procedures. The amendments made in this final rule do not significantly impact the costs and benefits of the December 2003 final rule. The agency has concluded that the impacts of today's amendments are so minimal that a regulatory evaluation is not required.

In response to petitions for rulemaking to the December 2003 FMVSS No. 301 upgrade, we are providing additional lead time for specified vehicles and manufacturers. Manufacturers of motor vehicles with a gross vehicle weight rating greater than 6,000 lb (2,722 kg) are provided an additional year of lead time to comply with the upgraded side impact requirements to determine what changes if any need to be made. The agency is also providing multistage manufacturers and alterers an additional year of lead time to comply with both the upgraded side and rear impact requirements. This will permit alterers and multistage manufacturers to rely on an incomplete vehicle certification without delaying production. Additionally, small volume manufacturers are permitted to comply with the rear impact upgrade phase-in with the following percentages of production: 0%, 0%, and 100%. This allows small manufacturers to avoid the expense of testing and possibly modifying a model going out of production during the first two years of the phase-in, and delays their costs to the final year. The agency is also providing flexibility for manufacturers of vehicles that are required to comply with both FMVSS Nos. 301 and 305, which may reduce the amount of vehicle testing performed.

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq. , as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities ( i.e. , small businesses, small organizations, and small governmental jurisdictions). The Small Business Administration's regulations at 13 CFR Part 121 define a small business, in part, as a business entity “which operates primarily within the United States.” (13 CFR 121.105(a)). No regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities.

NHTSA has considered the effects of this final rule under the Regulatory Flexibility Act. I certify that this final rule will not have a significant economic impact on a substantial number of small entities. The December 2003 final rule, which this notice amends, was certified as not having a significant economic impact on a substantial number of small entities. The amendments made by this final rule do not substantially impact the economic effects of the December 2003 final rule, except that this final rule provides multistage manufacturers and alterers, many of which are small entities, additional time to comply with the December 2003 final rule.

Consequently, the agency has concluded that this rulemaking will not have a significant economic impact on a substantial number of small entities.

NHTSA has analyzed these amendments for the purposes of the National Environmental Policy Act and determined that they will not have any significant impact on the quality of the human environment.

The agency has analyzed this rulemaking in accordance with the principles and criteria contained in Executive Order 13132 and has determined that it does not have sufficient federalism implications to warrant consultation with State and local officials or the preparation of a federalism summary impact statement. The final rule has no substantial effects on the States, or on the current Federal-State relationship, or on the current distribution of power and responsibilities among the various local officials.

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires Federal agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million in any one year (adjusted for inflation with base year of 1995). Before promulgating a rule for which a written statement is needed, section 205 of the UMRA generally requires NHTSA 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 NHTSA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the agency publishes with the final rule an explanation why that alternative was not adopted.

This final rule will not result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually. Consequently, no Unfunded Mandates assessment has been prepared.

This final rule does not have any retroactive effect. Under section 49 U.S.C. 30103, whenever a Federal motor vehicle safety standard is in effect, a state may not adopt or maintain a safety standard applicable to the same aspect of performance which is not identical to the Federal standard, except to the extent that the state requirement imposes a higher level of performance and applies only to vehicles procured for the State's use. 49 U.S.C. 30161 sets forth a procedure for judicial review of final rules establishing, amending or revoking Federal motor vehicle safety standards. That section does not require submission of a petition for reconsideration or other administrative proceedings before parties may file suit in court.

Under the Paperwork Reduction Act of 1995, a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. This rule does not establish any new information collection requirements.

The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.

Executive Order 13045 applies to any rule that: (1) is determined to be “economically significant” as defined under E.O. 12866, and (2) concerns an environmental, health or safety risk that NHTSA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, we must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by us.

This rulemaking does not involve decisions about health risks that disproportionately affect children.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272) directs NHTSA to use voluntary consensus standards in its regulatory activities unless doing so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g. , materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies, such as the Society of Automotive Engineers (SAE). The NTTAA directs NHTSA to provide Congress, through OMB, explanations when the agency decides not to use available and applicable voluntary consensus standards.

This final rule does not address matters such as performance requirements or test conditions, procedures or devices. It addresses compliance schedules only. Therefore, the voluntary consensus standards are not relevant to this final rule. In the December 2003 final rule, the agency noted that there were not any voluntary consensus standards available at that time. It stated further that NHTSA would consider any such standards when they become available.

Anyone is able to search the electronic form of all submissions received into any of our dockets by the name of the individual submitting the comment or petition (or signing the comment or petition, if submitted on behalf of an association, business, labor union, etc. ). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit http://dms.dot.gov.

In response to a final rule on tire safety information published on November 18, 2002 (67 FR 69600), we received a request for an interpretation asking whether laser etching of the date code portion of the Tire Identification Number (TIN) is permitted. 1 Specifically, S5.5 of FMVSS No. 139 requires that each new pneumatic tire for light vehicles must be “marked” with the TIN in accordance with 49 CFR 574.5. In responding to this request, the agency issued a letter of interpretation indicating that 49 CFR 574.5 permitted laser etching of the date code portion of the TIN, as “long as it occurred in-line, i.e. , as part of the manufacturing process of the tire.” We also indicated in that letter that in responding to petitions for reconsideration of the November 2002 tire safety information final rule, we would amend 49 CFR 574.5 to codify the interpretation. 2

We inadvertently omitted the codifying amendment from the response to the petitions for reconsideration published on June 3, 2004. In order to avoid ambiguities associated with defining “in-line” or “part of the manufacturing process,” this correcting amendment includes a time limit within which the date code can be laser etched into the tire.

In addition to omitting the codifying amendment, we inadvertently omitted making certain changes to the regulatory text discussed in the preamble on page 31315.

Correcting the omission of the codifying amendment will not impose or relax any additional substantive requirements or burdens on manufacturers. Therefore, NHTSA finds for good cause that any notice and opportunity for comment on these correcting amendments are not necessary.

This Federal Register document is also accessible via the internet at the website of the Office of Federal Register : http://www.access.gpo.gov/su-docs/aces/aces140.html

When the Fishery Management Plan for the Bottomfish and Seamount Groundfish Fisheries of the Western Pacific Region (FMP) was implemented (51 FR 27413, July 31, 1986), it was determined that a 6-year moratorium on fishing at Hancock Seamount was needed to aid the recovery of the pelagic armorhead ( Pseudopentaceros wheeleri , formerly, Pentaceros richardsoni ). Foreign vessels over exploited the seamount groundfish resource before the Fishery Conservation and Management Act, now called the Magnuson-Stevens Fishery Conservation and Management Act, was enacted in 1976. There has never been a domestic fishery targeting these stocks. Periodic reviews since the original moratorium was implemented consistently determined that the stock has not recovered. Therefore, the moratorium was extended twice already for 6-year increments in 1992 and 1998 (57 FR 36907, August 17, 1992; and 63 FR 35162, June 29, 1998; respectively). On June 25, 2004, a proposed rule (69 FR 35570) was published announcing another extension until August 31, 2010.

The last U.S. research cruise to the Hancock Seamount was conducted in 1993. However, the Japanese trawl fleet continues to harvest pelagic armorhead on neighboring seamounts outside of the U.S. exclusive economic zone (EEZ) surrounding the Northwestern Hawaiian Islands. According to information provided by the Japan National Research Institute of Far Seas Fisheries, the most current (2002) spawning potential ratio (SPR) for the armorhead stock is 0.1 percent at all seamounts outside of the EEZ. These seamounts comprise 95 percent of the trawl grounds for the Japanese trawl fishery. Based on the low SPR value, it is inferred that the status of the Hancock Seamount is similarly depressed and well under 20 percent SPR which is the standard for determining when pelagic armorhead overfished. At its October 2003 meeting the Council heard reports from its Bottomfish Plan Team and Scientific and Statistical Committee on the status of the seamount groundfish resources. On the basis of these reports, and in accordance with the framework at 50 CFR 660.67, the Council recommended a permanent closure of the Hancock Seamount to the harvest of groundfish resources. However, it is unlikely that an amendment to the FMP closing Hancock Seamount to the harvesting of groundfish resources could be completed before the current moratorium expires. Therefore, at its March 2004 meeting the Council recommended extending the current moratorium another 6 years (i.e., August 31, 2010). During the proposed moratorium, an amendment to the FMP that would permanently close Hancock Seamount to groundfish harvest could be developed.

NMFS received 2 comments on the proposed rule from 2 commenters.

Comment 1: The moratorium extension should be expanded to 20 years and include all fish - not just groundfish - and increase enforcement at Hancock Seamount.

Response: NMFS is limited to imposing a 6-year extension specifically to seamount groundfish resources. The moratorium extension implemented by this final rule is intended to be an interim measure until a more permanent management regime is developed by the Council for the Hancock Seamount groundfish fishery. In regard to closing fishing to other species besides groundfish at Hancock Seamount, NMFS' current data indicate that stocks of other potential commercially harvested fish (i.e., pelagics) can continue to be harvested in a sustainable manner. Closure of the area to the harvest of these resources is unwarranted. Finally, NMFS Enforcement is monitoring the area as funds permit. However, due to its remote location and poor potential returns on investments, U.S. fishermen are unlikely to target pelagic armorhead resources in the remote NWHI. Additionally, the U.S. Coast Guard already has plans to increase patrols in the U.S. EEZ surrounding Hawaii, because of heightened national security concerns.

Comment 2: If the Hancock Seamount is only one of the seamounts potentially harvested [for] armorhead then why not make it a sanctuary permanently off limits to bottomfishing? Keep it open to tuna/swordfish longliners and albacore trollers.

Response: As stated above, this final rule is intended to be an interim measure until a long-term management program is developed by the Council. In regard to the harvest of pelagic management unit species targeted by longliners and trollers, see the response to Comment 1.

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

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that the proposed rule for this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule. No comments were received regarding the economic impacts of this action. As a result a regulatory flexibility analysis was not prepared.