The FAA proposed to amend 14 CFR Part 39 with a proposed AD. The proposed AD applies to PWC PW206A and PW206E turboshaft engines. We published the proposed AD in the Federal Register on February 20, 2004 (69 FR 7878). That action proposed to require the same actions as AD 2003-16-10, Amendment 39-13263, but would change the description of the extent of engine disassembly that triggers the required part replacements. Those changes are needed to clarify when the parts must be replaced.

You may examine the AD Docket (including any comments and service information), by appointment, between 8 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays. See ADDRESSES for the location.

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

One commenter states that the referenced Alert Service Bulletin and Service Bulletins only address those engines with between 25 hours Total-Time-Since-New (TTSN) or Total-Time-Since-Repair (TTSR) and 600 hours TTSN or TTSR. Therefore, this AD should address the same group of engines.

We do not agree. The amount of data available is insufficient to limit the effectivity to only those engines with between 25 hours TTSN or TTSR and 600 hours TTSN or TTSR. We have not changed the AD based on this comment.

One commenter states that earlier versions of the Service Bulletins should be acceptable for meeting the requirements of this AD.

We agree. There are no substantial changes between the earliest versions of the Service Bulletins and those versions referenced in the proposed AD. We have added those service bulletin references to paragraph (k) of the AD, which is the Previous Credit paragraph.

We have carefully reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting the AD with the change described previously. We have determined that this change will neither increase the economic burden on any operator nor increase the scope of the AD.

There are about 130 PWC PW206A and PW206E turboshaft engines of the affected design in the worldwide fleet. We estimate that 15 engines installed on airplanes of U.S. registry are affected by this AD. We also estimate that it will take about 0.5 work hours per engine to perform the required actions, and that the average labor rate is $65 per work hour. Required parts will cost about $9,077 per engine. Based on these figures, we estimate the total cost of this AD to U.S. operators to be $136,656. The manufacturer has stated that it may provide replacement parts at no cost to operators.

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

For the reasons discussed above, I certify that this AD:

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

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

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

We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES . Include “AD Docket No. 2003-NE-25-AD” in your request.

What events have caused this AD? The FAA has received numerous reports of loose bolts not securing the pedestal cross shaft on Raytheon Models B300, C90A, and 1900 series airplanes. Investigation revealed that the bolt securing the pedestal cross shaft can loosen in time and fall out. When the bolt backs out, the cross shaft will flex with throttle or propeller control application. This flexing of the cross shaft limits the effectiveness of the control levers and the operation of the landing gear warning, prop reverse not ready, autofeather, and ground idle micro switches (on models with switches at this location).

The 65, 90, 99, 100, 200, 300, and 1900 Series airplanes all have a similar type design in the area affected by this AD.

What is the potential impact if FAA took no action? This failure could limit the effectiveness of the engine control levers and result in an aborted takeoff due to failure to make takeoff power.

Has FAA taken any action to this point? We issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to certain Raytheon 65, 90, 99, 100, 200, 300, and 1900 series airplanes. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on April 26, 2004 (69 FR 22392). The NPRM proposed to require you to repetitively inspect the engine controls/cross shaft/pedestal for proper installation and torque, re-torque the cross shaft attach bolt, modify the pedestal, and replace the engine controls cross shaft hardware.

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

What is the commenter's concern? The commenter is responsible for a large fleet (Models 99, 200, and 1900) of 62 airplanes that are affected by this AD. The fleet has accumulated more than 450,000 flight hours. The commenter states that the company has never experienced the problem in the fleet, and that regular inspection in the subject area and check of the subject bolts for tightness eliminates the problem. Therefore, the AD is not necessary.

What is FAA's response to the concern? The FAA disagrees with the commenter's statement that, since the company has not experienced the problem in the fleet, that an AD is not necessary. The AD action was prompted by several reports of loose bolts not securing the pedestal cross shaft on Raytheon Models B300, C90A, and 1900 series airplanes. After issuance of a manufacturer's safety notice, FAA received more reports of loose bolts. Our decision to issue an AD action is based on reports from the field, the likelihood that the condition is likely to exist or develop on other products of this same type design, and the potential impact to an aircraft with the subject condition if no action was taken.

Therefore, to ensure that all affected airplanes do not have the unsafe condition, we are not changing the final rule AD action based on this comment.

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

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

How many airplanes does this AD impact? We estimate that this AD affects 5,025 airplanes in the U.S. registry.

What is the cost impact of this AD on owners/operators of the affected airplanes? We estimate the following costs to do the inspection and re-torque of the cross attach bolt:

We estimate the following costs to do the modification of the pedestal and replacement of the engine controls cross shaft hardware:

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

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

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

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

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

We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES . Include “AD Docket No. 2004-CE-04-AD” in your request.

: The Departments of Commerce and the Interior (the Departments) issue this rule to amend their regulations governing watch duty-exemption allocations and the watch and jewelry duty-refund benefits for producers in the United States insular possessions (the U.S. Virgin Islands, Guam, American Samoa and the Commonwealth of the Northern Mariana Islands). The background information and purpose of this rule is found in the preamble to the proposed rule (69 FR 39375, June 30, 2004) and is not repeated here.

The Departments amend 15 CFR 303.14(b)(3) by raising the maximum total value of watch components per watch that is eligible for duty-free entry into the U.S. from $500 to $800. The insular watch program producers requested an increase because of a substantial increase in the price of gold and the weakness of the dollar against the euro over the last several years. Also, there has not been an adjustment in the maximum value since 1998. Raising the value level of watch components that may be used in the assembly of duty-free watches will help producers maintain the degree of diversity in the kinds of watches they assemble, thereby affording them an opportunity to maintain or hopefully increase shipments and increase territorial employment.

ITA received four comments in response to the proposed rule and request for comments. The commenters expressed strong support for the proposed rule and thought that the long-term effect would be positive for the insular watch industry and its employees. Accordingly, the Departments adopt the provisions in the proposed rule without change.

The Departments waive the 30-day delay in effectiveness for this rule because this rule relieves a restriction. (See 5 U.S.C. 553(d)(1)). By raising the maximum value of watch components per watch that are eligible for duty-free entry, this rule will allow producers to import higher value watches than were allowed prior to the adoption of this rule. Therefore, this rule is effective upon publication.

In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. , the Chief Counsel for Regulation at the Department of Commerce has certified to the Chief Counsel for Advocacy, Small Business Administration, that the proposed rule would not have a significant economic impact on a substantial number of small entities. The factual basis for this certification was published in the proposed rule and is not repeated here. No comments were received regarding the economic impact of this rule on small entities. As a result, a final regulatory flexibility analysis is not required and has not been prepared.

This proposed rulemaking does not contain revised collection of information requirements subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995. Collection activities are currently approved by the Office of Management and Budget under control numbers 0625-0040 and 0625-0134.

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information unless it displays a currently valid OMB Control Number.

It has been determined that the rulemaking is not significant for purposes of Executive Order 12866.

Under Public Law Number 94-241 enacted on March 24, 1976, and codified at 48 U.S.C. 1801, section 502(a) of the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America (the Covenant) provides that certain laws of the United States will apply to the CNMI. The laws include, under section 502(a)(1) of the Covenant, section 228 of title II of the Social Security Act (the Act), and title XVI of the Act. The laws also include “those laws” not specifically described in section 502(a)(1) “which are applicable to Guam and which are of general application to the several States.” Under section 502(a)(2) of the Covenant, such laws apply to the CNMI “as they are applicable to the several States.” Similarly, section 606 of the Covenant applies the tax and benefit provisions of the United States Social Security System to the CNMI, as they apply to Guam. Guam is considered part of the United States for purposes of title II of the Social Security Act. See 42 U.S.C. 410(i).

While we previously revised our regulations to reflect that the CNMI is considered to be a part of the United States for purposes of the transitional insured provision for special age-72 benefits in section 228 of the Act ( see 20 CFR 404.381) and for purposes of the SSI program ( see 20 CFR 416.215), we have never previously revised our regulations dealing with entitlement to retirement, survivors, and disability insurance benefits under title II to reflect the treatment of the CNMI under the Covenant. We are, therefore, revising the following sections of our regulations to reflect the extension of the title II program to the CNMI.

We are revising paragraphs (c)(5) and (c)(6) of section 404.2 of our regulations to include the CNMI in our definition of both “State” and the “United States,” for purposes of administering title II of the Social Security Act. This reflects the full application of title II of the Social Security Act to the CNMI beginning January 1, 1987. See Presidential Proclamation No. 5564 (51 FR 40399 (Nov. 3, 1986)); see also Presidential Proclamation No. 4534 (42 FR 56593 (Oct. 27, 1977)).

Section 404.460(a)(1) of our regulations describes the scope of the alien nonpayment provision of the Act, which limits the payment of Social Security benefits to aliens outside the United States. We are revising the definition of “outside the United States” in this section to reflect that we consider the CNMI to be a part of the United States for purposes of this section. This change is necessary to reflect that we will not apply the alien nonpayment provision to aliens residing in the CNMI, just as it is not applied to aliens residing in Guam.

Section 404.1004 of our regulations describes what work is covered as employment and defines “State” and “United States” under title II of the Social Security Act (the Act). Since, under the Covenant, we treat work in the CNMI the same as we treat work in Guam, we are revising paragraphs (b)(4), (b)(8) and (b)(9) of this section to include the CNMI in the definition of “State” and “United States” for title II purposes of the Act.

Section 404.1020 of our regulations describes the coverage of work for States and their political subdivisions and instrumentalities. Since, under the Covenant, we treat work in the CNMI the same as we treat work in Guam, we are revising § 404.1020(a)(3) of our regulations to include a reference to the CNMI directly after the reference to Guam.

Section 404.1022 of our regulations describes the coverage of employment for workers in American Samoa or Guam. Since, under the Covenant, we treat work in the CNMI the same as we treat work in Guam, we are revising paragraphs (a) and (c) of this section to reflect that work performed for a private employer in the CNMI is covered employment and that work performed for the government of the CNMI is generally excluded from covered employment.

Section 404.1093 of our regulations provides that, in using the exclusions from gross income provided under section 931 of the Internal Revenue Code (the Code), 26 U.S.C. 931, (relating to income from sources within possessions of the United States) and section 932 of the Code, 26 U.S.C. 932, (regarding coordination of U.S. and Virgin Islands taxes) for purposes of figuring your net earnings from self-employment, the term “possession of the United States,” as used in our regulations at 20 CFR 404.1081(a)(4)(iv), does not include the Virgin Islands, Guam or American Samoa. In describing areas affected by its exclusion from gross income, section 931(c) of the Code, 26 U.S.C. 931(c), defines the term “specified possession” as Guam, American Samoa and the CNMI. Therefore, we are revising § 404.1093 to include the CNMI.

Section 404.1096(d) of our regulations provides that a nonresident alien has self-employment income only if coverage is provided under a totalization agreement, but explains that residents of the Commonwealth of Puerto Rico, the Virgin Islands, Guam or American Samoa, are not considered to be nonresident aliens. Therefore, we are revising this section to reflect that residents of the CNMI are not considered to be nonresident aliens.

Section 404.1200 describes coverage for State and local government employees under section 218 of the Act. Mandatory Social Security and Medicare coverage is extended to certain services performed after July 1, 1991, by individuals who are employees of a State (other than the District of Columbia, Guam, or American Samoa). Since the CNMI is treated like Guam under the terms of the Covenant, we are revising paragraph (b) of this section to add the Commonwealth of the Northern Mariana Islands after Guam.

Under title II of the Act, section 210(h) defines the term “State” to include “the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam and American Samoa.” Section 218(b)(1) of the Act refines the preceding definition solely for purposes of section 218, which concerns voluntary agreements for coverage of State and local employees, by eliminating the District of Columbia, Guam, and American Samoa. The definition of the term “State” in § 404.1202(b) is based on the definition in section 218 of the Act. Since the CNMI is treated like Guam under the terms of the Covenant, we are revising § 404.1202(b) to reflect that the CNMI is not considered a State under section 218. Under the requirements of the Covenant, it will be treated as a State for various other purposes under title II, much like the entities listed in section 210(h) of the Act.

Section 1402(e) of the Code, 26 U.S.C. 1402(e), allows a duly ordained, commissioned, or licensed minister, a member of a religious order, or a Christian Science practitioner, to file, under the terms of that section, for an exemption from payment of SECA (Self-Employment Contributions Act) taxes. Section 1402(e) also provides that an exemption received pursuant to section 1402(e) is irrevocable. However, section 403 of the Ticket to Work and Work Incentives Improvement Act of 1999 (Public Law 106-170) amended the Code to permit individuals who previously opted for the exemption under section 1402(e)(1), a window of time in which to revoke the exemption. Once the exemption is revoked, the individual may not file any further applications for exemption under section 1402(e)(1). This provision is effective for services performed in taxable years beginning January 1, 2000. Depending on the date of the individual's election, the provisions of this law apply to services performed in either the individual's first or second taxable year beginning after December 31, 1999, and for all succeeding taxable years. The application for revocation of the exemption from coverage must be filed with the Internal Revenue Service (usually as part of the tax return) no later than the due date of the Federal Income Tax Return (including extensions) for the applicant's second taxable year beginning after December 31, 1999.

Congress has permitted revocations of the exemption twice in the past. The Social Security Amendments of 1977 (section 316 of Public Law 95-216) and the Tax Reform Act of 1986 (section 1704 of Public Law 99-514) each contained a provision for revocation within certain time periods. Section 404.1071(a) (Ministers and Members of a Religious Order) reflects the revocation period allowed in 1986. We are revising § 404.1071(a) to reflect the revocation period allowed in 1977 and the most recent period of revocation offered by section 403 of the Ticket to Work and Work Incentives Improvement Act of 1999.

On April 7, 2004, we published proposed rules in the Federal Register at 69 FR 18310 and provided a 60-day period for interested parties to comment. We received no comments. We are, therefore, publishing these rules unchanged, except for minor technical corrections in accordance with the descriptions in the preamble to these rules.

We have consulted with the Office of Management and Budget (OMB) and determined that these final rules do not meet the criteria for a significant regulatory action under Executive Order 12866, as amended by Executive Order 13258. Thus, they were not subject to OMB review.

We certify that these final rules will not have a significant economic impact on a substantial number of small entities, as they affect only individuals. Therefore, a regulatory flexibility analysis as provided in the Regulatory Flexibility Act, as amended, is not required.

These final rules impose no new reporting or record keeping requirements subject to clearance by OMB.

The authority to issue this rule is vested in the Secretary of the Interior by 5 U.S.C. 301 and 25 U.S.C. 2 and 9; and 25 U.S.C. 13, which authorizes appropriations for “Indian judges.” See Tillet v. Hodel , 730 F. Supp., 381 (W.D. Okla. 1990), aff'd 931 F.2d 636 (10th Cir. 1991), United States v. Clapox , 35 F. 575 (D. Ore. 1888). This rule is published in the exercise of the rulemaking authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs in the Departmental Manual at 209 DM 8.1.

On January 29, 1993, the United States of America (“Grantor”), by the Secretary of the Interior acting pursuant to 25 U.S.C. 2202 and 465 and the regulation at 25 CFR 151.3(a)(2) and (3), for the purpose of placing the real property described below (the “property”) in trust for the equal benefit of the Indian Pueblos of New Mexico (the “Pueblos”) as tenants in common, and in consideration of the reconveyance of the property by the Pueblos to the Grantor, and other valuable consideration, conveyed, transferred and quitclaim to itself in trust jointly for the equal benefit of the following Pueblos:

On May 24, 1994, 1.9592 acres was transferred to the 19 Pueblos and includes the tract of land being the original Old Indian School boundary, that portion of the Indian Health Service situation within the east half (E 1/2 ), Section 7, T.10 N., R.3 E., New Mexico Principal Meridian, Bernalillo County, New Mexico, subject to all existing reservations and recorded at the Land Titles and Records Office, Albuquerque, New Mexico, as Document No. 050-001-97.

Trust status of the Albuquerque Indian School property has been in litigation since 1993. The December 2002 Federal district court decision in Neighbors for Rational Development v. Gale Norton, Secretary of the Interior, CIV. 99-0059 (D.N.M.), upheld the validity of the trust transfer to the Pueblos. Pursuant to the Master Plan for Development and Environmental review based thereon, the Albuquerque Indian School property will be used primarily for office buildings and economic development activities for the 19 Pueblos. The Joint Powers Agreement implemented between the city of Albuquerque and the 19 Pueblos provides generally for city services on the property and clarifies jurisdiction for non-Indians. The jurisdiction of this court shall provide for protection of lives, persons, and property of people working on the property, economic development projects and visitors to the Albuquerque Indian School location until the local Pueblos establish a tribal court of their own.

Both the Albuquerque Indian School and the Santa Fe Indian School properties are held in trust by the Federal Government for the benefit of the 19 Pueblos and a consensus is required to establish a tribal court that will represent all the Pueblos. The 19 Pueblos have not been able to reach a consensus within this initial time frame even though meetings were held with the Pueblos in an attempt to identify a sponsoring Pueblo to assume the lead in establishing a tribal court for the Albuquerque Indian School property. It does not appear likely that in the immediate future the 19 Pueblos will reach this consensus; therefore, it is necessary for the amendment to part 11 that places the Albuquerque Indian School property on the list of CFR Courts, as an addition to the Santa Fe Indian School property, to become a permanent listing. The jurisdiction of this CFR Court will remain the same as that published in the Federal Register on July 2, 2002, at 67 FR 44353, for the Santa Fe Indian School property, including the Indian Health Hospital, and now with the addition of the Albuquerque Indian School property. The Pueblos, however, will work in conjunction with the Southwest Regional Office to establish a tribal court to exercise jurisdiction at the Santa Fe Indian School property and the Albuquerque Indian School property at which time the Pueblos may request the Secretary to remove the Santa Fe Indian School and Albuquerque Indian School as a CFR Court.

Judges of the Court of Indian Offenses shall be authorized to exercise all authority provided under 25 CFR part 11, including: Subpart D—Criminal Offenses; Subpart H—Appellate Proceedings; Subpart J—Juvenile Offender Procedure; issuance of arrest and search warrants pursuant to 25 CFR 11.302 and 11.305 and section 4(2)(A) of the Indian Law Enforcement Reform Act, Public Law 101-379, 104 Stat. 473 (August 18, 1990). Officials of the Bureau of Indian Affairs have already set up the permanent Court of Indian Offenses pursuant to 25 CFR 11.100(a) for the Southwest Region to address a similar law enforcement need at the Santa Fe Indian School property. This final rule will not authorize judges to exercise the following authority under 25 CFR part 11: Subpart E—Civil Actions; Subpart F—Domestic Relations; Subpart G—Probate Proceedings; Subpart I—Children's Court; and Subpart K—Minor-in-Need-of-Care Procedure.

The establishment of this court is based upon the need for a code to be established for law enforcement staff operating on the Albuquerque Indian School property.

In accordance with the requirement of the Administrative Procedure Act (5 U.S.C. 553(B)), we have determined that publishing a proposed rule would be impractical because of the potential harm that could result from the lack of a court with jurisdiction over the Albuquerque Indian School property. We are therefore publishing this change as a final rule with request for comments.

The Bureau of Indian Affairs has determined it appropriate to make the rule effective immediately by waiving the requirement of publication 30 days in advance of the effective date found at 5 U.S.C. 553(d). This is because of the critical need to expedite establishment of this court to fill the void in law enforcement at the Albuquerque Indian School property, and the imminent increase in visitors to the grounds in question. It is in the public interest and the interest of the Pueblos not to delay implementation of this amendment. Accordingly, this final rule is effective immediately.

We invite comments on any aspect of this rule and we will revise the rule if comments warrant. Send comments on this rule to the address in the ADDRESSES section.

In accordance with the criteria in Executive Order 12866, this rule is not a significant regulatory action. OMB makes the final determination under Executive Order 12866.

(a) This rule will not have an annual economic effect of $100 million or adversely affect an economic sector, productivity, jobs, the environment, or other units of government. A cost-benefit and economic analysis is not required. The establishment of this property to an existing Court of Indian Offenses is estimated to cost less than $200,000 annually to operate. The cost associated with the operation of this Court will be born by the Bureau of Indian Affairs and the Pueblos.

(b) This rule will not create inconsistencies with other agencies' actions. The Department of the Interior through the Bureau of Indian Affairs has the sole responsibility and authority to establish Courts of Indian Offenses on Indian reservations.

(c) This rule will not materially effect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. The establishment of this Court of Indian Offenses will not affect any program rights of the 19 Pueblos. Its primary function will be to administer justice for misdemeanor offenses within the Albuquerque Indian School property. The court's jurisdiction will be limited to criminal offense provided in 25 CFR part 11.

(d) This rule will not raise novel legal or policy issues. The Solicitor analyzed and upheld the Department of the Interior's authority to establish Courts of Indian Offenses in a memorandum dated February 28, 1935. The Solicitor found that authority to rest principally in the statutes placing supervision of the Indians in the Secretary of the Interior 25 U.S.C. 2 and 9, and 25 U.S.C. 13, which authorizes appropriations for “Indian judges.” The United States Supreme Court recognized the authority of the Secretary to promulgate regulations with respect to Courts of Indian Offenses in United States v. Clapox, 35 F. 575 (D. Ore. 1888).

The Department of the Interior, Bureau of Indian Affairs, certifies that this rule will not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). An initial Regulatory Flexibility Analysis is not required.

Accordingly, a Small Entity Compliance Guide is not required. The amendment to 25 CFR 11.100(a) will establish the addition of the Albuquerque Indian School at Albuquerque, New Mexico, to the existing Court of Indian Offenses with limited criminal jurisdiction over Indians within a limited geographical area at Albuquerque, New Mexico.

Accordingly, there will be no impact on any small entities in New Mexico.

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

(a) Does not have an annual effect on the economy of $100 million or more. The establishment of this court of Indian Offenses is estimated to cost less than $200,000 annually to operate. The cost associated with the operation of this Court will be born by the Bureau of Indian Affairs.

(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. This Court will administer misdemeanor justice for Indians located within the boundaries of the Albuquerque Indian School property, Albuquerque, New Mexico, and will not have any cost or price impact on any other entities in the geographical region.

(c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises. This Court will administer misdemeanor justice for Indians located within the boundaries of the Albuquerque Indian School, Albuquerque, New Mexico, and will not have an adverse impact on competition, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ):

(a) This rule will not “significantly or uniquely” affect small governments. A Small Government Agency Plan is not required. The establishment of this Court of Indian Offenses will not have jurisdiction to affect any rights of the small governments. Its primary function will be to administer justice for misdemeanor offenses within the Albuquerque Indian School grounds. Its jurisdiction will be limited to criminal offenses provided in 25 CFR part 11.

(b) This rule will not produce a Federal mandate of $100 million or greater in any year; i.e. , it is not a “significant regulatory action” under the Unfunded Mandates Reform Act.

In accordance with Executive Order 12630, the rule does not have significant takings implications. A takings implication assessment is not required. The amendment to 25 CFR 11.100(a) will establish an addition of the Albuquerque Indian School property, Albuquerque, New Mexico, with limited criminal jurisdiction over Indians within a limited geographical area to the existing Santa Fe, New Mexico Court of Indian Offenses. Accordingly, there will be no jurisdictional basis to adversely affect any property interest because the court's jurisdiction is solely personal jurisdiction over Indians.

In accordance with Executive Order 13132, the rule does not have significant federalism effects. A federalism assessment is not required. The Solicitor found that authority to rest principally in the statutes placing supervision of the Indians in the Secretary of the Interior, 25 U.S.C. 2 and 9; and 25 U.S.C. 13, which authorizes appropriations for “Indian judges.” The United States Supreme Court recognized the authority of the Secretary to promulgate regulations with respect to Courts of Indian Offenses in United States v. Clapox, 35 F. 575 (D. Ore. 1888).

In accordance with Executive Order 12988, the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and meets the requirements of section 3(a) and 3(b)(2) of the Order. The Solicitor analyzed and upheld the Department of the Interior's authority to establish Courts of Indian Offenses in a memorandum dated February 28, 1935. The Solicitor found that authority to rest principally in the statutes placing supervision of the Indians in the Secretary of the Interior, 25 U.S.C. 2 and 9; and 25 U.S.C. 13, which authorizes appropriations for “Indian judges.” The United States Supreme Court recognized the authority of the Secretary to promulgate regulations with respect to Courts of Indian Offenses in United States v. Clapox, 35 F. 575 (D. Ore. 1888). Part 11 also requires the establishment of an appeals court; hence the judicial system defined in Executive Order 12988 will not normally be involved in this judicial process.

This regulation does not require an information collection under the Paperwork Reduction Act. The information collection is not covered by an existing OMB approval. An OMB form 83-I has not been prepared and has not been approved by the Office of Policy Analysis. No information is being collected as a result of this Court existence on, or its limited criminal misdemeanor jurisdiction over Indians within the exterior boundaries of the Albuquerque Indian School property, Albuquerque, New Mexico.

We have analyzed this rule in accordance with the criteria of the National Environmental Policy Act and 516 DM. This rule does not constitute a major Federal action significantly affecting the quality of the human environment. An environmental impact statement/assessment is not required. The establishment of this Court of Indian Offenses conveys personal jurisdiction over the criminal misdemeanor actions of Indians with the additional inclusion of the exterior boundaries of the Albuquerque Indian School and does not have any impact on the environment.

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and 512 DM 2, we have evaluated potential effects on federally recognized Indian tribes and determined the federally recognized Indian tribes are not affected by this rule, except for the 19 Pueblos in New Mexico. The Court of Indian Offenses will remain in existence until such time as they establish a tribal court to provide for a law and order code and a judicial system to deal with law and order on the additional trust land at the Albuquerque Indian School in accordance with 25 CFR 11.100(c). The establishment of this court is consistent with the Department's trust responsibility and with the unique government-to-government relationship that exists between the Federal Government and Indian tribes.

The final and temporary regulations that are the subject of this correction are under section 4081 of the Internal Revenue Code.

As published, the final regulations (TD 9145), contain an error that may prove to be misleading and is in need of clarification.

The Individual Case Management Program (ICMP). Under the provisions of section 704(3) of the NDAA-93 [Pub. L. 102-484], 10 U.S.C. 1079(a)(17) was enacted which allowed the DoD to establish the ICMP, also known as the Individual Case Management Program for Persons with Extraordinary Conditions (ICMP-PEC). This allowed a reasonable deviation from the restrictive statutory coverage of health services for patients who had exceptionally serious, long-range, costly and incapacitating conditions. The ICMP was officially implemented in March 1999 as a waiver program that provided coverage for care and services that were normally restricted from coverage under the Basic Program. Specifically, when a beneficiary was determined to meet the TRICARE definition of custodial care, coverage under the Basic Program was limited to one hour of skilled nursing care per day, twelve physician visits per year related to the custodial condition, durable medical equipment and prescription medications. The Department recognized that the exclusion of coverage when a family member is deemed to be a custodial care patient is both a financial and emotional burden. Consequently, the Department used the ICMP/ICMP-PEC authority to cover medically necessary care and to enable TRICARE case managers to maximize available resources for these beneficiaries.

Repeal of the ICMP. Section 701(g) of the NDAA-02 repealed 10 U.S.C. 1079(a)(17), the statutory authority for the ICMP. However, section 701(d) allows the Department to continue to provide payment for home health care or custodial care services not otherwise authorized under the Basic Program as if the ICMP were still in effect. Payment may occur when a determination is made that discontinuation of payment would result in the provision of services inadequate to meet the needs of the eligible beneficiary and would be unjust to the beneficiary. Eligible beneficiaries are defined in section 701(d)(3) as covered beneficiaries who were regarded as custodial care patients under the ICMP/ICMP-PEC and received medically necessary skilled services for which the Secretary provided payment before December 28, 2001. Beneficiaries receiving services under the ICMP and whose level of services, authorized as of December 28, 2001, can be appropriately provided through other TRICARE programs shall be transitioned into such programs upon identification by the Director, TRICARE Management Activity or designee.

Custodial Care. Section 701(c) of the NDAA-02 provides a statutory definition of custodial care that is more consistent with other federal programs. The change also results in the narrowing of the statutory exclusions of custodial care that has the effect of eliminating current program restrictions on paying for certain medically necessary care.

Program for Persons with Disabilities (PFPWD). This program is now renamed the Extended Care Health Option (ECHO). The PFPWD was established by Congress in 1966 and was originally called the Program for the Handicapped (PFTH). The name was changed to PFPWD in 1997 to reflect the national shift away from the label of handicapped and in an effort to be more sensitive to our beneficiaries with special needs. The program was established to provide financial assistance for active duty family members who are moderately or severely mentally retarded or have a serious physical disability. The purpose of the program was to help defray the cost of services not available either through the Basic Program or through other public agencies as a result of state residency requirements. Section 701(b) of the NDAA-02 strikes 10 U.S.C. 1079(d), (e), and (f), which were the statutory authority for the PFPWD, and re-authorizes the program with new sub-sections (d), (e), and (f). These new sub-sections add an extraordinary physical or psychological condition as a qualifying condition and limits the requirement to use public facilities to the extent that they are available and adequate to certain benefits under sub-section (e). They also include discretion to increase the monthly government cost-share for allowable services from a maximum of $1,000 per month and expand the benefit to allow for coverage of ECHO home health care and services beyond the Basic program. Section 701(e) also includes the discretion to allow coverage for custodial care and respite care.

Purpose. The primary purpose of the ECHO is to provide extended benefits to eligible beneficiaries that assist in the reduction of the disabling effects of an ECHO qualifying condition and that are not available through the Basic Program. Under 10 U.S.C. 1079(e), ECHO benefits may be provided only to the extent such service, supply or equipment is not a covered benefit under the Basic Program. This may include comprehensive health care services, including services necessary to maintain, minimize or prevent deterioration of, function of an eligible beneficiary.

Eligibility. Participation in the ECHO is voluntary and is available only for TRICARE-eligible family members of active duty service members who have a qualifying condition. Qualifying conditions are limited under 10 U.S.C. 1079(d)(3)(B) to beneficiaries who have

(a) Moderate or severe mental retardation; or

(b) A serious physical disability, as defined in 32 CFR 199.2; or

(c) An extraordinary physical or psychological condition, as defined in 32 CFR 199.2

ECHO Benefits. ECHO benefits established herein include diagnostic procedures to establish a qualifying condition, inpatient, outpatient, and comprehensive home health care supplies and services, training, habilitative or rehabilitative services, special education, assistive technology devices, institutional care within a State when a residential environment is required, transportation under certain circumstances, certain other services such as assistive services of a qualified interpreter or translator for deaf or blind beneficiaries in conjunction with receipt of other allowed ECHO benefits, equipment adaption and maintenance, and respite care, and ECHO home health care.

ECHO Respite Care. Under 10 U.S.C. 1079(e)(6), the Department may provide respite care under the ECHO program. Respite care is defined in 32 CFR 199.2 as short term care for a patient in order to provide rest and change for those who have been caring for the patient at home, usually the patient's family. DoD recognizes that caring for a special needs beneficiary poses special challenges, especially for active duty families. This rule establishes an ECHO benefit to provide a maximum of 16 hours per month of respite care. The respite care benefit is available for ECHO beneficiaries in any month during which the beneficiary receives ECHO benefits other than respite care under the ECHO Home Health Care benefit. Respite care services will be provided by a TRICARE-authorized home health agency and will provide health care services for the covered beneficiary, and not baby-sitting or child-care services for other members of the family. The benefit is not cumulative, that is, any respite care hours not used in one-month will not be carried over or banked for a subsequent month(s). The Government's cost-share incurred for the ECHO respite care services accrue to the ECHO maximum monthly benefit of $2,500.

Government Cost-share Liability for ECHO. The Government's monthly cost-share of all benefits provided to a beneficiary in a particular month under the PFPWD was statutorily limited to $1,000 by 10 U.S.C. 1079 (e)(2). The Government's monthly cost-share of any benefits provided under ECHO is now statutorily limited to $2,500 by section 701(b) of the NDAA-02 (10 U.S.C. 1079(f)(2)(A)) for benefits related to training, rehabilitation, special education, assistive technology devices, and institutional care in private, non-profit, public, and state institutions and facilities, and if appropriate, transportation to and from such institutions and facilities. Because the NDAA-02 provided no statutory limitation concerning the amount of the government's monthly cost-share for all other benefits under ECHO, the Department has discretion to determine for the maximum monthly government cost-share. Therefore, this rule increases the monthly Government cost-share from $1,000 to $2,500 for all benefits under ECHO, except for the new ECHO Home Health Care (EHHC) benefit as established herein. The primary reason for this increase is that the maximum government cost-share has not been adjusted since 1980. We will continue to review this issue to insure that the government's cost-share reasonably meets the needs of beneficiaries.

ECHO Home Health Care (EHHC). Under 10 U.S.C. 1079(e), extended benefits may be provided to eligible beneficiaries to the extent such benefits are not provided under provisions of chapter 55, title 10, United States Code, other than under this section. Under 10 U.S.C. 1079(e)(2), the ECHO may include “comprehensive home health care supplies and services which may include cost effective and medically appropriate services other than part-time or intermittent services (within the meaning of such terms as used in the second sentence of section 1861(m) of the Social Security Act).” Section 701(a) of the NDAA-02 requires home health care services under the Basic Program be provided in the manner and under the conditions described in section 1861(m) of the Social Security Act. Therefore, this rule establishes an ECHO Home Health Care (EHHC) benefit for qualifying beneficiaries.

EHHC Eligibility. To qualify for EHHC, the beneficiary must meet all general ECHO program eligibility requirements and must

(a) Physically reside within the 50 United States, the District of Columbia, Puerto Rico, the Virgin Islands, or Guam; and

(b) Be homebound, as defined in § 199.2 and as modified in this rule; and

(c) Require medically necessary skilled services that exceed the maximum level of coverage provided under the Basic Program's home health care benefit, and/or

(d) Require frequent interventions, other than skilled medical services, by the primary caregiver(s) (as “primary caregiver” is defined in § 199.2) such that EHHC services are necessary to allow primary caregiver(s) the opportunity to rest; and

(e) Be case managed (as “case management” is defined in § 199.2), including a periodic assessment of needs, and receive services as outlined in a written plan of care; and

(f) Receive home health care services from a TRICARE-authorized home health agency as described in § 199.6(b)(4)(xv).

EHHC Benefit. Covered TRICARE-authorized home health agency services are the same as, and provided under the same conditions as, those services provided under the TRICARE Basic Program under § 199.4(e)(21), with the exception that the EHHC benefit is not limited to part-time or intermittent home health care. Therefore, this rule sets out that TRICARE beneficiaries who are eligible for the ECHO and require home health care services beyond the coverage limits under the Basic Program will receive all home health care services under EHHC and no portion will be provided under the Basic Program.

EHHC Plan of Care. The level of ECHO home health care services authorized will be based on a written plan of care that supports the medical necessity of those services in excess of what can be authorized by the Basic Program, or, in the case of a beneficiary who requires frequent interventions, the need for EHHC in order to allow the primary caregiver(s) the opportunity to rest. The plan of care must include identification of the professional qualifications or skill level of the person required to provide the care. Reasonable justification for the medical necessity of the level of provider must be included in the plan of care, otherwise, reimbursement will not be authorized for that level of provider.

EHHC Respite Care. This rule establishes respite care within the EHHC benefit specifically tailored for families with a beneficiary who has a medical condition(s) that requires frequent interventions by the primary caregiver. For the purpose of this respite care, the term “frequent” means “more than two interventions during the eight-hour per day period that the primary caregiver would normally be sleeping.” The service performed during the interventions may have been taught to the primary caregiver by a medical professional, but the services performed by the primary caregiver are such that they can be performed safely and effectively by the average non-medical person without direct supervision of a licensed nurse or other health care provider. Therefore, when an eligible beneficiary's care plan reflects a need for frequent interventions by the primary caregiver, the beneficiary is eligible for EHHC respite care services in lieu of the ECHO respite care benefit. EHHC beneficiaries in this situation are eligible for eight hours per day for five (5) days per week of respite care by a TRICARE-authorized home health agency. The home health agency will provide health care services for the covered beneficiary so that the primary caregiver is relieved of his/her responsibility for providing such care for the duration of that period of respite care in order that the primary caregiver(s) may rest. The TRICARE-authorized home health agency will not provide baby-sitting or child care services for other members of the family. The benefit is not cumulative, that is, respite care hours not used in a given day will not be carried over or banked for use on another occasion. Also, EHHC respite care periods will not be provided consecutively, that is, a respite care period on one day will not be immediately followed by an EHHC respite care period the next day, thus prohibiting a continuous sixteen hour period of respite care. The government's cost-share incurred for these services accrue to the fiscal year maximum ECHO Home Health Care benefit.

Government Cost-share Liability for EHHC. TRICARE-authorized home health agencies who provide services under the Basic Program are reimbursed under § 199.14(h) using the same methods and rates as used under the Medicare home health agency prospective payment system under section 1895 of the Social Security Act (42 U.S.C. 1385fff) and 42 CFR part 484, subpart E, except for children under age ten and except as otherwise necessary to recognize distinct characteristics of TRICARE beneficiaries and as described in instructions issued by the Director, TRICARE Management Activity. However, the Medicare home health agency prospective payment system is designed to reimburse providers who provide part-time or intermittent services; it is not designed to reimburse providers for services that exceed those limits. Therefore, this rule set outs that the Department will reimburse home health agencies the allowable charges or negotiated rates. The maximum annual fiscal year cap per EHHC-eligible beneficiary for EHHC services is what the highest locally wage-adjusted maximum Medicare Resource Utilization Grouping (RUG-III) category cost to the Department would be if such services were provided in a TRICARE-authorized skilled nursing facility. (See Federal Register 67 FR 40597, June 13, 2002, concerning the TRICARE Sub-Acute Care Program; Uniform Skilled Nursing Facility Benefit; Home Health Care Benefit; Adopting Medicare Payment Methods for Skilled Nursing Facilities and Home Health Care Providers.) Because the highest RUG-III category is used to determine the EHHC fiscal year cap, the Department will not attempt to determine what RUG-III category would apply to the beneficiary if such beneficiary were in fact admitted for care into a TRICARE-authorized skilled nursing facility. The fiscal year cap will be recalculated each year following publication of the “Medicare Program; Prospective Payment System and Consolidated Billing for Skilled Nursing Facilities—Update; Notice”, or similar, by the Centers for Medicare and Medicaid Services in the Federal Register .

The maximum monthly Government cost-share to be paid to the home health agency for ECHO home health care will be the allowable charges or negotiated rates, but in no case will such payment exceed one-twelfth of the fiscal year cap calculated as above.

When EHHC beneficiaries move within the 50 United States, the District of Columbia, Puerto Rico, the Virgin Islands, or Guam, the annual fiscal year cap will be recalculated as above to reflect the correct wage-adjusted maximum RUG-III category cost for the beneficiary's new location and will apply for the remaining portion of that fiscal year.

EHHC Reimbursement. A TRICARE-authorized home health agency must bill for all authorized ECHO home health care services through established TRICARE claims mechanisms. No special billing arrangements will be authorized in coordination with coverage that may be provided by Medicaid (subject to any State Agency billing Agreements), or other federal, state, community or private programs.

For authorized ECHO home health care and respite care, TRICARE will reimburse the allowable charges or negotiated rates.

Beneficiary Cost-share Liability for ECHO, including EHHC. Under 10 U.S.C. 1079(f), members are required to share in the cost of any benefits provided to their dependents under ECHO. ECHO benefits are not subject to a deductible amount. Regardless of the number of ECHO eligible family members, the sponsor's monthly cost-share for allowed ECHO benefits is based upon the rank of the uniformed service member. Under 10 U.S.C. 1079(f)(1)(A), members with a rank of E-1 are required to pay the first $25 incurred per month, and members with a rank of O-10 are required to pay the first $250 incurred per month. This rule sets out the cost-share for members with ranks in-between such that the majority will pay less than $100 per month, with the most senior enlisted member paying less than $50 per month.

Sponsor rank-based cost-sharing (refer to Table 1, 32 CFR 199.5) applies to benefits covered by the ECHO, and these cost-shares do not apply toward the Basis Program's catastrophic cap under 10 U.S.C. 1079(b)(5). Also, the waiver of cost-shares for active duty family members enrolled in TRICARE Prime does not apply to ECHO as the statutory basis for the ECHO program and its cost-shares is separate and distinct from the Basic Program, including TRICARE Prime.

Other Requirements. Other ECHO requirements are as follows:

Registration. See 701(b) of the NDAA-02 (10 U.S.C. 1079(d)(1)) requires registration to receive ECHO benefits. Sponsors of potentially qualifying beneficiaries will seek to register their family member(s) for ECHO benefits through the applicable Managed Care Support Contractor (MCSC). The MCSC will determine eligibility and update the Defense Enrollment Eligibility Reporting System (DEERS) to reflect the beneficiary's ECHO eligibility. No ECHO benefits may be authorized unless the beneficiary is registered in DEERS as ECHO-eligible.

EFMP Enrollment. Each of the Military Services has its own Exceptional Family Member Program (EFMP). Although the EFMPs can interface with the Military Health System, they are actually military personnel programs. The purpose of those programs is to require military personnel offices to evaluate the ability of a military and civilian community to provide appropriate medical and/or educational services to service members' dependents who have special medical or educational needs before the Service re-assigns the member to a new location. Although each Service requires its members who have family members with special needs to enroll in the EFMP, some members do not comply with this requirement. The result is that some members arrive at assignment locations that are unable to accommodate the special medical and/or educational needs of their dependent(s). Dependents of members required to be enrolled in EFMP are similar if not identical to those who qualify for the ECHO program. The Services do not routinely provide EFMP enrollments to TRICARE, therefore, to provide a greater degree of coordination of services for TRICARE beneficiaries, this rule sets out that members will be required to provide evidence they are enrolled in their Services' Exceptional Family Member Program when registering for ECHO benefits. This requirement will enhance the probability that personnel are assigned to locations where there are sufficient qualified individual or institutional providers to provide the ECHO benefit to their dependents.

Use of Public Facilities. For ECHO benefits related to training, rehabilitation, special education, assistive technology devices, and institutional care in private, non-profit, public, and state institutions and facilities, and if appropriate, transportation to and from such institutions and facilities, the statute expressly requires use of public facilities to the extent such facilities are available and adequate as determined under this regulation.

We provided a 60-day public comment period following publication of the Proposed Rule in the Federal Register at 68 FR 46526 on August 6, 2003. This proposed rule superseded the proposed rule published at 66 FR 39699 on August 1, 2001, regarding the Individual Case Management Program. Two individuals provided several comments, summarized below.

Comment: The first commenter questioned the Department's decision regarding where the ECHO, in particular ECHO Home Health Care and respite care, will be available.

Response: The ECHO will generally be available wherever there are TRICARE beneficiaries eligible for the ECHO and appropriate TRICARE-authorized providers.

The focus of the ECHO Health Care benefit is to provide ECHO beneficiaries with the same benefit structure as provided by the Basic Program's Home Health Agency Prospective Payment System (HHA-PPS) but without its limitation that the services be provided on a “part-time or intermittent” basis. In order to assure the quality of care for TRICARE beneficiaries, the HHA-PPS provides that only Medicare-authorized Home Health Agencies are eligible for designations as TRICARE-authorized providers. Likewise, the Department also elected to utilize those same home health agencies to provide the ECHO respite care. Consequently, ECHO respite care and the ECHO Home Health Care benefits are limited to locations where there are Medicare-authorized home health agencies. Currently that is limited to the 50 United States, the District of Columbia, Puerto Rico, the Virgin Islands, and Guam.

Comment: That commenter also remarked about the cost of transportation to receive ECHO-authorized benefits.

Response: This rule sets out that costs for public and private transportation necessary to receive authorized ECHO benefits will be reimbursed subject to the limits herein.

Comment: The second commenter requested the Department provide the ECHO respite care benefit to multiple TRICARE beneficiaries within group settings, such as a day care center, and prorate the allowable cost among those receiving the respite care.

Response: The Department has identified several issues regarding the comment. First, other than when allowed by specific exceptions to its policies, TRICARE professional outpatient benefits are provided one-on-one, that is, one patient with one provider per episode of care. Consequently, there is no general provision for “group” type episodes-of-care or settings.

Second, the regulatory language at 32 CFR 199.2 defines respite care as “* * * short-term care for a patient in order to provide rest and change for those who have been caring for the patient at home , usually the patient's family.” Although there is no statutory restriction on where respite care services are provided, it is the Department's decision that such care be provided in the beneficiary's primary residence.

Last, as set out in this rule, both the ECHO respite care and the ECHO Home Health Care respite care benefits will be provided by TRICARE-authorized home health agencies. These providers will be reimbursed on the basis of allowable charges or negotiated rates, neither of which provides pro-rated assignment of TRICARE benefits nor pro-rated payments based on multiple TRICARE beneficiaries receiving care in a group setting.

The following modifications were made as a result of developing the implementing instructions:

(1) We clarified that TRICARE reimbursement for ECHO home health care and respite care will be the allowable charges or negotiated rates.

EO 12866 requires that a comprehensive regulatory impact analysis be performed on any economically significant regulatory action, defined as one that would result in an annual effort of $100 million or more on the national economy or which would have other substantial impacts. The Regulatory Flexibility Act (RFA) requires that each Federal agency prepare, and make available for public comment, a regulatory flexibility analysis when the agency issues a regulation which would have a significant impact on a substantial number of small entities. The estimated economic impact of this rule is estimated to be less than $22 million, therefore this rule is not an economically significant regulatory action and will not have a significant impact on a substantial number of small entities for purposes of the RFA. This rule, although not economically significant under Executive Order 12866, is a significant rule under Executive order 12866 and has been reviewed by the Office of Management and Budget.

This rule will not impose additional information collection requirements on the public under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3511). Existing DoD information systems to include the Defense Enrollment Eligibility Reporting System (DEERS) will be upgraded to reflect ECHO registration.

In the FR Doc. 04-17998 appearing on page 47766 in the Federal Register of Friday, August 6, 2004, the following correction is made:

The Environmental Protection Agency (EPA) is amending the table of currently approved information collection request (ICR) control numbers issued by OMB for various regulations. The amendment updates the table to list those information collection requirements which have been moved due to the restructure and consolidation of the Office of Ground Water and Drinking Water ICRs. An announcement that the PWSS ICR, OMB Control No. 2040-0090; the Microbial ICR, OMB Control No. 2040-0205; and the DBP/Chem/Rads ICR, OMB Control No. 2040-0204 had been forwarded to the Office of Management and Budget (OMB) for review and approval appeared in the Federal Register on October 5, 2001 (66 FR 51031-51035). In addition, EPA is adding entries for the Public Notification rule and for previous omissions that have not been included in the Part 9 table. The affected regulations are codified at 40 CFR parts 141 and 142. EPA will continue to present OMB control numbers in a consolidated table format to be codified in 40 CFR part 9 of the Agency's regulations, and in each Code of Federal Regulations (CFR) volume containing EPA regulations. The table lists CFR citations with reporting, recordkeeping, or other information collection requirements, and the current OMB control numbers. This listing of the OMB control numbers and their subsequent codification in the CFR satisfies the requirements of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ) and OMB's implementing regulations at 5 CFR part 1320.

These ICRs were previously subject to public notice and comment prior to OMB approval. Because the ICRs have already been subject to public notice and comment and because of the ministerial nature of the table, EPA finds that further notice and comment is unnecessary. As a result, EPA finds that there is “good cause” under section 553(b)(B) of the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B), to amend this table without prior notice and comment. For the same reasons, EPA believes that there is “good cause” to make this rule effective upon publication under section 553(d)(3) of the APA.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore not subject to review by the Office of Management and Budget. In addition, this action does not impose any enforceable duty, contain any unfunded mandate, or impose any significant or unique impact on small governments as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not require prior consultation with State, local, and Tribal government officials as specified by Executive Order 12875 (58 FR 58093, October 28, 1993) or Executive Order 13084 (63 FR 27655, May 10, 1998), or involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994). Because this action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This rule is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks.

The Congressional Review Act (5 U.S.C. 801 et seq. ), as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 808 allows the issuing agency to make a good cause finding that notice and public procedure is impracticable, unnecessary or contrary to the public interest. This determination must be supported by a brief statement. 5 U.S.C. 808(2). As stated previously, EPA has made such a good cause finding, including the reasons therefor, and established an effective date of August 20, 2004. EPA has submitted reports containing these rules and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

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

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

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

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

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

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

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

In the Federal Register of May 6, 2004 (69 FR 25384) (FRL-7356-8), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 2E6442) by Interregional Research Project Number 4 (IR-4), 681 U.S. Highway 1 South, North Brunswick, NJ 08902-3390. That notice included a summary of the petition prepared by IR-4, the petitioner. There were no comments received in response to the notice of filing.

The petition requested that 40 CFR 180.185 be amended by establishing tolerances for residues of the herbicide DCPA or chlorthal dimethyl, dimethyl tetrachloroterephthalate, in or on oriental radish, basil, coriander, dill, marjoram, chives, ginseng, celeriac, chicory, mradicchio, parsley (fresh) and parsley (dried) at 2.0, 5.0, 5.0, 5.0, 5.0, 5.0, 2.0, 2.0, 5.0, 2.0, 5.0 and 15 parts per million (ppm), respectively. The proposed tolerances were corrected to conform to Food and Feed Commodity Vocabulary database ( http://www.epa.gov/pesticides/foodfeed/ ) and to include its metabolites to read as follows: Combined residues of the herbicide DCPA (or chlorthal dimethyl), dimethyl tetrachloroterephthalate, and its metabolites monomethyl tetrachloroterephthalate (MTP) and tetrachloroterephthalate (TPA) (calculated as dimethyl tetrachloroterephthalate) in or on basil, dried leaves at 5.0 ppm, basil, fresh leaves at 20.0 ppm, celeriac at 2.0 ppm, chicory, roots at 2.0 ppm, chicory, tops at 5.0 ppm, chive at 5.0 ppm, coriander, leaves at 5.0 ppm, dill at 5.0 ppm, ginseng at 2.0 ppm, marjoram at 5.0 ppm, parsley, leaves at 5.0 ppm, parsley, dried leaves at 20 ppm, radicchio at 5.0 ppm, and radish, oriental at 2.0 ppm.

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

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

Consistent with section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure, consistent with section 408(b)(2) of FFDCA, for a tolerance for combined residues of DCPA, dimethyl tetrachloroterephthalate, and its metabolites monomethyl tetrachloroterephthalate (MTP) and tetrachloroterephthalate (TPA) (calculated as dimethyl tetrachloroterephthalate) in or on basil, dried leaves at 5.0 ppm, basil, fresh leaves at 20.0 ppm, celeriac at 2.0 ppm, chicory, roots at 2.0 ppm, chicory, tops at 5.0 ppm, chive at 5.0 ppm, coriander, leaves at 5.0 ppm, dill at 5.0 ppm, ginseng at 2.0 ppm, marjoram at 5.0 ppm, parsley, leaves at 5.0 ppm, parsley, dried leaves at 20 ppm, radicchio at 5.0 ppm, and radish, oriental at 2.0 ppm. EPA's assessment of exposures and risks associated with establishing the tolerance follows.

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

The dose at which no adverse effects are observed (the NOAEL) from the toxicology study identified as appropriate for use in risk assessment is used to estimate the toxicological level of concern (LOC). However, the lowest dose at which adverse effects of concern are identified (the LOAEL) is sometimes used for risk assessment if no NOAEL was achieved in the toxicology study selected. An uncertainty factor (UF) is applied to reflect uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns. An UF of 100 is routinely used, 10X to account for interspecies differences and 10X for intraspecies differences.

Three other types of safety or uncertainty factors may be used: “Traditional uncertainty factors;” the “special FQPA safety factor;” and the “ default FQPA safety factor.” By the term “traditional uncertainty factor,” EPA is referring to those additional uncertainty factors used prior to FQPA passage to account for database deficiencies. These traditional uncertainty factors have been incorporated by the FQPA into the additional safety factor for the protection of infants and children. The term “special FQPA safety factor” refers to those safety factors that are deemed necessary for the protection of infants and children primarily as a result of the FQPA. The “default FQPA safety factor” is the additional 10X safety factor that is mandated by the statute unless it is decided that there are reliable data to choose a different additional factor (potentially a traditional uncertainty factor or a special FQPA safety factor).

For dietary risk assessment (other than cancer) the Agency uses the UF to calculate an acute or chronic reference dose (acute RfD or chronic RfD) where the RfD is equal to the NOAEL divided by an UF of 100 to account for interspecies and intraspecies differences and any traditional uncertainty factors deemed appropriate (RfD = NOAEL/UF). Where a special FQPA safety factor or the default FQPA safety factor is used, this additional factor is applied to the RfD by dividing the RfD by such additional factor. The acute or chronic Population Adjusted Dose (aPAD or cPAD) is a modification of the RfD to accommodate this type of safety factor.

For non-dietary risk assessments (other than cancer) the UF is used to determine the LOC. For example, when 100 is the appropriate UF (10X to account for interspecies differences and 10X for intraspecies differences) the LOC is 100. To estimate risk, a ratio of the NOAEL to exposures (margin of exposure (MOE) = NOAEL/exposure) is calculated and compared to the LOC.

The linear default risk methodology (Q*) is the primary method currently used by the Agency to quantify carcinogenic risk. The Q* approach assumes that any amount of exposure will lead to some degree of cancer risk. A Q* is calculated and used to estimate risk which represents a probability of occurrence of additional cancer cases (e.g., risk). An example of how such a probability risk is expressed would be to describe the risk as one in one hundred thousand (1 X 10 - 5 ), one in a million (1 X 10 - 6 ), or one in ten million (1 X 10 - 7 ). Under certain specific circumstances, MOE calculations will be used for the carcinogenic risk assessment. In this non-linear approach, a “point of departure” is identified below which carcinogenic effects are not expected. The point of departure is typically a NOAEL based on an endpoint related to cancer effects though it may be a different value derived from the dose response curve. To estimate risk, a ratio of the point of departure to exposure (MOE cancer = point of departure/exposures) is calculated.

A summary of the toxicological endpoints for DCPA used for human risk assessment is shown in Table 3 of this unit:

A summary of the toxicological endpoints for TPA used for human risk assessment is shown in Table 4 of this unit:

1. Dietary exposure from food and feed uses . Tolerances have been established (40 CFR 180.185) for the combined residues of DCPA, dimethyl tetrachloroterephthalate, and its metabolites monomethyl tetrachloroterephthalate (MTP) and tetrachloroterephthalate (TPA) (calculated as dimethyl tetrachloroterephthalate) in or on a variety of raw agricultural commodities. Risk assessments were conducted by EPA to assess dietary exposures from DCPA and its metabolites tetrachloroterephthalate (MTP) and tetrachloroterephthalate (TPA) (calculated as dimethyl tetrachloroterephthalate) in food as follows:

i. Acute exposure . Acute dietary risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a one-day or single exposure.

An effect of concern attributable to a single exposure (dose) was not identified from the oral toxicity studies including the developmental toxicity studies in rat and rabbits.

ii. Chronic exposure . In conducting this chronic dietary risk assessment the Dietary Exposure Evaluation Model (DEEM TM ) analysis evaluated the individual food consumption as reported by respondents in the USDA1989-1992 Nationwide Continuing Surveys of Food Intake by Individuals (CSFII) and accumulated exposure to the chemical for each commodity. The following assumptions were made for the chronic exposure assessments: Anticipated residues for currently registered crops and tolerance level used for the proposed crops and the percent crop treated (PCT) data were used for currently registered crops and 100 % of the crop treated for the proposed uses.

iii. Cancer . In conducting this cancer risk assessment the Dietary Exposure Evaluation Model (DEEM TM ) analysis evaluated the individual food consumption as reported by respondents in the USDA1989-1992 Nationwide Continuing Surveys of Food Intake by Individuals (CSFII) and accumulated exposure to the chemical for each commodity. The following assumptions were made for the cancer risk assessments: Anticipated residues for currently registered crops and tolerance level used for the proposed crops and the percent crop treated (PCT) data were used for currently registered crops and 100 % of the crop treated for the proposed uses.

iv. Anticipated residue and percent crop treated (PCT) information . Section 408(b)(2)(E) of FFDCA authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide chemicals that have been measured in food. If EPA relies on such information, EPA must require that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. Following the initial data submission, EPA is authorized to require similar data on a time frame it deems appropriate. As required by section 408(b)(2)(E) of FFDCA, EPA will issue a data call-in for information relating to anticipated residues to be submitted no later than 5 years from the date of issuance of this tolerance.

Section 408(b)(2)(F) of FFDCA states that the Agency may use data on the actual percent of food treated for assessing chronic dietary risk only if the Agency can make the following findings: Condition 1, that the data used are reliable and provide a valid basis to show what percentage of the food derived from such crop is likely to contain such pesticide residue; Condition 2, that the exposure estimate does not underestimate exposure for any significant subpopulation group; and Condition 3, if data are available on pesticide use and food consumption in a particular area, the exposure estimate does not understate exposure for the population in such area. In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of PCT as required by section 408(b)(2)(F) of FFDCA, EPA may require registrants to submit data on PCT.

The Agency used PCT information in Table 5 as follows:

The Agency believes that the three conditions listed above have been met. With respect to Condition 1, PCT estimates are derived from Federal and private market survey data, which are reliable and have a valid basis. EPA uses a weighted average PCT for chronic dietary exposure estimates. This weighted average PCT figure is derived by averaging State-level data for a period of up to 10 years, and weighting for the more robust and recent data. A weighted average of the PCT reasonably represents a person's dietary exposure over a lifetime, and is unlikely to underestimate exposure to an individual because of the fact that pesticide use patterns (both regionally and nationally) tend to change continuously over time, such that an individual is unlikely to be exposed to more than the average PCT over a lifetime. For acute dietary exposure estimates, EPA uses an estimated maximum PCT. The exposure estimates resulting from this approach reasonably represent the highest levels to which an individual could be exposed, and are unlikely to underestimate an individual's acute dietary exposure. The Agency is reasonably certain that the percentage of the food treated is not likely to be an underestimation. As to Conditions 2 and 3, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available information on the regional consumption of food to which DCPA may be applied in a particular area.

2. Dietary exposure from drinking water . The Agency lacks sufficient monitoring exposure data to complete a comprehensive dietary exposure analysis and risk assessment for DCPA and its environmental degradate TPA in drinking water. Because the Agency does not have comprehensive monitoring data, drinking water concentration estimates are made by reliance on simulation or modeling taking into account data on the physical characteristics of DCPA and TPA.

The Agency uses the Generic Estimated Environmental Concentration (GENEEC) or the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) to estimate pesticide concentrations in surface water and SCI-GROW, which predicts pesticide concentrations in ground water. In general, EPA will use GENEEC (a tier 1 model) before using PRZM/EXAMS (a tier 2 model) for a screening-level assessment for surface water. The GENEEC model is a subset of the PRZM/EXAMS model that uses a specific high-end runoff scenario for pesticides. GENEEC incorporates a farm pond scenario, while PRZM/EXAMS incorporate an index reservoir environment in place of the previous pond scenario. The PRZM/EXAMS model includes a percent crop area factor as an adjustment to account for the maximum percent crop coverage within a watershed or drainage basin.

None of these models include consideration of the impact processing (mixing, dilution, or treatment) of raw water for distribution as drinking water would likely have on the removal of pesticides from the source water. The primary use of these models by the Agency at this stage is to provide a screen for sorting out pesticides for which it is unlikely that drinking water concentrations would exceed human health levels of concern.

Since the models used are considered to be screening tools in the risk assessment process, the Agency does not use estimated environmental concentrations (EECs), which are the model estimates of a pesticide's concentration in water. EECs derived from these models are used to quantify drinking water exposure and risk as a %RfD or %PAD. Instead drinking water levels of comparison (DWLOCs) are calculated and used as a point of comparison against the model estimates of a pesticide's concentration in water. DWLOCs are theoretical upper limits on a pesticide's concentration in drinking water in light of total aggregate exposure to a pesticide in food, and from residential uses. Since DWLOCs address total aggregate exposure to DCPA they are further discussed in the aggregate risk sections in Unit III.E.

Based on the PRZM/EXAMS and SCI-GROW models, the EECs of DCPA for acute exposures are estimated to be 22 parts per billion (ppb) for surface water and 0.17 ppb for ground water and of TPA for acute exposures are estimated to be 116 parts per billion (ppb) for surface water and 192 ppb for ground water. The EECs for chronic exposures of DCPA are estimated to be 22 ppb for surface water and 0.17 ppb for ground water and of TPA are estimated to be 116 ppb for surface water and 192 ppb for ground water.

3. From non-dietary exposure . The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).

DCPA is currently registered for use on the following residential non-dietary sites: Garden vegetables and turf. The risk assessment was conducted for exposure to the active ingredient DCPA and manufacturing impurity hexachlorobenzene (HCB) using the following residential exposure assumptions:

1. Garden vegetables . Significant post application exposures are not anticipated for garden vegetables because the applications are made to freshly cultivated soil using only the granular products. The risks of acute oral exposures due to granular ingestion by children were not assessed because adverse effects were not seen following a single dose.

2. Turf . Significant post application exposures are anticipated for turf because broadcast applications are made to prevent the growth of weeds throughout the lawn. These exposures are anticipated to be short term because only one or two applications are made per growing season and the label recommended application interval is two months or longer. Only incidental oral exposures were assessed for toddlers because a dermal endpoint for short/intermediate term exposures was not selected.

A Turf Transferable Residue (TTR) study involved the application of dacthal W-75 to Kentucky bluegrass turf plots in Ohio. Three of the treated plots were irrigated with 0.5 water immediately following sampling at one hour after treatment and 0.18 of rain occurred at day after treatment (DAT) six. Irrigation reduced the residue from an initial value of 4.2 μg/cm 2 at DAT 0.04 to 1.6 μg/cm 2 at DAT 0.08. The residue then dissipated at rate of 6.1 percent per day from DAT 1 until the last day of the study (DAT 14).

The Margins of Exposure (MOEs) calculated for toddler post application turf exposure are presented in Table 6.

The cancer risks for adults exposed to treated and irrigated turf were calculated using standard assumptions and the TTR data averaged over 14 days. The data were normalized to an average application rate of 12.5 lbs ai/acre. It was assumed four days of exposure to turf that was treated within 14 days would occur per year.

The cancer risks calculated for adult post application turf exposure are presented in Table 7.

4. Cumulative effects from substances with a common mechanism of toxicity . Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

EPA does not have, at this time, available data to determine whether DCPA has a common mechanism of toxicity with other substances. Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to DCPA and any other substances and DCPA does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that DCPA has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see the policy statements released by EPA's OPP concerning common mechanism determinations and procedures for cumulating effects from substances found to have a common mechanism on EPA's web site at http://www.epa.gov/pesticides/cumulative/ .

1. In general . Section 408 of FFDCA provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. Margins of safety are incorporated into EPA risk assessments either directly through use of a MOE analysis or through using uncertainty (safety) factors in calculating a dose level that poses no appreciable risk to humans. In applying this provision, EPA either retains the default value of 10X when reliable data do not support the choice of a different factor, or, if reliable data are available, EPA uses a different additional safety factor value based on the use of traditional uncertainty factors and/or special FQPA safety factors, as appropriate.

2. The toxicology database for DCPA is complete for FQPA purposes and there are no residual uncertainties for pre-/post-natal toxicity. Based on the quality of the exposure data, EPA determined that the 10X SF to protect infants and children should be removed. The FQPA factor is removed based on the following:

i. There is no quantitative or qualitative evidence of increased susceptibility of rat and rabbit fetuses to in utero exposure to DCPA in developmental toxicity studies. There is no quantitative or qualitative evidence of increased susceptibility to DCPA following pre-/post-natal exposure to a 2-generation reproduction study.

ii. There is no concern for developmental neurotoxicity resulting from exposure to DCPA. A developmental neurotoxicity study (DNT) study is not required.

iii. The toxicological database is complete for FQPA assessment.

iv. The dietary food exposure assessment is based on average field trial values corrected by percent crop treated.

v. The dietary drinking water assessment utilizes water concentration values generated by model and associated modeling parameters which are designed to provide conservative, health protective, high-end estimates of water concentrations which will not likely be exceeded.

vi. Submitted turf transferable residue (TTR) data will be used along with the Residential Standard Operating Procedures to assess post-application exposure to children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by DCPA.

To estimate total aggregate exposure to a pesticide from food, drinking water, and residential uses, the Agency calculates DWLOCs which are used as a point of comparison against EECs. DWLOC values are not regulatory standards for drinking water. DWLOCs are theoretical upper limits on a pesticide's concentration in drinking water in light of total aggregate exposure to a pesticide in food and residential uses. In calculating a DWLOC, the Agency determines how much of the acceptable exposure (i.e., the PAD) is available for exposure through drinking water [e.g., allowable chronic water exposure (mg/kg/day) = cPAD - (average food + residential exposure)]. This allowable exposure through drinking water is used to calculate a DWLOC.

A DWLOC will vary depending on the toxic endpoint, drinking water consumption, and body weights. Default body weights and consumption values as used by the EPA's Office of Water are used to calculate DWLOCs: 2 liter (L)/70 kg (adult male), 2L/60 kg (adult female), and 1L/10 kg (child). Default body weights and drinking water consumption values vary on an individual basis. This variation will be taken into account in more refined screening-level and quantitative drinking water exposure assessments. Different populations will have different DWLOCs. Generally, a DWLOC is calculated for each type of risk assessment used: Acute, short-term, intermediate-term, chronic, and cancer.

When EECs for surface water and ground water are less than the calculated DWLOCs, OPP concludes with reasonable certainty that exposures to the pesticide in drinking water (when considered along with other sources of exposure for which OPP has reliable data) would not result in unacceptable levels of aggregate human health risk at this time. Because OPP considers the aggregate risk resulting from multiple exposure pathways associated with a pesticide's uses, levels of comparison in drinking water may vary as those uses change. If new uses are added in the future, OPP will reassess the potential impacts of residues of the pesticide in drinking water as a part of the aggregate risk assessment process.

1. Acute risk . An effect of concern attributable to a single exposure (dose) was not identified from the oral toxicity studies including the developmental toxicity studies in rat and rabbits. No acute risk is expected from exposure to DCPA.

2. Chronic risk . Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that exposure to DCPA from food will utilize 0.97 % of the cPAD for the U.S. population, 1.1 % of the cPAD for Children (1 - 6 years old). Based on the garden and turf use patterns, chronic residential exposure to residues of DCPA is not expected. In addition, there is potential for chronic dietary exposure to DCPA in drinking water. After calculating DWLOCs and comparing them to the EECs for surface and ground water, EPA does not expect the aggregate exposure to exceed 100% of the cPAD, as shown in Table 8 of this unit:

Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that exposure to TPA from food will utilize 0.02% of the cPAD for the U.S. population, and all infants and children subgroups. Based on the garden and turf use patterns, chronic residential exposure to residues of TPA is not expected. In addition, there is potential for chronic dietary exposure to TPA in drinking water.After calculating DWLOCs and comparing them to the EECs for surface and ground water, EPA does not expect the aggregate chronic exposure to TPA to exceed 100% of the cPAD, as shown in Table 9 of this unit:

Table 9.—Aggregate Risk Assessment for Chronic (Non- Cancer) Exposure to TPA Population Subgroup cPAD mg/kg/day % cPAD (Food) Surface Water EEC (ppb) Ground Water EEC (ppb) Chronic DWLOC (ppb) U.S. Population 0.5 0.02 116 192 17,500 All Infants 0.5 0.02 116 192 5,000 Children 1- 6 0.5 0.02 116 192 5,000 Females 13 - 50 0.5 0.02 116 192 15,000

3. Short-term risk . Short-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

DCPA is currently registered for use that could result in short-term residential exposure and the Agency has determined that it is appropriate to aggregate chronic food and water and short-term exposures for DCPA.

Short-term DWLOCs were calculated and compared to the EECs for chronic exposure of DCPA in ground and surface water based on chronic food exposure plus the residential handler exposure for adults and the chronic food exposure alone for toddlers. After calculating DWLOCs and comparing them to- the EECs for surface and ground water, EPA does not expect short-term aggregate exposure to exceed the Agency's level of concern, as shown in Table 10 of this unit:

EPA Region 8 is publishing this direct final notice of partial deletion of the Davenport and Flagstaff Smelters Superfund Site from the NPL.

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

Because EPA considers this action to be non-controversial and routine, EPA is taking it without prior publication of a notice of intent to partially delete. This action will be effective October 19, 2004 unless EPA receives adverse comments by September 20, 2004 on this notice or the parallel notice of intent to partially delete published in the “Proposed Rules” section of today's Federal Register . If adverse comments are received within the 30-day public comment period on this document, EPA will publish a timely withdrawal of this direct final notice of partial deletion before the effective date of the deletion and the deletion will not take effect. EPA will, as appropriate, prepare a response to comments and continue with the partial deletion process on the basis of the notice of intent to partially delete and the comments already received. There will be no additional opportunity to comment.

Section II of this document explains the criteria for deleting, or partially deleting, sites from the NPL. Section III discusses procedures that EPA is using for this action. Section IV discusses the residential properties that EPA intends to delete from the Davenport and Flagstaff Smelters Superfund Site and demonstrates how they meet the partial deletion criteria. Section V discusses EPA's action to partially delete the Site from the NPL unless adverse comments are received during the public comment period.

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

i. Section 300.425(e)(1)(i): Responsible parties or other persons have implemented all appropriate response actions required;

ii. Section 300.425(e)(1)(ii): All appropriate Fund-financed (Hazardous Substance Superfund Response Trust Fund) response action under CERCLA has been implemented and no further response action by responsible parties is appropriate; or

iii. Section 300.425(e)(1)(iii): The remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate.

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

The following procedures apply to the partial deletion:

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

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

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

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

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

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

While EPA does not believe that any future response action within the residential properties included in this partial deletion will be needed, if future conditions warrant such action, the deleted areas will remain eligible for future response actions. Furthermore, this partial deletion does not alter the status of the remaining portions of the Davenport and Flagstaff Smelters Superfund Site, which is not proposed for deletion and remains on the NPL.

The following information provides EPA's rationale for deleting the portions of the Site referred to above from the NPL.

The Davenport and Flagstaff Smelters Superfund Site consists of properties located at the mouth of Little Cottonwood Canyon, which is located approximately 15 miles southeast of Salt Lake City, in Salt Lake County, Utah. The Davenport Smelter was located on the southern side of the canyon, near Little Cottonwood Canyon Road. The Flagstaff Smelter was located north of Little Cottonwood Creek. Surrounding these smelter sites are residential properties, which have been grouped into the Residential Operable Unit (ROU) of the Davenport and Flagstaff Smelters Superfund Site. The Site was divided into a Residential Operable Unit and a Non-Residential Operable Unit in order to more efficiently remediate the Site (see section IV B). The real property addresses of the 23 properties to be deleted are:

The Davenport and Flagstaff Smelters Superfund Site includes the remains of three old smelters from the late 1800s. The Davenport Smelter was constructed on the south side of Little Cottonwood Creek as was the McKay Smelter. The Flagstaff Smelter was located less than a quarter mile to the north, near 9500 South Wasatch Boulevard, on the north side of Little Cottonwood Creek.

Airborne particles from the smelter's smokestacks included lead and arsenic used in the smelting process. These contaminants were deposited in soils around the smelters. Slag, which is the waste product from the smelting process, was also left behind. The UDEQ and the Salt Lake County Health Department were alerted when a local gold prospector reported colored soils indicative of early smelting activities.

In 1992, EPA conducted on-site soil analyses and found high levels of lead and arsenic. Based on the results of the 1992 sampling efforts, a Preliminary Assessment (PA) was performed in August 1992. Focused site inspections were performed for the Davenport and Flagstaff Smelters Site in 1994. Additional sampling activities were conducted in June 1994 near the former smelter sites in order to determine the distribution of the soil contamination dispersed away from the source area via air, surface water, or groundwater pathways. It was determined that the possibility of release was likely due to the proximity of surface water, proximity of the groundwater recharge area, and the commonly observed dispersion of windblown dust.

A Site Characterization of the residential areas near the two smelters was performed in 1998. A total of 740 samples were collected from 32 residences near the locations of the two smelters. Surface and subsurface samples were collected in the general area of the former smelter locations in order to provide information regarding the source, nature, and extent of arsenic and lead contamination. Lead and arsenic contamination was found in surface and subsurface soils in the residential areas surrounding both of the smelter sites at concentrations well above risk-based screening levels established by the EPA. EPA proposed the Site for the National Priorities List in January 2000.

There are two operable units at the Site. The Residential Operable Unit (ROU) addresses soil contamination on residential properties in the areas near the locations of the former smelters. About 500 people reside within these areas. The Non-residential Operable Unit (NROU) addresses soil contamination in the undeveloped and non-residential properties surrounding the smelter sites.

The residential properties to be deleted are located within the ROU. The owners of 9767 South Little Cottonwood Place performed a voluntary removal of soil with levels of arsenic and lead above established action levels for the Site. After the removal was complete and documented, the owners received a no further action letter from EPA. The owners of the 22 other properties were issued no further action letters based on the results of the Site risk assessment and the characterization study.

A Baseline Risk Assessment (BLRA) was performed for the Davenport and Flagstaff Smelters Site by the EPA as part of the Site Characterization to determine if risks to human health associated with the contamination identified in previous investigations were sufficient to warrant remediation. The findings of the BLRA indicate that ingestion of arsenic and lead contaminated soils presents the primary health-threatening exposure pathway and presents an unacceptable risk to current and future residents of the Site. Speciation tests were performed on site soils to determine which forms of arsenic and lead were present. Certain types of heavy metal compounds are more available for uptake into the human body. Most of the lead in the contaminated soil appears to be in the form of lead carbonate, lead arsenate and metal bearing iron and manganese oxides. Most of the arsenic in the contaminated soil was found to be in the form of lead arsenate. Lead carbonate and lead arsenate are considered extremely bioavailable for uptake into the human body.

After a thorough review of pertinent data, EPA has identified 10 ug/dL of blood lead as the concentration level at which adverse health effects begin to occur. Furthermore, EPA has set a goal that there should be no more than a 5% chance that a child will have a blood lead concentration above that level. Likewise, the Centers for Disease Control (CDC) has established a guideline of 10 ug/dL of blood lead in preschool children. This is believed to prevent or minimize cognitive deficits associated with lead.

The health effect of chief concern for exposure to arsenic is increased risk of cancer. Because cancer is a chronic disease associated with long-term exposure, the appropriate exposure unit is the area over which a resident is exposed over the course of many years. EPA typically considers risks below one in one million to be so small as to be negligible and risks above 100 in one million to be sufficiently large that some sort of action or intervention is usually needed. Average risk estimates associated with arsenic contaminated soils in the ROU ranged from 2 to 10 in one million, and reasonable maximum exposure (RME) risk estimates range from 20 to 100 in one million. A joint risk management decision was made by UDEQ and EPA to use the level for 100 cancers in one million as the action level for arsenic at the Site.

Ecological risk was not specifically evaluated for the ROU due to the residential setting. In such a setting, risk to residents generally exceeds any ecological risks, and as such, any remediation required to abate human health risk will abate any ecological risks. Ecological risks for the entire site will be evaluated in conjunction with response actions at the NROU.

A Site Characterization Report was completed in February 2000 and the Remedial Investigation (RI) was completed in October 2001. These studies were conducted to further characterize contaminated soil at residential properties surrounding the two smelters. The Contaminants of Concern (COCs) identified by UDEQ and EPA for the ROU are arsenic and lead. Other heavy metals are present at elevated levels in site soils; however, the levels of these metals were not considered harmful to human health. Health based clean up goals of 600 mg/kg of lead and 126 mg/kg of arsenic have been established for the Site. Toxicity Characteristic Leaching Procedure (TCLP) analysis was performed to determine hazardous characteristics of contaminated soil. The results of the TCLP analysis indicated high levels of lead and arsenic in the soil, and that the lead in the soil was fairly leachable. It was estimated that 80% of the soil may constitute hazardous waste and require treatment before disposal. It is unlikely that ground water has been impacted by the contamination and steep slopes pose minimal risk of exposure and will not be cleaned up. Twenty properties contain known contamination that requires cleanup.

A Focused Feasibility Study evaluating possible remedies for these properties was completed in December 2001. Three remedial alternatives were selected for evaluation: Alternative 1: No Action; Alternative 2: Excavation and disposal of all contaminated soil (Cost = $11,950,000); Alternative 3: Excavation of contaminated soil under non-native vegetation and soil cover around native vegetation (Cost = $9,717,000).

The selected remedy agreed upon by the EPA and UDEQ for the Residential Operable Unit was Alternative 2, excavation and disposal of all contaminated soil. This decision was made after issuance of the Proposed Plan, which describes the remedial alternatives considered for the Site and the rationale for choosing the selected remedy, and review of the public comments submitted on the Proposed Plan. Soils are to be excavated to a depth of 18 inches for all properties recommended for remediation that have soil-lead levels exceeding 600 mg/kg and arsenic levels exceeding 126 mg/kg. Properties with principle threat wastes, which are contaminants that are either highly toxic or highly mobile, may be excavated to depths greater than 18 inches. Hand excavation will be conducted around affected areas of native vegetation. Excavated soils will be disposed at an appropriate disposal facility. Following excavation, clean backfill and topsoil will be imported. Non-native vegetation that is removed will also be replanted. The interiors of all buildings located on remediated properties will be cleaned to remove dust, and institutional controls will be developed and implemented for any contamination left in place on properties recommended for remediation.

Twenty residential properties require soil remediation. Four of the twenty properties, due to highly elevated concentrations of lead and arsenic in soil, are being addressed pursuant to an action memorandum for time critical removals, dated April 22, 2004. The remaining 16 properties will be addressed either pursuant to the April 2004 action memorandum or pursuant to the September 2002 Record of Decision. The cleanup and remediation standards are identical for both response actions.

No waste above action levels was identified on the 23 residential properties proposed for deletion from the Site, with the exception of the 9767 South Little Cottonwood Place property. All soils contamination above action levels was removed from this property, allowing unlimited use and unrestricted exposure. No five-year reviews will be required for these 23 properties since the properties are available for unlimited use and unrestricted exposure.

Cleanup standards for the ROU were arrived at through the use of health-based goals. Based on the results of the BLRA, a risk management decision made by the UDEQ and EPA established action levels of 600 mg/kg for lead and 126 mg/kg for arsenic in residential surface soils for properties within the ROU. The 600 mg/kg action level for lead was based on a target such that no child under the age of seven has more than a 5 percent chance of exceeding a blood lead concentration of 10 micrograms of lead per deciliter of blood. The 126 mg/kg action level for arsenic was derived from a target cancer risk level of 10 − 4 .

The RI and FFS reports and the Proposed Plan for the Davenport and Flagstaff Smelters Superfund Site were made available to the public June 10, 2002. A public comment period was held from June 10, 2002 to August 22, 2002. In addition, a public meeting was held on June 20, 2002 to present the Proposed Plan. A response to the comments received on the Proposed Plan is included in the Responsiveness Summary, which is part of the Record of Decision (ROD).

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

The EPA, with concurrence of the State of Utah, has determined that all appropriate responses under CERCLA for the referenced properties have been completed and that no further response actions under CERCLA are necessary. The properties in this partial deletion either did not require remediation or all soil containing identified contaminants was removed. Therefore, EPA is deleting these 23 properties from the NPL.

Because EPA considers this action to be non-controversial and routine, EPA is taking it without prior publication. This action will be effective October 19, 2004 unless EPA receives adverse comments by September 20, 2004 on a parallel notice of intent to delete published in the “Proposed Rules” section of today's Federal Register . If adverse comments are received within the 30-day public comment period, EPA will publish a timely withdrawal of this direct final notice of partial deletion before the effective date of the deletion and it will not take effect. EPA will simultaneously prepare a response to comments and continue with the partial deletion process on the basis of the notice of intent to partially delete and the comments already received. There will be no additional opportunity to comment.

This summary of the Commission's First Order on Reconsideration and Fifth Report and Order, IB Docket No. 02-34, FCC 04-147, adopted June 22, 2004, and released July 7, 2004. The complete text of this First Order on Reconsideration and Fifth Report and Order is available for public inspection and copying during regular business hours at the FCC Reference Information Center, 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, or via e-mail http://www.BCPIWEB.com.

Regulatory Flexibility Analysis: In this Fifth Report and Order, the Commission adopts revisions to the current interim bond amounts. Those bond amounts are now $3 million for each GSO satellite and $5 million for each NGSO constellation as the required bond amounts on a going-forward basis. In addition, in this Fifth Report and Order, the Commission considered and rejected giving all satellite licensees the option of creating an escrow account rather than posting a bond. The effect of these rule revisions is to reduce the administrative burdens of space station licensees. We expect that this change will be minimal and positive. Therefore, we certify that the requirements of this Fifth Report and Order will not have a significant economic impact on a substantial number of small entities. The Commission will send a copy of the Fifth Report and Order, including a copy of this final certification, in a report to Congress pursuant to the Congressional Review Act. See 5 U.S.C. 801(a)(1)(A). In addition, the Fifth Report and Order and this certification will be sent to the Chief Counsel for Advocacy of the Small Business Administration, and will be published in the Federal Register . See 5 U.S.C. 605(b).

Summary of Report and Order: In the First Report and Order in IB Docket No. 02-34, 68 FR 51499, August 27, 2003, the Commission adopted several revisions to its satellite licensing procedures, including a requirement that geostationary orbit (GSO) licensees other than mobile satellite service (MSS) licensees file a $5 million bond within 30 days of receiving their licensees. Non-geostationary orbit (NGSO) licensees and GSO MSS licensees were required to file a $7.5 million bond within 30 days of receiving their licensees.

In the FNPRM in this proceeding, the Commission invited comment on revising the bond amounts, and on allowing licensees to establish an escrow account as an alternative to the bond requirement. See 68 FR 51546, August 27, 2003. Also, several parties filed petitions for reconsideration, requesting elimination of the bond requirement, among other things.

In this First Order on Reconsideration and Fifth Report and Order, the Commission reaches the following conclusions: (1) The Commission rejects arguments that it should eliminate the bond requirement; (2) The Commission reduces the required bond amounts to $3 million for each GSO satellite, including GSO MSS satellites, to avoid unreasonably discouraging new or innovative satellite operators from applying for licenses; (3) The Commission also reduces the required bond amounts to $5 million for each NGSO satellite constellation; (4) The Commission does not adopt the escrow account alternative because it does not adequately meet the public policy objectives of the bond requirements; (5) The Commission defers consideration of all the non-bond-related issues in this proceeding to future Order.

Accordingly, it is ordered, that pursuant to sections 4(i), 301, 302, 303(r), 308, 309, and 310 of the Communications Act, 47 U.S.C. 154(i), 301, 302, 303(r), 308, 309, 310, and § 1.429 of the Commission's rules, 47 CFR 1.429, the petitions for reconsideration of the First Report and Order, in IB Docket No. 02-34, 68 FR 51499, August 27, 2003, are denied in part and granted in part, to the extent indicated above, and otherwise deferred to a future Order.

It is further ordered, pursuant to sections 4(i), 7(a), 303(c), 303(f), 303(g), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 157(a), 303(c), 303(f), 303(g), 303(r), that this Fifth Report and Order in IB Docket No. 02-34 is hereby ADOPTED.

It is further ordered that part 25 of the Commission's rules IS AMENDED as set forth below. These rule revisions will take effect September 20, 2004.

It is further ordered that the Consumer Information Bureau, Reference Information Center, shall send a copy of this Order, including the Final Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business Administration.

This is a synopsis of the Commission's Report and Order, MB Docket Nos. 04-113, 04-114, 04-116, 04-118, 04-119, 04-120, 04-121, 04-122, 04-123, 04-125 adopted July 28, 2004 and released July 30, 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 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).

At the request of Starboard Media Foundation, Inc., the Audio Division grants a petition requesting to reserve vacant Channel 237A at Dillsboro, North Carolina for noncommercial educational use. The reference coordinates for Channel *237A at Dillsboro are 35-15-56 North Latitude and 83-9-16 West Longitude. At the request of Starboard Media Foundation, Inc., the Audio Division grants a petition to reserve vacant Channel 264C at Berthold, North Dakota for noncommercial educational use. The reference coordinates for Channel *264C at Berthold are 48-18-54 North Latitude and 101-44-22 West Longitude. At the request of Youngshine Media, Inc., the Audio Division grants a petition requesting to reserve vacant Channel 221A at Amherst, New York for noncommercial educational use. The reference coordinates for Channel *221A at Amherst are 42-58-42 North Latitude and 78-48-0 West Longitude. At the request of Great Plains Christian Radio, Inc., the Audio Division grants a petition requesting to reserve vacant Channel 229A at Cordell, Oklahoma for noncommercial educational use. The reference coordinates for Channel *229A at Cordell are 35-17-24 North Latitude and 98-59-24 West Longitude. At the request of Great Plains Christian Radio, Inc. and University of Oklahoma, the Audio Division grants petitions requesting to reserve vacant Channel 286A at Weatherford, Oklahoma for noncommercial educational use. The reference coordinates for Channel *286A at Weatherford are 35-33-2 North Latitude and 98-43-59 West Longitude. At the request of Sister Sherry Lynn Foundation, Inc., the Audio Division grants a petition requesting to reserve vacant Channel 283A at Wynnewood, Oklahoma for noncommercial educational use. The reference coordinates for Channel *283A at Wynnewood are 34-38-42 North Latitude and 97-10-0 West Longitude. At the request of Radio Bilingue, Inc., the Audio Division grants a petition requesting to reserve vacant Channel 251C1 at Madras, Oregon for noncommercial educational use. The reference coordinates for Channel *251C1 at Madras are 44-50-2 North Latitude and 120-45-55 West Longitude.

• Docket: For access to the public docket, Internet users may access the U.S. DOT Docket Management System (DMS) facility to view or download comments received or background documents, by using the universal resource locator (URL) http://dms.dot.gov and typing the last four digits of the docket number of this rulemaking (FMCSA-98-4145); or go to the DMS facility, 400 Seventh Street, SW., (on the Plaza Level), Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday (except Federal holidays).

• You can also get an electronic copy of this document by accessing FMCSA's “Rules and Regulations” Web page at http://www.fmcsa.dot.gov; or accessing today's Federal Register from the Government Printing Office (GPO) Web page at http://www.gpoaccess.gov.

Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, 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.

The Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) requires each agency to respond to small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction.

FMCSA's emphasis on small business assistance extends to all of its headquarters and division offices. Therefore, any small business, organization, or governmental jurisdiction that has a question concerning this document may contact an FMCSA Division office in its State, or an FMCSA Service Center for its geographic area. For addresses and phone number, go to http://www.fmcsa.dot.gov/aboutus/fieldoffs; call our toll free number at 1-800-832-5660, or send a FAX to (202) 366-8842.

On June 9, 1998, the Transportation Equity Act for the 21st Century (TEA-21) (Pub. L. 105-178, 112 Stat. 107) was enacted. Section 4007 of TEA-21 amended 49 U.S.C. 31315 and 31136(e) concerning authority to grant waivers from the Federal Motor Carrier Safety Regulations (FMCSRs) to a person(s) seeking regulatory relief. Under sections 31315 and 31136(e), FMCSA may grant a waiver or exemption relieving a person from complying in whole or in part with a regulation, if the agency determines it is in the public interest and would likely achieve a level of safety equivalent to, or greater than, the level that would be achieved by complying with the safety regulation. TEA-21 also permits FMCSA to conduct pilot programs to evaluate alternatives relating to its motor carrier, commercial motor vehicle (CMV), and driver safety regulations. The use of exemptions in pilot programs is administered under strict controls, to enable collection and analysis of data and preparation of a report to Congress. TEA-21 also made a clear distinction between “waivers” and “exemptions” and specified requirements for pilot programs.

TEA-21 authorizes FMCSA to grant short-term waivers for special situations without requesting public comment, and without providing public notice. Waivers require a “public interest” finding in addition to a finding of safety. Individual waivers may only be granted to a person for a specific unique, non-emergency event, for a period up to three months.

TEA-21 directs the agency to publish notice of an exemption request in the Federal Register , announcing that a request has been filed and justification as to why the exemption is required. We must also afford the public a comment period and an opportunity to inspect the safety analysis and other relevant information. Before granting an exemption, we must publish a notice in the Federal Register and provide the name of the person or class of persons who will receive the exemption, the specific regulations from which person(s) will be exempted and the time period, and all terms and conditions of the exemption. The agency's terms and conditions must ensure that the exemption will likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved by complying with the regulation.

In addition, the agency must monitor the implementation of each exemption to ensure compliance with its terms and conditions.

Alternatively, if FMCSA denies a request for exemption, we must publish a notice in the Federal Register identifying the person who was denied the exemption and the reasons for the denial. TEA-21 permits the option of publishing a notice for each denial of an exemption, or periodically publishing notices of all denials within a given period.

The specific time limitation of an exemption is two years from the date of approval, but may be renewed.

The agency is required to immediately revoke an exemption if—

(1) The person fails to comply with the terms and conditions of the exemption;

(2) The exemption has resulted in a lower level of safety than was maintained before the exemption was granted; or

(3) Continuation of the exemption would not be consistent with the goals and objectives of the regulations issued under the authority of 49 U.S.C. chapter 313, or 49 U.S.C. 31136.

TEA-21 authorizes the agency to conduct pilot programs to evaluate alternatives to regulations relating to motor carrier, CMV, and driver safety. These programs may include exemptions from one or more regulations. FMCSA must provide detailed information regarding a pilot program through the publication of a notice in the Federal Register , including exemptions being considered, and asking for comments before the effective date of the pilot program. We must ensure that safety measures in the pilot programs are designed to achieve a level of safety that is equivalent to, or greater than, the level of safety that would be achieved through compliance with the safety regulations. Each pilot program is limited to three years from the starting date.

If a motor carrier, CMV, or driver fails to comply with the terms and conditions of the pilot program, FMCSA must immediately revoke participation by a carrier, CMV, or driver in the program. Likewise, if continuation of a pilot program is inconsistent with the safety goals and objectives of 49 U.S.C. chapter 313, or 49 U.S.C. 31136, we must immediately terminate that pilot program.

At the conclusion of a pilot program, the agency must report its findings, conclusions, and recommendations to Congress, including suggested amendments to laws and regulations that would enhance motor carrier, CMV, and driver safety and improve compliance with the FMCSRs.

On August 20, 1998, a public meeting was held at DOT headquarters to discuss various issues related to implementing section 4007 of TEA-21. By Federal Register notice, members of the public were notified of the meeting and also invited to submit written comments to the docket(63 FR 40387, July 29, 1998).

On December 8, 1998, the agency published an IFR adding Part 381 to the FMCSRs to implement section 4007 of TEA-21(63 FR 67600). The IFR explained procedures that a person must follow when requesting a waiver and applying for an exemption to the FMCSRs. The IFR also described steps to be taken by the agency when it processes requests for waivers and applications for exemptions, and considers proposals for pilot programs. The public was afforded a 60-day comment period.

We received 20 comments on the IFR. The commenters are: Advocates for Highway and Auto Safety (Advocates); American Association of Motor Vehicle Administrators(AAMVA); American Automobile Association (AAA); District of Columbia Metropolitan Police Department (Metropolitan Police); Georgetown University Law Center, Institute for Public Representation (Georgetown); Insurance Institute for Highway Safety (IIHS); International Brotherhood of Teamsters (IBT); Iowa Department of Transportation (Iowa); J. B. Hunt Transport, Inc. (J.B. Hunt); Massachusetts Department of State Police (Massachusetts); Michigan Department of State (Michigan); New Jersey Department of Transportation, Division of Motor Vehicles (New Jersey); New York State Department of Motor Vehicles (New York DMV); New York State Department of Transportation (New York DOT); Ohio Department of Public Safety (Ohio); Owner-Operator Independent Drivers Association, Inc. (OOIDA); West Virginia Department of Transportation, Division of Motor Vehicles(West Virginia); U.S. Equal Employment Opportunity Commission (EEOC); Vermont Agency of Transportation,Department of Motor Vehicles (Vermont); and, the Wisconsin Department of Transportation (Wisconsin).

The commenters were generally favorable to having regulations in the FMCSRs that concern waivers and exemptions, and pilot programs within FMCSA. However, most commenters had concerns about particular aspects of the IFR. We will discuss the comments by subject matter, followed by FMCSA's response.

Advocates argue the IFR was procedurally inadequate. They disagree with the agency's assertions that it was impracticable to publish a Notice of Proposed Rulemaking(NPRM), review the public comments, and issue a final rule prior to the statutory deadline. In essence, Advocates disagrees with the agency's reliance on the practice and procedure elements of the IFR as justification for its immediate adoption.

FMCSA Response: We believe that the agency demonstrated compelling reasons, and exercised an appropriate use of authority under the Administrative Procedure Act (APA), 5 U.S.C. 553(b), in promulgating 49 CFR Part 381. The APA permits an agency to waive the normal notice and comment requirements if the agency finds, for good cause, that it would be impracticable, unnecessary, or contrary to the public interest. Section 4007 of TEA-21 required the agency to implement regulations regarding the procedures for requesting an exemption, not later than 180 days after the date of TEA-21's enactment on June 9, 1998. Therefore, the agency determined it was impracticable to publish a NPRM, review the comments received, and publish a final rule by the statutory deadline (December 9, 1998).

Although an NPRM could have been published within the 180-day period, the agency believed it was unrealistic to assume that the rulemaking could have been completed by the statutory deadline, regardless of the number and nature of the comments. The solicitation of information through the public meeting held on August 20, 1998 was an appropriate alternative to issuing a NPRM, given the statutory deadline and the administrative nature of the rulemaking. We considered remarks by meeting participants and written comments to the docket. Therefore, considering the statutory deadline, FMCSA did provide the public a 60-day comment period in which to offer comments and suggestions on how the procedural rules should be developed to implement section 4007 of TEA-21.

Consistent with section 4007 of TEA-21, the IFR established requirements for receiving and processing waivers and exemptions, and initiating and managing pilot programs. FMCSA believes the requirements are administrative in nature and only reflect agency practice and procedure, because the IFR did not establish pass-fail criteria such as crash rates, safety ratings, compliance review results, or driving records for persons requesting waivers or applying for exemptions. For these reasons, we believe there was good cause to waive notice and comment through a NPRM.

Furthermore, FMCSA stands by a previous determination that there was good cause under 5 U.S.C. 553(d)(3) to make the IFR immediately effective upon publication. Since the IFR was published prior to the statutory deadline, delaying the effective date would have been inconsistent with implementing the statute by the deadline, or as soon as possible thereafter.

IBT argues that FMCSA does not have statutory authority.to grant waivers and exemptions from the hours of service rules under 49 U.S.C. 31502 (Requirements for Qualifications, Hours of Service, Safety, and Equipment Standards). IBT believes that authority to issue waivers and exemptions and initiate pilot programs under 49 U.S.C. Chapter 313 (CMV Operators) or 49 U.S.C. 31136 is limited.

FMCSA Response: Although the hours-of-service (HOS) regulations in 49 CFR part 395 were originally promulgated under § 204 of the Motor Carrier Act of 1935 (MCA) (now codified, in relevant part, at 49 U.S.C. 31502), these regulations were reissued by law under the Motor Carrier Safety Act of 1984 (MCSA) (now codified at 49 U.S.C. 31136). The HOS rules are therefore eligible for waivers and exemptions.

Section 206(a) of the MCSA required DOT to issue regulations ensuring, among other things, that “(2) the responsibilities imposed upon operators of CMVs do not impair their ability to operate such vehicles safely; (3) the physical condition of operators of CMVs is adequate to enable them to operate such vehicles safely; and (4) the operation of CMVs does not have deleterious effects on the physical condition of such operators” (codified, in slightly revised terms, at 49 U.S.C. 31136(A)(2)-(4)). These provisions authorize the agency to adopt HOS regulations to prevent excess on-duty and driving time from degrading drivers” ability to operate large vehicles safely.

Although DOT was generally required to complete all necessary rulemaking within 18 months after MCSA's date of enactment, § 206(e) as recodified in 1994, provides that “[i]f the Secretary does not issue regulations on CMV safety under this section, regulations on CMV safety prescribed by the Secretary before October 30, 1984, and in effect on October 30, 1984, shall be deemed in this subchapter to be regulations prescribed by the Secretary under this section” (49 U.S.C. 31136(d)).

When the FHWA, FMCSA's predecessor agency, prepared to implement § 206 of MCSA, it decided that significant changes to the HOS rules were not then required. FHWA published a final rule on May 19, 1988 (53 FR 18042) making only minor revisions to 49 CFR part 395. Because that rule was issued considerably after the 18-month deadline in section 206(e), the existing HOS rules, as amended by the May 19 rule, were and are deemed—by law pursuant to 49 U.S.C. 31136(d)—to be issued under 49 U.S.C. 31136. Recognizing this fact, the May 19 rule amended the authority citation for Part 395 to refer to the MCSA (then codified as 49 U.S.C. App. 2505,” now as 49 U.S.C. 31136) as well as the MCA (then “49 U.S.C.3102,” now 49 U.S.C. 31502).

Therefore, IBT's argument is incorrect. Because 49 U.S.C. 31315 allows waivers or exemptions of rules issued under 49 U.S.C. 31136 (or 49 U.S.C. chapter 313) and the HOS rules are issued under section 31136, FMCSA has statutory authority to grant waivers and exemptions from the HOS rules.

Many commenters identified regulations for which waivers and exemptions should not be considered. For example, Advocates requests that Parts 383 (CDL Standards), 391 (Qualifications of Drivers), 392 (Driving of CMVs), 393(Parts and Accessories Necessary For Safe Operation), 395 (Hours of Service of Drivers), 396 (Inspection, Repair, And Maintenance), and 399 (Step, Handhold, and Deck Requirements for CMVs) be removed from the list. Additionally, Advocates believes that § 390.19 (Motor carrier identification report) and § 390.21 (Marking of CMVs) should be removed as well.

OOIDA, AAMVA, Illinois, Michigan, and Ohio oppose exemptions, waivers, and pilot programs concerning Part 382 (Controlled Substances and Alcohol Use and Testing). Alternatively, OOIDA believes the agency should exclude only those sections of part 382 that provide privacy and protection for drivers required to participate in controlled substances and alcohol testing.

Illinois and Michigan oppose waivers, exemptions, or pilot programs concerning part 391 (Qualifications of Drivers). IIHS opposes inclusion of the hours-of-service rules, and West Virginia is opposed to precluding the requirements of § 390.21.

FMCSA recognizes the commenters' safety concerns. However, there is no apparent safety-related reason to change the list of regulations for which waivers and exemptions may be granted. The list of regulations in §§ 381.200, 381.300, and 381.400 is an indication that the agency will accept requests for waivers and exemptions and should not be construed as an indicator that the agency will grant waivers or exemptions which fail to satisfy the statutory requirements of TEA-21. FMCSA will review each request and waiver to ensure, to the greatest extent practicable, that they satisfy the statutory requirements. FMCSA believes it would be inappropriate to exclude safety regulations issued pursuant to 49 U.S.C. Chapter 313 and 31136 from consideration under 49 CFR Part 381. FMCSA believes doing so would suggest the agency had predetermined that it is unlikely a person could develop an alternative means of achieving the safety outcomes provided by full compliance with specific regulations. Innovation is possible, and the regulations concerning waivers, exemptions, and pilot programs should not be so limited as to preclude consideration of alternative approaches to achieving or even improving motor carrier safety.

Section 4007 of TEA-21 requires that the terms and conditions for all waivers and exemptions achieve a level of safety equivalent to or greater than what would be achieved by complying with the safety regulations. To satisfy this statutory test, persons requesting waivers or applying for exemptions must present a credible alternative to the regulation and explain how that alternative would achieve an equivalent or greater level of safety. If the request or exemption were effectively less stringent than the applicable regulation, it would be difficult to demonstrate compliance with the statutory test. If there is insufficient information or data for FMCSA to conclude that the waiver or exemption would satisfy the statutory test, the agency must not grant the waiver or exemption.

We continue to exclude the accident register requirements (§ 390.15) from the list of regulations eligible for a waiver or exemption. The agency believes it has a responsibility to monitor the crash involvement of entities operating under the terms of a waiver.

We continue to retain the Motor Carrier Identification Report (Form MCS-150) requirement under § 390.19 as one of the regulations that could be waived. The agency believes using that report to gather information on entities that have not previously operated CMVs in interstate commerce, and do not intend to do so after the waiver period expires, is of no apparent benefit. Information from Form MCS-150 will be used to create a file in the Motor Carrier Management Information System (MCMIS), a database containing safety information on interstate motor carrier compliance reviews and roadside inspection results, and CMV crashes. Entities benefiting from this action could be certain intrastate motor carriers that are not subject to State requirements to complete the MCS-150 form, and businesses or groups that rarely (except for unique, non-emergency events) operate CMVs.

Several States now require their intrastate motor carriers to complete Form MCS-150 and to obtain a USDOT identification number. These motor carriers are listed in MCMIS as intrastate-only carriers. The addition of these motor carriers to MCMIS enables States and the FMCSA to work together in determining the number of active motor carriers operating in the U.S., and to monitor their safety performance. The intrastate motor carriers subject to State requirements for completing Form MCS-150 should already have completed a Form MCS-150 prior to applying for a waiver to conduct a short-term operation in interstate commerce. At the end of the waiver period, the intrastate motor carriers would continue to be subject to State requirements. Further, since the agency will be able to identify these entities from information submitted as part of the waiver application, the submission of Form MCS-150 would be redundant.

As for exemptions, FMCSA requires intrastate motor carriers and non-motor carrier entities to complete Form MCS-150 and, under § 390.21, to mark all CMVs. We believe an entity that chooses to operate a CMV in interstate commerce for more than 3 months should be treated as an interstate motor carrier for purposes of MCMIS. Since exemptions provide regulatory relief for up to two years, and may be renewed, it is important that all CMVs operating in interstate commerce under the terms of the exemption be marked.

For exemptions granted as part of a pilot program, FMCSA uses the same list of regulations provided in § 381.300, What is an exemption? We use the same list because there is no apparent reason that participants in a pilot program for up to three years should be treated differently from interstate motor carriers required to complete Form MCS-150 and to mark their CMVs.

West Virginia believes the agency needs to define “equivalent.” As West Virginia stated:

EEOC believes the legislative history suggests the term “equivalent” is intended to “describe a reasonable expectation that safety not be compromised.” EEOC urged the agency to adopt a regulatory definition that reflects congressional intent.

Advocates disagrees with the agency's use of language in the IFR preamble to describe the “equivalent or greater safety” standard. Advocates argues the agency is precluded from granting waivers and exemptions, and conducting pilot programs on the basis of an unspecified, free-floating or ad hoc characterization of equivalent or greater safety.

FMCSA Response: We do not believe it is necessary to include a definition of “equivalent” in order to effectively implement section 4007 of TEA-21. Moreover, we agree with EEOC that the legislative history suggests the term “equivalent” is intended to describe a reasonable expectation that safety not be compromised. However, we do not believe that persons who intend to request waivers, apply for exemptions, or propose pilot programs need a regulatory definition to understand that the agency will not grant any of the above if there is reason to believe that safety will be compromised. A definition of “equivalent” would not serve as a substitute for an analysis of the potential safety impacts of a given request for a waiver, application for an exemption, or proposal for a pilot program. Furthermore, FMCSA believes that adopting a definition for “equivalent” would not increase the likelihood there will be agreement among the agency, persons seeking waivers, exemptions, or pilot programs, or interested parties as to whether the terms and conditions of a request would compromise safety. The agency is solely responsible for making the final determination based on all available information.

The interim regulations have been in effect for five years. During that time, the agency has effectively applied the standard for a reasonable expectation that waivers, exemptions, and pilot programs would not compromise safety. FMCSA believes a regulatory definition of the term “equivalent” would not provide a quantitative standard which could be used to assess all waivers, exemptions, or pilot programs. FMCSA continues to adhere to congressional intent that there is a reasonable expectation that safety would not be compromised.

Most of the State agencies and AAMVA expressed concern about the role of the States in the waiver and exemption process. As AAMVA stated:

Michigan believes the FMCSA system of notification, as described in the IFR preamble, would not ensure that all interested parties, particularly licensing, registering, and enforcing States, are kept informed and have opportunity to comment on the applicant's safety performance and specific exemption being sought. Michigan argues States need to know details about when, why, and how waivers, exemptions, and pilot programs prior to being implemented.

West Virginia emphasized the importance of communication between FMCSA and the States. West Virginia believes open and timely communication provides an opportunity for “fair and adequate consideration of all partners' ideas and concepts.”

New Jersey, Vermont, and New York DOT and DMV also expressed concern that States have an opportunity to learn of any proposal prior to FMCSA approval, so that they have an opportunity to understand, comment, and react appropriately.

FMCSA Response: FMCSA is committed to its safety partnership with State agencies. State agencies play a vital role ensuring the safe operation of CMVs in the U.S. However, the agency does not plan to provide States with pre-notification of its decisions on waiver requests, exemption applications, pilot program proposals, nor engage in discussions or deliberations with State agencies about these matters, in a forum that is not open to public participation. Such actions would be inconsistent with the principles of the Administrative Procedure Act (5 U.S.C. 551 et. seq. ). Discussions or deliberations between agency personnel and third parties that are intended to influence agency decisions, should be transparent. Limiting opportunity for comment to certain parties, while intentionally excluding all other interested parties, would be inappropriate.

FMCSA continues to work with State agencies to ensure adequate notification of its decisions when the information is first made available to the general public. We continue to seek public comment on applications for exemptions and proposals for pilot programs through notice in the Federal Register . The notice-and-comment procedure is in the public interest, so that all interested parties have an equal opportunity to comment.

FMCSA does not expect State agencies to bear responsibility for implementing section 4007 of TEA-21. We welcome State participation, to the extent States have resources to assist FMCSA in monitoring the safety performance of persons who are granted waivers or exemptions, or are allowed to participate in pilot programs.

As for FMCSA decisions to grant waivers and exemptions, or initiate pilot programs, the agency neither requires nor requests States to adopt compatible regulations, or to abandon more stringent safety regulations. First, the scope of waivers, exemptions and pilot programs is usually very limited in terms of the specific requirements for which alternative approaches to achieving safety are being considered. Second, the population of motor carriers and drivers is limited, usually through eligibility criteria for exemptions and pilot programs. In the case of waivers, the statutory requirement that waivers be issued only for non-emergency and unique events, and be limited in scope and circumstances, suggests that there will not be a large population of drivers or carriers covered by waivers at any given time. Given the statutory constraints, it is unlikely the agency would grant a waiver or exemption, or initiate a pilot program so broad in scope that States would be forced to amend or revise laws or regulations to accommodate those carriers and drivers covered by the waiver, exemption, or pilot program.

As 49 U.S.C. 31315(d) provides, no State shall enforce any law or regulation that conflicts with or is inconsistent with a waiver, exemption, or pilot program while the waiver, exemption or pilot program is in effect. Therefore, preemption of State rules applies only with respect to persons operating under a waiver or exemption, or participating in a pilot program. This means all motor carriers and drivers not operating under a waiver or exemption, or participating in a pilot program, must continue complying with all applicable State laws and regulations. Amending or revising State laws or regulations would be impractical, since such amendment or revision would be limited to drivers or carriers operating under waiver, exemption, or pilot programs only. To amend or revise State motor carrier safety laws or regulations that result in less stringent requirements than the applicable FMCSRs would be inconsistent with the Motor Carrier Safety Assistance Program (MCSAP) regulations, and, in some cases, would subject such rules to preemption pursuant to 49 U.S.C. 31141(c)(3). The agency's MCSAP regulations (49 CFR Part 350) concern eligibility for Federal funding to support State motor carrier safety programs.

Iowa believes the regulations should explicitly require that persons granted a waiver must carry documentation issued by the FMCSA and provide the documentation to State officials during any traffic stop or roadside inspection. Vermont requests that paperwork concerning the waiver or exemption be with the driver or carrier and available for review during roadside inspections. OOIDA believes it is important to adopt procedures and generate documentation for each waiver, exemption, or pilot program granted, so that carriers and drivers can be expeditiously identified to Federal and State enforcement officials as participants in a Federal program that exempts them from Federal and conflicting State motor carrier safety regulations.

FMCSA Response: FMCSA agrees with the commenters. We usually require persons operating under the terms and conditions of waivers, exemptions, or pilot programs to carry copies of FMCSA-issued documents to identify them as such. The only exceptions to date have been exemptions granted to motor carriers operating certain vehicles manufactured by the Ford Motor Company (Ford) and General Motors Corporation (GM), concerning fuel tank fill rates and certification labels on fuel tanks. 1 In those cases, the agency published information about the make, model and vehicle identification numbers (VINs) of the vehicles covered by the exemption. Since the vehicle manufacturers applied for the exemption on behalf of the customers operating the vehicles, developing a list of all vehicles and motor carriers operating these vehicles was unnecessary, given the nature of the exemption. FMCSA concluded that use of the make, model, and range of VINs was sufficient for enforcement personnel to determine whether a given vehicle was covered by the exemption.

Several commenters discussed the use of exemptions and pilot programs for driver physical qualifications. As EEOC stated:

J.B. Hunt recommends that pilot programs should be initiated to allow motor carriers to investigate whether more stringent medical standards could improve public safety.

Georgetown believes several of the physical standards, in particular hearing and vision, are discriminatory and violate the government's obligations under section 504 of the Rehabilitation Act. Georgetown recommends the agency should continue to reexamine those standards and revise them based on data concerning the safety of drivers who are monocular or whose hearing does not meet existing standards.

Additionally, Georgetown believes that the waivers, exemptions, and pilot program regulations do not provide adequate guidance for a driver with a disability, who seeks to establish he or she meets the requirements for an exemption. Georgetown argues that an individual driver seeking an exemption from part 391 will have no idea what to provide the agency. Georgetown also argues that the procedures in Part 381 are inappropriate, since detailed procedures for persons seeking exemptions from the vision standard has been established. Georgetown believes the agency should fully disclose the vision exemption process.

FMCSA Response: We believe part 381 provides adequate guidance for motor carriers and drivers who are interested in pursuing a waiver, exemption, or pilot program concerning physical qualifications for drivers. Since the physical qualifications rules concern medical issues that require an individualized assessment by qualified medical professionals, developing a one-size-fits-all set of procedures for the range of medical conditions which a waiver, exemption, or pilot program may be requested would be impractical.

As to whether generic guidance for specific categories of physical qualifications issues can be developed, the agency has initiated programs to accommodate persons with conditions covered by those categories. For example, the agency has a vision exemption program for drivers with an eye that fails to meet current vision standards. Interested persons need only contact the agency for detailed guidance on how to apply for an exemption. On September 3, 2003 (68 FR 52441), FMCSA published a notice of final determination to begin an exemption program for insulin dependant diabetic drivers. The notice provides the eligibility criteria for drivers who intend to apply for a diabetes exemption. The notice also provides instructions on how to obtain additional information needed to apply for the exemption. The physical qualifications process is intended to ensure that each driver is given individual attention and guidance based on his or her medical circumstances. FMCSA believes this is the most effective manner to assist drivers, and to ensure that each exemption granted achieves a level of safety equivalent to, or greater than, the level of safety that would be achieved through full compliance with the physical qualifications rules under part 391.

J.B. Hunt commented on employers having the opportunity to explore more stringent physical qualifications as a means of improving safety. The FMCSRs do not prohibit motor carriers from establishing policies that are more stringent than the safety regulations (49 CFR 390.3(d). Therefore, employers wanting to establish more stringent medical examination procedures and pass-fail criteria may do so without requesting a waiver, applying for an exemption, or proposing a pilot program.

According to Advocates, the agency's procedures for administering waivers are insufficient to ensure both public awareness and safety. Advocates argues the agency has a responsibility to notify the public when a waiver from specific parts of the FMCSRs has been awarded, identify the carriers or drivers awarded the waiver, the waiver period, the public interest finding by the agency, and the finding that the waiver is likely to achieve a level of safety that is equivalent to, or greater than, the level of safety that would be obtained in the absence of the waiver.

IBT noted the public should be informed of the agency's disposition of waiver requests promptly after a decision is made.

AAA also believes it is important for the agency to communicate with the public about waivers, including publishing a notice in the Federal Register for waivers that have been granted or denied.

FMCSA Response: FMCSA understands commenters' intent to make information about waivers readily available to the public. Nevertheless, we believe there would not be much public benefit associated with the effort. FMCSA receives a small number of requests for waivers each year, and only a few of those have been granted. There is no discernible public benefit to using limited agency resources to manage a public docket on requests for waivers which, if granted, are limited to no more than three months in duration. Depending on the specific event, waivers may cover a period as short as a few hours. Also, the scope of each waiver is likely to be unique and cover a small number of drivers or motor carriers.

Given the statutory constraints for granting waivers, the specific nature of waivers, and the relatively small number granted, FMCSA does not plan to publish decisions on waivers.

Advocates disagrees with the agency's decision to avoid additional roadside inspections and compliance reviews of carriers or commercial drivers receiving waivers or exemptions. As Advocates stated:

FMCSA Response: FMCSA agrees with Advocates that granting exemptions with terms and conditions would not, by itself, satisfy the agency's obligations to monitor the safety performance of persons granted exemptions or allowed to participate in pilot programs. However, Advocates characterization of the agency's oversight of waivers, exemptions, and pilot programs does not accurately portray how the agency handles its responsibilities. FMCSA provides an appropriate level of safety oversight for all exemptions granted, which includes the Home Heating Oil Pilot Program (July 13, 2001; 66 FR 36823), 2 the only pilot program initiated since implementation of section 4007 of TEA-21. Oversight consists of reviewing roadside inspection and crash data, driving records for participating drivers, and all information that exemption grantees and pilot program participants are required to submit to the agency during the period the exemption or pilot program is in effect. FMCSA may exercise its statutory authority under 49 U.S.C. 506 to begin an investigation any time there is reason to believe there are violations of the safety regulations, or of the terms and conditions of a waiver, exemption, or pilot program. Furthermore, 49 U.S.C. 31315(b)(2) requires FMCSA to immediately revoke an exemption if: (1) The person fails to comply with the terms and conditions of the exemption, (2) the exemption has resulted in a lower level of safety than was maintained before the exemption was granted, or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. Chapter 313 or 49 U.S.C. 31136. Section 31315(c)(3) provides similar authority for revocation of participation of a motor carrier, commercial motor vehicle, or driver for failure to comply with the terms and conditions of the pilot program, or if continued participation would not be consistent with the goals and objectives of 49 U.S.C. Chapter 313 or 49 U.S.C. 31136.

FMCSA has granted 910 vision exemptions since 1998. As a result of the agency's on-going monitoring activities, 19 exemptions were revoked for bad driving (the drivers contributed to accidents, had their licenses suspended or revoked, or received an excessive number of moving violations), and 11 were canceled for failure to submit required information. In addition, 20 drivers were denied renewals after the first two-year period because their driving records did not meet the safety level required by the statute (equivalent to, or better than, the level of safety that would be achieved by complying with the regulations).

FMCSA believes it has the tools to effectively monitor persons operating under the terms and conditions of a waiver or exemption, or participating in a pilot program, and to take appropriate action for failure to comply with the requirements of the program. However, FMCSA does not believe motor carriers, CMVs, or drivers should be subjected to additional inspections or audits solely because a waiver or exemption has been granted, or participation in a pilot program has been approved. We believe the incentives for implementing innovative approaches to achieving safety performance goals would be overshadowed if the flexibility provided by the waiver, exemption or pilot program were coupled with more rigorous or frequent enforcement activities. We believe using Federal and State resources to conduct more frequent inspections and audits could adversely impact enforcement programs intended to identify and remove from service unsafe CMVs and drivers, as well as the resources used to target motor carriers that have demonstrated poor safety performance. Enforcement resources should be targeted at those motor carriers, drivers and vehicles that are most likely to pose a safety risk, not at potentially discouraging private-sector efforts to explore innovative approaches to achieving safety performance goals.

FMCSA has not made any changes to its interim regulations based on the comments. On October 1, 2001, FMCSA made technical amendments to the interim regulations in Part 381 to remove references to the Federal Highway Administration, the Office of Motor Carrier and Highway Safety, and the Office of Motor Carrier Research and Standards (66 FR 4986, 49872). Part 381 remains divided into six subparts:

Subpart A—General describes the purpose and applicability of part 381, and defines certain terms used throughout the part;

Subpart B—Procedures for Requesting Waivers provides a plain-language description of waivers, the procedures for requesting a waiver and the process FMCSA will use to review waiver requests;

Subpart C—Procedures for Applying for Exemptions provides a plain-language description of exemptions, the procedures for applying for an exemption, the process FMCSA will use to review exemption applications, and the conditions under which FMCSA will revoke an exemption;

Subpart D—Initiation of Pilot Programs explains how pilot programs operate, and how a pilot program can be initiated (which includes a detailed list of information FMCSA requests from individuals who would like to recommend that the agency start a pilot program);

Subpart E—Administration of Pilot Programs codifies in the FMCSRs a plain-language version of the statutory requirements concerning FMCSA's administration of pilot programs so that all interested parties will have a convenient reference; and

Subpart F—Preemption of State Rules codifies in the FMCSRs a plain-language version of the Federal preemption of any State law and regulation that conflicts with or is inconsistent with respect to a person operating under a waiver, exemption, or pilot program.

In accordance with section 4007 of TEA-21, FMCSA is authorized to grant waivers and exemptions from any FMCSRs under statutory authority of 49 U.S.C. 31136 and chapter 313. However, section 4007 of TEA-21 does not authorize FMCSA to grant waivers and exemptions from regulations issued under other statutes. For example, the financial responsibility regulations at 49 CFR part 387, which were issued under 49 U.S.C. 31138 and 31139, pertain to transportation of passengers and property, respectively. FMCSA also does not have authority to grant waivers and exemptions from other requirements such as surety bonds and policies of insurance for motor carriers and property brokers, and surety bonds and policies of insurance for freight forwarders. These requirements, which were transferred from the former ICC, are now codified at 49 CFR part 387. These requirements are based on statutory authority at 49 U.S.C. 13101, 13301, 13906, and 14701.

In another example, FMCSA does not have authority to grant a waiver or exemption from 49 CFR 396.25,Qualifications of Brake Inspectors. This regulation establishes minimum qualifications for motor carrier employees responsible for the inspection, repair, and maintenance of CMV brake systems, and was required by the Truck and Bus Safety and Regulatory Reform Act of 1988 (49 U.S.C. 31137(b)).

To assist the motor carrier industry and the general public in identifying the requirements for which waivers and exemptions may be granted, FMCSA is retaining the list in §§ 381.200, 381.300, and 381.400 which define a waiver, exemption, and pilot program, respectively. The list of regulations for which a waiver or exemption could be granted includes:

(1) Part 382 Controlled Substances and Alcohol Use and Testing;

(2) Part 383 Commercial Driver's License Standards; Requirements and Penalties;

(3) § 390.19 Motor Carrier Identification Report;

(4) § 390.21 Marking of Commercial Motor Vehicles;

(5) Part 391 Qualifications of Drivers;

(6) Part 392 Driving of Commercial Motor Vehicles;

(7) Part 393 Parts and Accessories Necessary for Safe Operation;

(8) Part 395 Hours of Service of Drivers;

(9) Part 396 Inspection, Repair, and Maintenance (except § 396.25); and

(10) Part 399 Step, Handhold, and Deck Requirements.

FMCSA excluded the accident register requirements, 49 CFR 390.15, from the list of regulations eligible for a waiver or exemption because the agency believes it has a responsibility to monitor the crash involvement of entities operating under the terms of a waiver.

FMCSA retains the motor carrier identification report(Form MCS-150) requirement at 49 CFR 390.19 as one of the rules that may be waived. We continue to believe there is no apparent benefit to gathering information on entities that have not previously operated CMVs in interstate commerce and do not intend to do so after the term of the waiver expires.

For exemptions, FMCSA requires intrastate motor carriers and non-motor carrier entities to complete Form MCS-150 (§ 390.19), and to mark all CMVs (§ 390.21) operating in interstate commerce under the terms of the exemption because exemptions provide regulatory relief for up to two years, and may be renewed.

Requests for a waiver or applications for exemption should be addressed or hand-carried to the Administrator of the FMCSA. Such requests or applications need not be in any particular form, but should be typed or clearly hand-printed and include basic information, such as the identity of the person to be covered by the waiver or exemption, the name of the motor carrier or other entity responsible for using or operating CMVs during the waiver or exemption time period, and the motor carrier or other entity's principal place of business. The request or application should include a statement of: The event or CMV operation for which the waiver or exemption will be used; justification as to why the waiver or exemption is required; the regulation from which the applicant is requesting relief; estimates of the total number of drivers and CMVs that will be operated under the terms and conditions of the waiver or exemption; and an explanation of how the recipient of the waiver or exemption would ensure that a level of safety would be achieved that is equivalent to, or greater than, the level of safety that would be obtained by complying with the regulation. As for exemption applications, the written request must also include an assessment of the safety impacts the exemption may have, such as the impacts that would be experienced if the exemption is not granted, and include a copy of all research reports, technical papers, and other publications and documents referenced in the application.

The complete list of information to be included in the requests for waivers and applications for exemptions is provided in § 381.210, How do I request a waiver?, and § 381.310, How do I apply for an exemption?. These requirements are consistent with the statutory language in TEA-21.

The Office of Policy and Program Development is responsible for reviewing waiver requests and making recommendations to the Administrator. A copy of the decision signed by the Administrator will be sent to the applicant. It will include the terms and conditions of the waiver, or the reason(s) for denial of the waiver.

The review process for exemption applications differs because of the requirements in section 4007 of TEA-21. The Office of Policy and Program Development reviews exemption applications. After FMCSA reviews an application for completeness, we will publish a notice in the Federal Register requesting public comments regarding the application. After the comments are reviewed, the Office of Policy and Program Development will make a recommendation to the Administrator. Thereafter, FMCSA will publish a final notice of determination in the Federal Register .

Although TEA-21 does not require FMCSA to develop regulations concerning pilot programs, we are retaining, in subparts D and E of part 381, information describing how to propose a pilot program, and statutory requirements for managing a pilot program. FMCSA believes that including information about pilot programs in the FMCSRs provides a more convenient reference to the motor carrier industry and the general public than does Title 49 of the United States Code. The regulations indicate that FMCSA has authority to initiate pilot programs after publishing notice and providing opportunity for public comment. They also indicate the types of information that interested parties should submit to the agency, if they would like to recommend a pilot program. The information presented in subpart E of part 381 is intended to be a plain-language version of the statutory requirements for the administration of pilot programs.

Section 4007(d) of TEA-21 indicates that during the time period that a waiver, exemption, or pilot program is in effect, no State shall enforce a law or regulation that conflicts with or is inconsistent with the waiver, exemption, or pilot program. FMCSA is retaining the preemption language in part 381, and will also include the language in the waiver documents and Federal Register notices concerning exemptions and pilot programs. The agency continues to believe this approach will ensure that State officials are notified about the Federal preemption authority. Including such language in the waiver, and in the exemption and pilot program notices, will enable motor carriers to present inspectors with one document which informs them of the terms and conditions of the waiver, exemption, or pilot program. This document will also advise the inspectors that State laws and regulations that conflict with the waiver, exemption or pilot program are automatically preempted, and the duration of the preemption.

This action is not a significant regulatory action within the meaning of Executive Order 12866, or significant within the meaning of the U.S. Department of Transportation's regulatory policies and procedures. This action adopts as final, interim regulations contained in 49 CFR part 381, concerning rules and procedures for handling requests for waivers and applications for exemptions, and the initiation and administration of pilot programs. These rules will help promote increased cooperation between the private sector and the government by providing a mechanism for exploring alternatives to certain safety regulations, while ensuring a level of safety equivalent to, or greater than, the level obtained through compliance with the regulations. We believe adopting the interim regulations at part 381 will result in incremental, although not substantial, economic benefits in cases where the alternatives provide a more cost-effective approach to ensuring motor carrier safety. FMCSA believes the economic impact of this final rule to be minimal. Comments were requested on this subject in the IFR, but none were received. Therefore, a full regulatory evaluation is not required.

In compliance with the Regulatory Flexibility Act (5 U.S.C. 601 et seq. , as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), we evaluated the effects of this final rule on small entities and determined that it does not have a significant economic impact on a substantial number of small entities. As discussed in the section above, this rule adopts interim regulations concerning requests for waivers, applications for exemptions from the FMCSRs, and the initiation and administration of pilot programs. The provisions concerning waivers and exemptions will be especially beneficial to small entities, since these entities may be more in need of regulatory relief than larger companies. The regulations were written in question-and-answer format using plain language to help ensure that small entities understand how to request a waiver and apply for an exemption, and how the agency will handle such requests and applications. The provisions concerning pilot programs are likely to be less beneficial to small entities. Pilot programs would generally require a large number of participating motor carriers and drivers willing to operate under identical terms and conditions. By contrast, waivers and exemptions may be carrier- or driver-specific and therefore better suited to the needs of small entities. As with the IFR, this final rule does not require small entities to take any actions unless they request a waiver, apply for an exemption, or participate in a pilot program. The information that would be required for a waiver or an exemption has been kept to a minimum. For this reason, FMCSA certifies this final action will not have a significant economic impact on a substantial number of small entities.

The Paperwork Reduction Act of 1995 [44 U.S.C. 3501 et seq. ] does not apply, because this final rule does not contain information collection requirements subject to Office of Management and Budget (OMB) approval. However, waivers, exemptions, and pilot programs include certain information collection requirements as part of the terms and conditions for the regulatory relief granted. In addition, the agency is required by section 4007 of TEA-21 to monitor the implementation of exemptions to ensure compliance with the terms and conditions, and to ensure sufficient recordkeeping by participants in pilot programs to facilitate the collection and analysis of data. Therefore, FMCSA will consider the information collection requirements for any special recordkeeping requirements associated with the waiver, exemption, or pilot program, and, if necessary, request approval from OMB.

The agency has analyzed this action for the purpose of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq. ). We have determined under our environmental procedures Order 5610.1, published on March 1, 2004, that this action is categorically excluded (CE) under Appendix 2, paragraph 6(b.) of the Order from further environmental documentation. This CE relates to regulations describing FMCSA's procedures that persons applying for a waiver, requesting an exemption, and proposing a pilot program must follow. The regulations also explain what procedures FMCSA will use to evaluate the waiver application, exemption request, or proposed pilot program, including notifying the public, for the purpose of ensuring transportation safety. In addition, the agency has determined that the action includes no extraordinary circumstances that would have any effect on the quality of the environment. Thus, the action does not require an environmental impact statement.

We have also analyzed this action under the Clean Air Act, as amended (CAA) section 176(c), (42 U.S.C. 7401 et seq. ) and implementing regulations promulgated by the Environmental Protection Agency. We have determined that approval of this action is exempt from the CAA's General Conformity requirement since it pertains only to requirements persons must follow to request waivers and exemptions from the FMCSRs, and sets forth procedures the FMCSA will use to process these requests for waivers, applications for exemptions and those to initiate pilot programs. We also determined that this action 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 minimum emission threshold levels. Moreover, it is reasonably foreseeable that the rule will not increase total commercial motor vehicle mileage, change the routing of commercial motor vehicles, how commercial motor vehicles operate or the commercial motor vehicle fleet-mix of motor carriers.

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

Title II of the Unfunded Mandates Reform Act of 1995 requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final rule that may result in an expenditure of $100 million or more (adjusted annually for inflation) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector. This final rule does not contain such a mandate, and the requirements of Title II do not apply.

We reviewed this rule under Executive Order 12988, Civil Justice Reform, and determined it meets applicable standards to minimize litigation, eliminate ambiguity, and reduce burden.

We analyzed this rule under Executive Order 13045, Protection of Children From Environmental Health Risks and Safety Risks. This rule is not economically significant and does not concern an environmental risk to the health or safety of children.

FMCSA certifies that this rule will not affect a taking of private property or otherwise involve taking implications, under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

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

FMCSA has analyzed this final rule in accordance with the principles and criteria contained in Executive Order 13132 (Federalism). We have determined that this rule does not have a substantial direct effect on States, nor would it limit the policymaking discretion of the States. Nothing in this document preempts any State law or regulation.

Although the rule itself does not preempt State and local laws and regulations, the waivers and exemptions that could be granted under the authority of 49 U.S.C. 31136(e) and 31315 would preempt such laws or regulations, if they conflict with or are inconsistent with the terms and conditions of the waivers or exemptions. Also, exemptions granted as part of a pilot program would preempt State and local laws and regulations which conflict with or are inconsistent with the terms and conditions of the pilot program.

FMCSA will consider the preemptive effect of each waiver prior to granting the waiver. With regard to exemptions and pilot programs, State and local governments will have the opportunity to respond to the Federal Register notices required by section 4007 of TEA-21 and inform FMCSA of concerns about preemption during the time period that an exemption or pilot program would be in effect.

Federal Motor Vehicle Safety Standard (FMVSS) No. 208, Occupant crash protection, specifies performance requirements for the protection of vehicle occupants in crashes (49 CFR 571.208). On May 12, 2000, we published an interim final rule that amended FMVSS No. 208 to require advanced air bags (65 FR 30680: Docket No. NHTSA 00-7013; Notice 1) (Advanced Air Bag Rule). Among other things, the rule addressed the risk of serious air bag-induced injuries, particularly for small women and young children, and amended FMVSS No. 208 to require that future air bags be designed to minimize such risk. The Advanced Air Bag Rule established a rigid barrier crash test with a 5th percentile adult female test dummy, as well as several low risk deployment and out-of-position tests using a range of dummy sizes.

The agency received multiple petitions for reconsideration to the Advanced Air Bag Rule. Petitioners raised a large number of concerns about the various test procedures in their written submissions. To address these issues adequately, the agency held a technical workshop so that we could better understand the specific concerns and better determine if the test procedures needed refinement. 1 The agency then addressed each petition in a Federal Register notice published on December 18, 2001 and made several changes to the Advanced Air Bag Rule (66 FR 65376; Docket No. NHTSA 01-11110). These changes included a number of refinements to the test dummy positioning procedures in the barrier tests and the low risk deployment tests. The December 2001 final rule also amended the list of child restraint systems in Appendix A for use in certain compliance tests through the removal of child restraints no longer in production and the addition of other child restraints.

On November 19, 2003, the agency published a final rule that responded, in part, to petitions for reconsideration of the amendments made in the December 2001 final rule to the Advanced Air Bag Rule (68 FR 65179; Docket No. NHTSA 03-16476, Notice 1). In particular, we amended portions of FMVSS No. 208 regarding seat positioning procedures when using the 5th percentile adult female test dummy in the barrier test and the low risk deployment test and when using the 3-year-old and 6-year-old test dummies in the low risk deployment test; the fore and aft seat location for rear facing child restraint systems (RFCRSs); and the seat track position for the low risk deployment test. We also responded to petitions for reconsideration regarding test dummy positioning procedure issues, specifically those addressing positioning of the feet of the 5th percentile adult female test dummy; positioning of out-of-position test dummies; and positioning of test dummy hands. The November 2003 final rule amended the definitions of “Plane C” and “Plane D” as they relate to test dummy positioning, Point 1 under the low risk deployment tests, and addressed other reference points and definitions. The November 2003 final rule also amended the list of child restraint systems in Appendix A to be used in certain compliance testing.

In response to the November 2003 final rule, the agency received seven petitions for reconsideration. Petitions were submitted by Evenflo Company, Inc. (Evenflo), Maserati S.p.A. (Maserati), Alliance of Automobile Manufacturers (Alliance), TRW Automotive (TRW), Automotive Occupant Restraint Council (AORC), and American Honda Motor Co., Inc. (Honda). A petition was also received from Ferrari S.p.A. (Ferrari), but was later withdrawn without a subsequent submission. Petitioners have asked the agency to reconsider the following issues.

Honda petitioned the agency to permit positioning of the left foot of the 5th percentile adult female test dummy on a vehicle's footrest, a position, it stated, that is more representative of a “real world” configuration. Honda explained that in some situations, the current procedure for positioning the left foot may still result in a portion of the left foot remaining on a vehicle's footrest or sloping part of the floorpan near the foot rest. The petitioner stated that such a position could influence measured injury criteria.

In its petition for reconsideration, the Alliance stated that right foot positioning procedure for the 5th percentile adult female test dummy in the rigid barrier test could result in an unrealistic position. The Alliance explained that under the procedures in S16.3.2.2.1(a) and S16.3.2.2.3 of FMVSS No. 208, a test dummy's foot can be positioned such that it does not contact either the floor or toe boards, necessitating the use of a spacer block. It further stated that such a position is unrealistic and could affect the foot and lower leg kinematics. To address this issue, the Alliance requested the procedure be amended to reflect a more “real-world” position. In the alternative, the Alliance requested that the agency specify the material properties of the spacer block in order to reduce potential test variability.

The Alliance and Honda requested that the agency amend the chin-on-rim test procedure to provide for consistency and repeatability in testing out-of-position drivers. The Alliance requested that for vehicle models with adjustable and non-adjustable steering wheels, the adjustable steering wheel be positioned as close as possible to the position of the non-adjustable steering wheel. Honda requested that the agency specify the shape of the spacer blocks that are to be used when needed to position the dummy's chin on the steering wheel. Honda stated that the pre-test load applied to the neck can vary with the shape of the spacer blocks.

Honda petitioned the agency to permit rotation of the lower legs when positioning the head of the six-year-old dummy on the instrument panel in order to prevent bracing by the feet on the vehicle floor. Honda stated that this bracing prevents the torso from being rotated into position.

Honda also requested that spacer blocks be permitted when space is present between the six-year-old dummy's feet and the vehicle floor. Honda stated that variation in the position of the feet due to lack of contact with the floor results in variation in the force required to maintain the thigh angle. Again with regard to the six-year-old dummy, Honda requested that the head-on-instrument panel test procedure specify the point and direction for applying the 222 N force to prevent differences in dummy position.

The AORC and Maserati petitioned the agency to revert to the method established in the December 2001 final rule for defining Planes C and D. In the alternative, Maserati, along with the Alliance, requested clarification of the procedure for determining the volumetric centers of an uninflated and statically inflated air bag, which are used to define Planes C and D. Maserati stated that the new definition of Plane C may alter the positioning of the dummy in low risk deployment testing by 50 mm and that the effect of this altered position on compliance is unknown at this time. Similarly, the Alliance stated that one of its members has reported that the redefined Plane C may alter the positioning of the dummy by 30 mm.

Evenflo and TRW have requested that Appendix A be amended to reflect child restraint systems (CRSs) currently manufactured and available for retail purchase. Evenflo stated that several of the discontinued CRS models in Appendix A are no longer available. TRW alternatively petitioned the agency to create a separate Appendix to indicate which CRSs will be used in testing beyond 2006. To facilitate the use of automatic suppression systems based on weight detection, Honda petitioned the agency to limit the weight of CRSs. Honda also petitioned the agency to permit 18 months of lead time for the amended Appendix A.

The Alliance requested that the agency develop a procedure for installing CRSs equipped with lower anchorages and tether attachments. The Alliance stated that artificially tight installations can cause some occupant classification systems to misclassify the occupant. The Alliance also requested that the effective date for the revised Appendix A be postponed until September 1, 2005.

The Alliance has requested that the agency specify a vertical seat position for use in determining the seat cushion reference angle. Specifically, the Alliance requested that the seat be positioned in the full rear and full down position when determining the seat cushion reference angle. The Alliance also requested that S16.2.10.3.2 and S16.2.10.3.3 of FMVSS No. 208 be amended to specify that the reference point used in these sections is the seat cushion reference point.

Several petitioners stated that the January 20, 2004 effective date for the test procedures established in the November 2003 final rule did not provide sufficient lead time. There was concern that the revisions, particularly to the procedure for defining of Planes C and D, would require mid-model year recertification.

In response to petitioners' concerns with the effective date for the new procedures the agency published a final rule January 27, 2004, which permits manufacturers to temporarily certify vehicles according to the test procedures required prior to the effective date of the November 2003 final rule until September 1, 2004 (69 FR 3837; Docket No. 03-16476; Notice 2). Today's document addresses the remaining issues.

As previously noted, this document addresses the following issues raised in the petitions for reconsideration: issues involving dummy positioning procedures, target points referencing Plane C and Plane D, issues associated with the child restraints specified in Appendix A of FMVSS No. 208, and corrections to the regulatory text.

This document amends the procedure for placement of the left foot of the 5th percentile adult female test dummy in the barrier crash. As amended, the procedure specifies that both outboard and inboard hip rotation is permitted to avoid foot contact with a vehicle's footrest or pedal. We are maintaining the positioning procedure established for the 5th percentile adult female test dummy's right foot, and decline to establish material specifications for the spacer blocks permitted under this positioning procedure. Further, we decline to establish material, shape, or size specifications for spacer blocks permitted under the chin on rim low risk deployment test procedure.

We are amending the dummy positioning procedure for the head-on-instrument panel low risk deployment test. The procedure is amended to provide greater flexibility in positioning the 6-year-old and 3-year-old test dummies. We are also clarifying the direction of the application of force used to position the test dummies.

The agency is maintaining the current methods for determining Planes C and D, which reference an axis based on the volumetric centers of an undeployed and statically inflated air bag.

We are also maintaining Appendix A as established in the November 2003 final rule. However, we are amending the effective date of Subpart C for testing with CRSs equipped with lower anchor attachments and a tether strap (LATCH) to specify that these restraints need not be tested prior to September 1, 2006.

Additionally, we are making several amendments to provide consistency within the regulation with regards to incorporated procedures and terminology.

In response to the petition from Honda, we are amending the procedure for placement of the left foot of the 5th percentile adult female test dummy in the barrier crash to permit hip rotation to both the inboard and the outboard. This will help address Honda's concern that the left foot may have a position that is partially on the footrest. While this amendment should assist in avoiding this partial contact, we recognize that there may be instances in which partial footrest contact is unavoidable.

The December 2001 final rule amended the driver's left foot positioning requirement by stipulating that the foot must not be placed on a vehicle's footrest, wheel-well projection, clutch, brake, or accelerator pedal. In response to petitions, the agency provided additional positioning flexibility so that pedal and footrest avoidance would be possible. S16.3.2.2.6, which specifies positioning procedures to avoid undesirable foot contact, was amended to permit foot flexion at the ankle in conjunction with the previously permitted foot rotation and hip rotation. The agency also provided guidance on the priority for dummy adjustment in avoiding prohibited contact.

The agency is unsure why Honda was unable to avoid footrest contact using the procedure provided. The petitioner did not provide details as to why contact occurred. However, we believe it may have been due to the restriction in S16.3.2.2.6(c) that hip rotation must be to the outboard. The restriction on hip rotation was originally established when only pedal contact by the left foot was to be avoided. It was not the agency's intent to restrict hip rotation to the outboard only. Accordingly, we are amending the procedure to permit rotation to both the outboard and the inboard. This should address Honda's concern that the test dummy's left foot can have a position that is partially on the footrest. We are also amending the procedure to clarify that repositioning of the leg to avoid pedal and footrest contact is applicable to S16.3.2.2.4, S16.3.2.2.5 and S16.3.2.2.6.

We are denying Honda's petition to permit placement of the left foot on the footrest. The agency has previously addressed this issue in the November 2003 final rule when establishing the current procedures. Honda has not provided any additional information to justify our reaching a different conclusion now. Although the positioning procedure allows partial footrest contact, this should arise if the only way to avoid pedal contact is footrest contact. Again, as we stated in the November 2003 final rule, we believe this conflict will be rare. In addition, placement of the entire foot on the footrest in some vehicle designs may be unnatural or impossible to achieve. Further, we have no data that indicate variations in foot positioning significantly affects injury measurements.

The agency is maintaining the positioning procedure for the right foot of the 5th percentile adult female test dummy as currently specified for the barrier test under the November 2003 final rule. In response to a petition for reconsideration and a request for information, we previously amended the right foot positioning procedure for the 5th percentile adult female test dummy in the rigid barrier test. The November 2003 final rule addressed the situation in which the right heel of the 5th percentile adult female test dummy cannot initially contact the vehicle floor, by allowing for the extension of the lower leg toward the accelerator pedal rather than leaving the leg hanging vertically. If the heel can initially contact the floor, but cannot maintain contact with the floor and reach the accelerator pedal, lower leg extension with the heel leaving the floor is also the preferred position. If the final position results in the heel being off the floor, FMVSS No. 208 permits the use of a spacer block to provide support. Figure 13 in FMVSS No. 208 provides the block dimensions.

The November 2003 final rule stated that lowering the seat is not an acceptable solution for getting the test dummy's right foot to reach the floor. The agency believes that the procedure established in the November 2003 final rule is the most appropriate, and notes that the Alliance submitted additional comments withdrawing its concern that the positioning was potentially unrealistic. Further, the agency declines to specify the material properties of the spacer block. We do not have reason to believe that the material used for the spacer block will affect injury measurements when a vehicle is subjected to a barrier test with a 5th percentile female dummy. Further, the petitioner did not submit any data to demonstrate otherwise.

We are maintaining the 5th percentile adult female test dummy positioning procedure for the low risk deployment (LRD) test as currently specified. The Advanced Air Bag Rule adopted a LRD test to address the risk air bags pose to out-of-position drivers, particularly those of small stature. The test is performed using two “worst case” positions: placing the dummy's chin on the module and placing the dummy's chin on the steering wheel. As originally established in the Advanced Air Bag Rule, the 5th percentile adult female test dummy's chin was to be placed on the steering wheel rim “without loading the neck.” In the December 2001 final rule, we permitted the use of supporting blocks to position the dummy and removed the prohibition from loading the dummy's neck. However, we did not specify the shape of the supporting blocks.

Honda petitioned the agency to specify the position and shape of the support blocks, stating that variation in the blocks can result in variation in the load applied to the test dummy's neck. As a result, Honda continued, neck injury data are not repeatable. Honda submitted neck injury criteria measurements from test dummies positioned with three different support block configurations. Honda's data demonstrated that the different configurations resulted in different initial neck load value ranges and different neck injury criteria measurement ranges (See Honda's petition; Docket No. NHTSA-2003-16476-9).

Honda's petition regarding this issue involves the procedure as amended by the December 2001 final rule. Since Honda's petition was submitted long after the deadline for petitioning for reconsideration of that final rule, we are treating Honda's petition as a petition for rulemaking per 49 CFR 553.35(a). We are denying the petition because Honda did not show that any difference in the injury criteria measurements was statistically significant. Further, Honda did not demonstrate that these differences would affect a manufacturer's ability to comply with the injury criteria requirements. The highest neck injury measurement recorded by Honda was one-third that of the maximum permitted under the standard.

We do not believe that the shape, material, or placement of the spacer blocks will produce any statistically significant difference in injury measurements when a 5th percentile adult female test dummy is subjected to a LRD test. Therefore, we are not specifying the material, shape, or positioning of the spacer blocks.

Further, we are not amending the procedure in response to the Alliance's request that for vehicle models with adjustable and non-adjustable steering wheels, the adjustable steering wheel should be positioned as close as possible to the position of the non-adjustable steering wheel. As stated above, the goal of compliance under this test condition is to provide a worst-case position (See 68 FR 65183). The purpose of the regulatory provision allowing movement of an adjustable steering wheel is to increase the probability of actually attaining this position. Additionally, the Alliance did not provide any data to demonstrate that the desired test dummy position would be attainable with the adjustable steering wheel positioned as it requested. Therefore, we do not support the Alliance's request for this change.

To address concerns raised by Honda regarding a potential inability to properly position a six-year-old test dummy, as well as a three-year-old test dummy, in the head-on-instrument panel test, we are amending the procedure to provide greater flexibility in positioning the 6-year-old test dummy. We are also clarifying the direction of the application of force used to position the test dummy.

The November 2003 final rule clarified the positioning procedure for the 6-year-old and three-year-old test dummies in the head-on-instrument panel LRD test (S22.4.3.5 and S24.4.3.5) to accommodate the situation in which the dummy torso could not be pushed against the instrument panel without forcing the femur angle to change. The procedure was amended to specify that the test dummy could be rotated about its seat contact and then about the test dummy's H-point and that a 222 N load may be applied to achieve contact between the head/torso and the instrument panel.

In Honda's petition, it stated that clarification provided in the November 2003 final rule might not permit dummy placement as specified, particularly in vehicle designs in which the seat is very low relative to the floor pan. The petitioner indicated that in vehicles with very low seats, the test dummy's feet contact the floor pan, resulting in rotation about the foot contact. Honda suggested that the only apparent way to relieve this contact was to extend the dummy's legs. The agency agrees with Honda, and is amending the procedure to permit extension of a test dummy's legs in instances in which contact with the floor pan prohibits rotation about the seat contact or test dummy's H-point.

Honda also stated that the procedure as amended in the November 2003 final rule failed to specify the direction of the application of the 222 N load on the test dummy's torso. S22.4.3.5 and S24.4.3.5 specify that the load is to be applied “towards the front of the vehicle on the spine of the dummy between the shoulder blades.” However, to provide additional clarity, the procedure is amended to provide that, in relation to the test dummy, the 222 N load is to be applied perpendicular to the thorax instrument cavity rear face.

Further, Honda requested that spacer blocks be permitted to support a test dummy in order to maintain the appropriate femur angle, if the dummy loses contact with the seat during the positioning procedure. We note that S24.4.3.6 currently permits the use of spacer blocks to support dummy position. This allowance includes the use of spacer blocks to support a test dummy's lower legs, and addresses Honda's request.

The agency is maintaining the current method, as established in the November 2003 final rule, for determining Planes C and D. Planes C and D are used to identify target points for positioning the 5th percentile adult female, 6-year-old, and 3-year-old test dummies in the LRD test procedures. Both planes reference an axis based on the volumetric centers of the undeployed and statically inflated air bag. The November 2003 final rule established the statically inflated air bag method (SIABM) to provide a more objective method for determining the location of Planes C and D.

Maserati and the AORC requested that the procedure revert back to the previous method for determining the air bag target points. In its petition, Maserati stated that the new method of targeting would result in a 50 mm drop in the location of the target point in one of its vehicles. In the alternative, Maserati requested additional lead time under the current procedure. The Alliance, stating that one of its members believes that the new method will result in a 30 mm drop, also requested additional lead time. The agency has already addressed the issue of lead time in the January 2004 final rule.

We continue to believe that the SIABM targeting method for positioning test dummies provides a more objective procedure and more clearly defines the agency's intent when it originally specified “the opening through which the air bag deploys.” The agency realizes that, particularly for top mounted air bags, the target point under the SIABM will be lower than under the previous technique. A lower target point may actually be more favorable for top mounted designs, which have already been shown to be less injurious to out-of-position occupants. This is due to the fact that the dummy will be farther from the initial path of the deploying air bag and will experience lower forces. Petitioners have not demonstrated how a lowering of the target point would adversely affect their ability to meet the LRD injury criteria. As stated in the January 2004 final rule, we believe the new positioning procedures should not require any more than minor modifications by affected manufacturers.

To provide additional clarification with regards to the SIABM, we note that each LRD test that requires an air bag target point also dictates the positions of interior components for the actual LRD test in question. Thus, in determining the volumetric center of the statically inflated air bag, these same component positions should be honored.

Additionally, the November 2003 final rule established the SIABM in S22.4.1.2 (3-year-old LRD), S24.4.1.2 (6-year-old LRD), 26.2.2 (5th percentile adult female chin on module), but inadvertently failed to amend S26.3.3 (5th percentile adult female chin on rim). That omission is corrected in today's final rule.

We are maintaining Appendix A as established in the November 2003 final rule. However, in response to petitions, we will not require manufacturers to certify that their vehicles comply with the suppression requirements using the LATCH-equipped CRSs until September 1, 2006.

If manufacturers rely on an airbag suppression system to minimize the risk to occupants in child restraint systems, FMVSS No. 208 requires manufacturers to certify that the vehicles comply with the suppression requirements when tested with the CRSs specified in Appendix A (See S19, S21 and S23). Appendix A provides a list of CRSs that the agency has determined to be representative of the systems currently in use in the vehicle fleet. In the November 2003 final rule, we revised the list to add two new CRSs and remove three from Appendix A. The added systems are equipped with LATCH, a configuration required under FMVSS No. 213, Child restraint systems, since September 1, 2002.

The Alliance petitioned the agency to extend the effective date for the new Appendix A until September 1, 2005. It stated that the lead time provided, approximately nine and a half months, was not adequate. Further, the Alliance stated that the agency did not provide any notice or opportunity for public comment regarding the amendments to Appendix A.

In the Advanced Air Bag Rule, the agency stated that the appendix would be periodically updated to reflect changes and designs in available CRSs (65 FR 30710). In the December 2001 final rule, we did note that generally one year of lead time will be provided for amendments to the appendix, but stressed the importance of establishing a list that is representative of real world usage (66 FR 65390).

The revisions to Appendix A in the November 2003 final rule were made in response to issues raised by Evenflo. The agency amended Appendix A in the November 2003 final rule to include LATCH-equipped CRSs in an effort to be representative of real world use. The agency recognized that the lead time provided for manufacturers would be less than 12 months. However, the agency also recognized that CRSs have been required to be LATCH equipped since September 1, 2002.

To ensure the robustness of automatic suppression systems, a manufacturer must be able to certify that the system operates under conditions representative of real world use. This includes operation when used with CRS designs that have been sold for almost two years. However, as the Alliance noted, the agency does not yet have a compliance test procedure in place for testing seats installed by means of the LATCH anchorages. Therefore, the effective date for the LATCH equipped CRSs in Appendix A is extended until September 1, 2006. By that time, the agency will have developed a compliance test procedure for securing a LATCH-equipped CRS to a vehicle using the lower anchor attachments.

In its petition, the Alliance also noted that Subpart C of Appendix A includes the Britax Expressway ISOFIX seat. The Alliance correctly points out that Subpart C is described as containing forward-facing convertible seats, yet the Expressway is not a convertible seat and the manufacturer of the Expressway recommends against using it in the rearward direction. Although not a convertible restraint, the Expressway is recommended for children with a weight as low as 20 lb. The Expressway design, while recommended for infants, cannot be clearly categorized under the existing subparts of Appendix A containing infant restraint systems ( i.e. , Subpart B—rear-facing infant seats, Subpart C—forward-facing convertible seats). However, the agency determined that the Expressway is best placed in Subpart C, which contains restraints used in a forward-facing configuration.

S19, Requirements to provide protection for infants in rear facing and convertible child restraints and car beds, specifies that under the automatic suppression compliance option, a vehicle must comply when tested using a 12-month-old test dummy and child restraint systems listed in Subpart B and Subpart C. The test procedure at S20 for S19, incorporates procedures representative of CRS misuse to reflect real world CRS installation. This includes installing a CRS listed in Subpart C in both the forward- and rear-facing position when belted and unbelted. Consistent with the goal of reflecting real world misuse, we will test the Britax ISOFIX Expressway in both directions. However, we note that if a manufacturer does not provide instructions for routing a vehicle's safety belt to secure a restraint for a given position ( e.g. , rear-facing), we will not test the restraint belted in that position. We will test the restraint facing forward in a belted configuration and both forward and rear-facing in an unbelted configuration to represent misuse. We are also amending Subpart C and Subpart D (forward facing toddler/belt-positioning booster systems) to describe more accurately the CRSs that are in these subparts.

Both Evenflo and TRW commented that Appendix A contains CRSs no longer in production and no longer available. Evenflo provided suggestions as to possible replacements. TRW stated that the lack of availability of CRSs in Appendix A as impeding restraint system development. TRW petitioned the agency to include currently available CRSs or to create a separate appendix for use beyond 2006.

We are not amending Appendix A as requested by Evenflo and TRW. As stated above, the appendix is intended to be representative of CRSs in use by the public, not merely CRSs that are currently on the market. The November 2003 final rule established a procedure for amending Appendix A. Seats will be added or removed when real world usage would make this appropriate.

Additionally, we do not believe Appendix A is hindering development of an LRD restraint system for infants, as suggested by TRW. Developmental tests need not use every CRS in Appendix A. These systems should be sufficiently robust that the absence of one or more seats represented in Appendix A in the development process should not impact compliance.

Honda's petition to restrict the maximum weight of CRSs is beyond the scope of the rulemaking notices that resulted in the November 2003 final rule. Such a restriction would need to be addressed through an amendment to FMVSS No. 213 and not FMVSS No. 208. Honda has resubmitted this as a rulemaking petition for FMVSS No. 213. This issue will be addressed in a separate notice.

S16 specifies the test procedures for rigid barrier test requirements using a 5th percentile adult female test dummy. S16.2.10.3.1 specifies that the seat cushion reference line is set to the middle of a range consisting of all possible angles with the seat cushion reference point (SCRP) in the rearmost position. The Alliance petitioned the agency to specify that a seat be placed in the full down position before the seat cushion is positioned to the middle of the range. It stated that the range of angles may vary with vertical position.

The agency recognized that a range of seat or seat cushions angles might vary with vertical position. As such, once a seat's SCRP is moved to the rearmost position, the range of angles is determined through use of any and all controls, other than those that primarily move the seat or seat cushion fore or aft. This includes those that adjust vertical position. To our knowledge, determination of the range is not dependent on the starting vertical position prior to moving the SCRP rearward.

In the November 2003 final rule, the agency replaced the term “right front outboard” with “front outboard passenger” when referring to the passenger air bag in S20.4.9, S22.4.4 and S24.4.4. It was our intent to make similar amendments for all references to passenger air bags, but inadvertently, this was not done. Therefore, we are replacing “right front outboard,” “right front passenger,” and “right front” with “front outboard passenger” in S20, S22, and S24.

Additionally, the Alliance noted that in S16.2.10.3.2 and S16.2.10.3.3, the word “cushion” was left out of the phrase “seat cushion reference point.” We also identified a similar omission in S26.3.1. To rectify this appropriately, the agency is amending the text and use the acronym SCRP in each of these sections.

The amendments adopted in today's document are effective beginning September 1, 2004. This date is the same as the compliance date established in the January 2004 final rule for the November 2003 final rule. Today's final rule extends the compliance date for testing with specified restraint CRSs for a period of two years. If today's final rule was not effective September 1, 2004, manufacturers would be required to comply with the amendments in the November 2003 final rule on that date despite the fact that the compliance date for certain amendments is extended in today's document. Manufacturers would be required to comply with the delayed provisions for an interim period until today's document became effective at some later date. This could result in unnecessary costs for manufacturers. Further, we have determined that the changes made in this document do not impact a manufacturer's ability to certify a vehicle.

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 has not been reviewed by the Office of Management and Budget under E.O. 12866, “Regulatory Planning and Review,” because it was not deemed significant under the executive order. The rulemaking action has also been determined to not be significant under the Department's regulatory policies and procedures. The agency has concluded that the impacts of today's amendments are so minimal that a full regulatory evaluation is not required. The amendments adopted in this document will neither increase nor decrease to cost of compliance. Readers who are interested in the overall costs and benefits of advanced air bags are referred to the agency's Final Economic Assessment for the May 2000 final rule (Docket No. NHTSA-2000-7013-02). NHTSA has determined that the costs and benefits analysis provided in that document are unaffected by today's rule.

We have considered the effects of this rulemaking action under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) This action will not have a significant economic impact on a substantial number of small businesses because it does not significantly change the requirements of the May 2000 final rule or the December 2001 final rule. Small organizations and small governmental units will not be significantly affected since the potential cost impacts associated with this rule remain unchanged from the December 2001 final rule.

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.

The Unfunded Mandates Reform Act of 1995 requires 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 annually (adjusted for inflation with base year of 1995). While the May 2000 final rule is likely to result in over $100 million of annual expenditures by the private sector, today's final rule makes only small adjustments to the December 2001 rule, which, in turn, made only small adjustments to the May 2000 rule. Accordingly, this final rule will not result in a significant increase in cost to the private sector.

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 12866 requires each agency to write all rules in plain language. Standard No. 208 is extremely difficult to read as it contains multiple cross-references and has retained all of the requirements applicable to vehicles of different classes at different times. Because portions of today's rule amend existing text, much of that complexity remains. Additionally, the availability of multiple compliance options, differing injury criteria and a dual phase-in have added to the complexity of the regulation, particularly as the various requirements and options are accommodated throughout a phase-in. Once the phase-ins are complete, much of the complexity will disappear. At that time, it would be appropriate to completely revise Standard No. 208 to remove any options, requirements, and differentiations as to vehicle class that are no longer applicable.

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 directly involves decisions based on health risks that disproportionately affect children, namely, the risk of deploying air bags to children. However, this rulemaking serves to reduce, rather than increase, that risk.

Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) requires NHTSA to evaluate and use existing voluntary consensus standards  2 in its regulatory activities unless doing so would be inconsistent with applicable law ( e.g. , the statutory provisions regarding NHTSA's vehicle safety authority) or otherwise impractical. In meeting that requirement, we are required to consult with voluntary, private sector, consensus standards bodies. Examples of organizations generally regarded as voluntary consensus standards bodies include the American Society for Testing and Materials (ASTM), the Society of Automotive Engineers (SAE), and the American National Standards Institute (ANSI). If NHTSA does not use available and potentially applicable voluntary consensus standards, we are required by the Act to provide Congress, through OMB, an explanation of the reasons for not using such standards.

The agency is not aware of any new voluntary consensus standards addressing the changes made to the May 2000 final rule, the December 2001 final rule or the November 2003 final rule as a result of this final rule.

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 .

Regulations implemented under the authority of the Atlantic Tunas Convention Act (16 U.S.C. 971 et seq. ) and the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq. ) governing the harvest of BFT by persons and vessels subject to U.S. jurisdiction are found at 50 CFR part 635. Section 635.27 subdivides the U.S. BFT quota recommended by the International Commission for the Conservation of Atlantic Tunas (ICCAT) among various domestic fishing categories. A recommendation of ICCAT requires that NMFS limit the catch of school BFT, measuring 27 to less than 47 inches (69 to less than 119 cm) curved fork length (CFL), to no more than 8 percent by weight of the total domestic landings quota over each four-consecutive-year period. NMFS is implementing this ICCAT recommendation through annual and inseason adjustments to the school BFT retention limits, as necessary, and through the establishment of a school BFT reserve (64 FR 29090, May 28, 1999; 64 FR 29806, June 3, 1999). The ICCAT recommendation allows for interannual adjustments for overharvests and underharvests, provided that the 8 percent landings limit is not exceeded over the applicable 4-consecutive-year period. The 2004 fishing year is the second year in the current accounting period. This multi-year block quota approach provides NMFS with the flexibility to enhance fishing opportunities and to collect information on a broad range of BFT size classes while minimizing the risk of overharvest of the school size class.

Implementing regulations for the Atlantic tuna fisheries at § 635.23 set the daily retention limits for BFT and allow for adjustments to the daily retention limits in order to provide for maximum utilization of the quota over the longest possible period of time. NMFS may increase or decrease the retention limit for any size class BFT or change a vessel trip limit to an angler limit or vice versa. Such adjustments to the retention limits may be applied separately for persons aboard a specific vessels type, such as private vessels, headboats and charter boats.

On June 23, 2004 (69 FR 34960), NMFS adjusted the daily recreational retention limit, in all areas, for vessels permitted in the HMS Angling category, to two school, large school, or small medium BFT, measuring 27 to less than 73 inches (69 to less than 185 cm) CFL, per vessel per day/trip. This retention limit remained in effect through July 21, 2004, inclusive. Starting on July 22, 2004, the daily retention limit for vessels permitted in the HMS Angling category, reverted to one school, large school, or small medium BFT, per vessel per day/trip.

Based on communications with fishermen, available quota, and historical information regarding fish migration patterns and availability off the east coast, particularly off the mid-Atlantic states, NMFS has determined that a modest increase in the daily retention limit, of limited duration, is appropriate and necessary without risking overharvest of available quota. Thus NMFS adjusts the daily BFT retention limit, in all areas, for vessels permitted in the HMS Angling category, effective August 20 through September 20, 2004, inclusive, to two BFT per vessel per day/trip, in any combination of the school, large school, or small medium size classes.

NMFS is aware of industry concerns that a recreational retention limit of less than three or four BFT per vessel per day/trip does not provide reasonable fishing opportunities for charter/headboats, which carry multiple fee-paying passengers. Charter/headboat operators have requested a modified retention limit that recognizes a fee-paying client's willingness to book charters in advance based on potential retention limits. NMFS published a final rule that clarified the procedures to set differential BFT retention limits to provide equitable fishing opportunities for all types of fishing vessels (December 18, 2002; 67 FR 77434).

NMFS previously adjusted the daily recreational retention limit, in all areas, for vessels permitted in the HMS Charter/Headboat category, to three school, large school, or small medium BFT, per vessel per day/trip, through July 21, 2004 (June 23, 2004, 69 FR 34960). Starting on July 22, 2004, the daily retention limit for vessels permitted in the HMS Charter/Headboat category, also reverted to one school, large school, or small medium BFT, per vessel per day/trip. Based on communications with fishermen and the nature of charter/headboat fishing operations stated above, NMFS adjusts the daily BFT retention limit, in all areas, for vessels permitted in the HMS Charter/Headboat category, effective August 20 through September 20, 2004, inclusive, to three BFT per vessel per day/trip, in any combination of the school, large school, or small medium size classes.

Effective September 21, 2004, through the remainder of the fishing year, May 31, 2005, inclusive, the default daily recreational retention limit at 50 CFR 635.23(b)), will apply in all areas, for all vessels fishing under the Angling category quota (i.e., both HMS Angling and Charter/Headboat vessels). The default retention limit is one school, large school, or small medium BFT, measuring 27 to less than 73 inches (69 to less than 185 cm) CFL, per vessel per day/trip.

NMFS selected the daily retention limits and the duration of the daily retention limit adjustments after examining past catch and effort rates and the available quota for the 2004 fishing year. NMFS will continue to monitor the BFT fishery closely through the Automated Landings Reporting System, state harvest tagging programs in North Carolina and Maryland, and the Large Pelagics Survey. Depending on the level of fishing effort and catch rates of BFT, NMFS may determine that additional retention limit adjustments are necessary to ensure available quota is not exceeded or, to enhance scientific data collection from, and fishing opportunities in, all geographic areas. Additionally, NMFS may determine that an allocation from the school BFT reserve is warranted to further fishery management objectives.

Closures or subsequent adjustments to the daily retention limit, if any, will be published in the Federal Register . In addition, anglers may call the Atlantic Tunas Information Line at (888) 872-8862 or (978) 281-9305 for updates on quota monitoring and retention limit adjustments. All BFT landed under the Angling category quota must be reported within 24 hours of landing to the NMFS Automated Landings Reporting System via toll-free phone at (888) 872-8862; or the Internet ( www.nmfspermits.com ); or, if landed in the states of North Carolina or Maryland, to a reporting station prior to offloading. Information about these state harvest tagging programs, including reporting station locations, can be obtained in North Carolina by calling (800) 338-7804, and in Maryland by calling (410) 213-1531.

The Assistant Administrator for Fisheries, NOAA (AA), finds that it is impracticable and contrary to the public interest to provide prior notice of, and an opportunity for public comment on, this action. BFT traditionally start to migrate during the late summer and are currently available in the northern area. NMFS has already provided a 1-month window of enhanced fishing opportunities to fishermen off the coasts of mid-Atlantic states from mid-June to mid-July. In order to balance concerns regarding continued utilization of available quota while not exceeding allotted amounts and at the same time provide for recreational fishing opportunities along all of the Atlantic coast NMFS needs to act promptly to provide enhanced fishing opportunities to northern area fishermen similar to those previous provided to the mid-Atlantic area. NMFS is now aware of an increase in BFT available in the northern area fishing grounds. Delay in increasing the retention limits would adversely affect those northern area Angling and Charter/Headboat category vessels that have a limited window of opportunity to access recreational size class BFT as the fish are expected to continue to migrate and will no longer be accessible to anglers in this region. Therefore, the AA finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment. For all of the above reasons, and because this action relieves a restriction (i.e., allows the retention of more fish), there is also good cause under 5 U.S.C. 553(d) to waive the delay in effectiveness of this action.

This action is being taken under 50 CFR 635.23(a)(4) and is exempt from review under Executive Order 12866.

The NMFS Regional Administrator (RA) modified the season for the commercial fishery in the area from the U.S.-Canada Border to Cape Falcon, OR to reopen on July 16 through July 19, with the revised provision that no vessel may possess, land, or deliver more than 125 chinook for each open period. The fishery then reverted to the regulations as announced for 2004 ocean salmon fisheries and continues until the chinook quota or coho quota are taken, or September 15, whichever is earlier. The fishery reopened on July 22, with an open cycle of Thursday through Monday prior to August 11, and Wednesday through Sunday thereafter, and a landing and possession limit of 125 chinook per vessel per each 5-day open period. On July 14 the Regional Administrator had determined available catch and effort data indicated that the effort was less than predicted inseason and that restricting the fishery to slow the catch of chinook to allow more time for fishers to access more of the coho quota was no longer needed.

All other restrictions remain in effect as announced for 2004 ocean salmon fisheries. This action was necessary to conform to the 2004 management goals. Modification of fishing seasons is authorized by regulations at 50 CFR 660.409(b)(1)(i) and (ii).

In the 2004 annual management measures for ocean salmon fisheries (69 FR 25026, May 5, 2004), NMFS announced the commercial fishery for all salmon in the area from the U.S.-Canada Border to Cape Falcon, OR would open July 8 through the earlier of September 15, or a 14,700-chinook preseason guideline, or a 67,500-coho quota. The 67,500-coho quota included a subarea quota of 8,000 coho for the area between the U.S.-Canada border and the Queets River, WA. The fishery was scheduled to be open Thursday through Monday prior to August 11, and Wednesday through Sunday thereafter, with the restriction that no vessel may possess, land, or deliver more than 125 chinook for each 5-day open period.

The fishery in the area from the U.S.-Canada Border to Cape Falcon, OR, was modified by Inseason Action #5 to open July 8 and close at midnight on July 12, 2004, then to reopen on July 16 through midnight on July 19, 2004, with the provision that no vessel may possess, land, or deliver more than 100 chinook for each open period (69 FR 43345, July 20, 2004). The fishing season was modified to slow the chinook catch rate and avoid exceeding the chinook quota. The fishery was scheduled to be reevaluated by an inseason conference call on July 14, and any further adjustments announced.

On July 14, 2004, the RA consulted with representatives of the Pacific Fishery Management Council, Washington Department of Fish and Wildlife, and Oregon Department of Fish and Wildlife by conference call. Information related to catch to date, the chinook and coho catch rate, and effort data indicated that the effort during the first open period was lower than expected and that restricting the fishery to slow the catch of chinook could be rescinded without foreclosing opportunity for fishers to access more of the coho quota. As a result, on July 14 the states recommended, and the RA concurred, that the area from the U.S.-Canada Border to Cape Falcon, OR reopen on July 16 through midnight l.t. on July 19, 2004 (4 days open), with the revised provision that no vessel may possess, land, or deliver more than 125 chinook for each open period. The fishery would then revert to the regulations as announced for 2004 ocean salmon fisheries and would continue until the chinook quota or coho quota are taken, or September 15, which ever is earlier. The fishery was reopened on July 22, with an open cycle of Thursday through Monday prior to August 11, and Wednesday through Sunday thereafter, and a landing and possession limit of 125 chinook per vessel per each 5-day open period. All other restrictions that apply to this fishery remain in effect as announced in the 2004 annual management measures.

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

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

The Assistant Administrator for Fisheries, NOAA (AA), finds that good cause exists for this notification to be issued without affording prior notice and opportunity for public comment under 5 U.S.C. 553(b)(B) because such notification would be impracticable. As previously noted, actual notice of this action was provided to fishers through telephone hotline and radio notification. This action complies with the requirements of the annual management measures for ocean salmon fisheries (69 FR 25026, May 5, 2004), the West Coast Salmon Plan, and regulations implementing the West Coast Salmon Plan 50 CFR 660.409 and 660.411. Prior notice and opportunity for public comment was impracticable because NMFS and the state agencies had insufficient time to provide for prior notice and the opportunity for public comment between the time the fishery catch and effort data were collected to determine the extent of the fisheries, and the time the fishery modifications had to be implemented in order to allow fishers access to the available fish at the time the fish were available. The AA also finds good cause to waive the 30-day delay in effectiveness required under U.S.C. 553(d)(3), as a delay in effectiveness of these actions would unnecessarily limit fishers appropriately controlled access to available fish during the scheduled fishing season.

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