The FAA proposed to amend 14 CFR Part 39 with an AD for certain Bombardier Model DHC-8-311 airplanes. The proposed AD was published in the Federal Register on July 8, 2004 (69 FR 41213), to require reviewing the airplane maintenance records to determine if you did the most recent bonding integrity inspection according to a certain revision of the Maintenance Program Support Manual (PSM), and doing related investigative and corrective actions if necessary.

We provided the public the opportunity to participate in the development of this AD. No comments have been submitted on the proposed AD or on the determination of the cost to the public.

We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed.

This AD will affect about 8 airplanes of U.S. registry. The records review will take about 1 work hour per airplane, at an average labor rate of $65 per work hour. Based on these figures, the estimated cost of the proposed AD for U.S. operators is $520, or $65 per airplane.

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 regulatory evaluation of the estimated costs to comply with this AD. See the ADDRESSES section for a location to examine the regulatory evaluation.

FAA Order 7400.9L, Airspace Designations and Reporting Points, dated September 2, 2003, and effective September 16, 2003, listed Class A, B, C, D and E airspace areas; air traffic service routes; and reporting points. Due to the length of these descriptions, the FAA requested approval from the Office of the Federal Register to incorporate the material by reference in the Federal Aviation Regulations section 71.1, effective September 16, 2003, through September 15, 2004. During the incorporation by reference period, the FAA processed all proposed changes of the airspace listings in FAA Order 7400.9L in full text as proposed rule documents in the Federal Register . Likewise, all amendments of these listings were published in full text as final rules in the Federal Register . This rule reflects the periodic integration of these final rule amendments into a revised edition of Order 7400.9M, Airspace Designations and Reporting Points. The Director of the Federal Register has approved the incorporation by reference of FAA Order 7400.9M in section 71.1, as of September 16, 2004, through September 15, 2005. This rule also explains the procedures the FAA will use to amend the airspace designations incorporated by reference in part 71. Sections 71.5, 71.31, 71.33, 71.41, 71.51, 71.61, 71.71, 71.79, and 71.901 are also updated to reflect the incorporation by reference of FAA Order 7400.9M.

This action amends part 71 of the Federal Aviation Regulations (14 CFR part 71) to reflect the approval by the Director of the Federal Register of the incorporation by reference of FAA Order 7400.9M, effective September 16, 2004, through September 15, 2005. During the incorporation by reference period, the FAA will continue to process all proposed changes of the airspace listings in FAA Order 7400.9M in full text as proposed rule documents in the Federal Register . Likewise, all amendments of these listings will be published in full text as final rules in the Federal Register . The FAA will periodically integrate all final rule amendments into a revised edition of the order, and submit the revised edition to the Director of the Federal Register for approval for incorporation by reference in section 71.1.

The FAA has determined that this action: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. This action neither places any new restrictions or requirements on the public, nor changes the dimensions or operation requirements of the airspace listings incorporated by reference in part 71. Consequently, notice and public procedure under 5 U.S.C. 553(b) are unnecessary. Because this action will continue to update the changes to the airspace designations, which are depicted on aeronautical charts, and to avoid any unnecessary pilot confusion, I find that good cause exists, under 5 U.S.C. 553(d), for making this amendment effective in less than 30 days.

Under 5 U.S.C. 301, heads of Executive or military departments may prescribe regulations for the custody, use, and preservation of the department's records, papers, and property. Many departments and agencies have promulgated such regulations to provide procedures for the disclosure of official records and information. Generally, these are termed Touhy regulations, after the Supreme Court's decision in United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). In that case, the Supreme Court held that an agency employee could not be held in contempt for refusing to disclose agency records or information when following the instructions of his or her supervisor regarding the disclosure. As such, an agency's Touhy regulations are the instructions agency employees are to follow when those employees receive requests or demands to testify or otherwise disclose agency records or information.

Treasury's Touhy regulations are codified in §§ 1.8 through 1.12 of title 31 of the Code of Federal Regulations. Generally, these regulations provide that employees of the Departmental Offices of the Department of the Treasury may not disclose documents or information in response to a demand or other order of a court or any other authority without first being authorized to do so. The purpose of these regulations is to conserve valuable agency resources, to protect Treasury employees from becoming enmeshed in litigation, and to protect sensitive government documents and decision making processes.

On March 17, 2003, Treasury published in the Federal Register an interim final rule (68 FR 12584) that amended its Touhy regulations. The interim final rule revised the regulations to prescribe the factors Treasury officials should consider when deciding whether to allow disclosure of documents and information in response to a demand or other order of a court, and which Treasury officials may make these decisions. The interim final rule also made a number of clarifying and technical amendments to the regulations and solicited public comment on Treasury's revisions to its Touhy regulations.

This final rule adopts the provisions of the interim final rule with the following changes.

This section sets forth the policies and procedures of the Department regarding the testimony of employees as witnesses in legal proceedings and the production or disclosure of Treasury documents for use in legal proceedings.

Paragraph (b) defines the terms used throughout the regulations. Paragraph (b)(5) defines “employee” to include “officers of the Department, including contractors and any other individuals who have been appointed by, or are subject to the supervision, jurisdiction or control of the Secretary.” We amended paragraph (b)(5) to clarify that the term “employee” also includes the Secretary of the Treasury. We also amended paragraph (b)(1) to clarify that the General Counsel may delegate his or her responsibilities as agency counsel with respect to the Departmental offices.

Paragraph (d) sets forth procedures applicable to requests for testimony or the production of documents. Paragraph (d)(3) of the interim final rule provided that any request for testimony or the production of documents in litigation in which neither the Department nor the United States is a party be supported by an affidavit setting forth the nature of the litigation, describing the nature of the testimony and/or documents sought, and explaining why the testimony and/or documents are desired. Under paragraph (d)(3)(i) there had to be a “showing that the desired testimony or document is not reasonably available from any other source.”

One commenter suggested that the use of the terms “testimony” and “document” in paragraph (d)(3)(i) was misleading because it implied that unless a specific document or testimony from a particular person is not available from another source then the request should be granted. We agree with this comment. While government documents and testimony from specific individuals may be unique, the intent of this provision was to not grant requests if other documents and testimony could be obtained, thus ensuring that requesters have exhausted all other avenues to obtain the information sought. Accordingly, we are clarifying paragraph (d)(3)(i) to require a requester to show that information reasonably suited to the request is not available from any other source.

Paragraph (f)(1) provided that an “employee” may not provide expert testimony, except on behalf of the United States or a party represented by the Department of Justice, without written approval of agency counsel. Paragraph (f)(2) provided that agency counsel may approve a request for expert testimony from an “employee” or “former employee” upon a showing by the requestor of exceptional need or unique circumstances, provided that the testimony will not be adverse to the interests of Treasury or the United States. Paragraph (f)(3) provided expert or opinion testimony of a “former employee” is not subject to prohibition in paragraph (f)(1) if the testimony involves only general expertise gained while employed at the Department.

One commenter suggested that the term “former employee” be added to paragraph (f)(1) to clarify that the entirety of paragraph (f) applies to former employees. We agree that such an amendment is consistent with paragraph (f), and this final rule amends paragraph (f)(1) accordingly.

Because this rule relates to agency management and personnel, and because it merely amends Treasury's existing regulations to more closely parallel similar regulations adopted by other Federal agencies, it is not subject to notice and public procedure pursuant to 5 U.S.C. 553(a)(2) and (b)(B). For the same reasons, a delayed effective date is not required pursuant to 5 U.S.C. 553(a)(2) and (d)(3).

Because no notice of proposed rulemaking is required, the provisions of the Regulatory Flexibility Act (5 U.S.C. chapter 6) do not apply.

It has been determined that this interim final rule is not a significant regulatory action for purposes of Executive Order 12866.

In a proposed rule published in the Federal Register on June 15, 2004 (69 FR 33341), the Postal Service proposed an amendment to Domestic Mail Manual (DMM) E670.5.5, which provides guidelines for determining whether insurance solicitations are eligible to be mailed at Nonprofit Standard Mail rates (“nonprofit rates”). The Postal Service has determined to adopt the proposed amendment. The change sets forth additional circumstances where the coverage provided by a general type of insurance, such as homeowner's, property, casualty, marine, and professional liability, would be considered not generally otherwise commercially available and, accordingly, mail promoting that coverage would be eligible to be mailed at Nonprofit Standard Mail rates.

Mailings permitted at nonprofit rates according to the policies in effect since 1991 will continue to be eligible for the nonprofit rates. These include, as discussed in the proposal, material promoting charitable gift annuities and material promoting insurance to a target group that does not otherwise have a source to obtain that type of coverage. The change amends the DMM to clarify that section E670.5.5 does not restrict the use of the nonprofit rates for mailings of an authorized fraternal benefit society or any other nonprofit organization when the material advertises, promotes, or offers insurance that is underwritten by the nonprofit organization itself. Nor does it restrict the use of the nonprofit rates for mailings of an authorized organization's material that advertises, promotes, or offers insurance, if the coverage is provided or promoted by the nonprofit organization to its members, donors, supporters, or beneficiaries in such a way that those parties may make tax-deductible donations to the organization of their proportional shares of income in excess of costs that the nonprofit organization receives from the purchase of the coverage by its members, donors, supporters, or beneficiaries. The changes take into account court rulings, the Postal Service Appropriations Act of 1991, and related legislative history.

As explained in the proposal, mailings that are ineligible for Nonprofit Standard Mail rates under the cooperative mail rule or other standards remain ineligible for nonprofit rates, regardless whether they violate the amended standards related to insurance. Moreover, mailers continue to bear the burden to substantiate that mailings qualify for nonprofit rates, and may be asked to provide evidence to support eligibility for those rates before a mailing is accepted.

The Postal Service received one comment concerning its proposal. This comment supported the amendments proposed by the Postal Service.

Accordingly, for the reasons explained here and in the notice proposing the amended standard, the Postal Service adopts the rule as proposed.

An appropriate amendment to 39 CFR part 111 will be published to reflect these changes.

Amendment of parts 310 and 320 is necessary to correct the addresses for inquiries and other correspondence regarding enforcement of the Private Express Statutes.

Throughout this document, “we,” “us” and “our” refer to EPA.

On June 2, 2004 (69 FR 31056), we proposed a partial approval and partial disapproval of the rules listed in Table 1 as revisions to the Nevada State Implementation Plan (SIP). Specifically, we proposed to approve submitted Clark County Air Quality Regulations (CCAQR) sections 0, 11, 12 (except subsections 12.2.18 and 12.2.20), 58 and 59 and to approve submitted Nevada Administrative Code section 445B.22083. We proposed to disapprove submitted CCAQR subsections 12.2.18 and 12.2.20 and CCAQR subsection 52.8.

We proposed a partial approval and a partial disapproval because, while we determined that most of the rules complied with the relevant Clean Air Act (CAA or Act) requirements, we determined that certain severable subsections of the rules did not so comply. We took this proposed action after finding the SIP submittal dated October 23, 2003, containing the local New Source Review (NSR) rules, to be complete on November 18, 2003. The SIP submittal dated November 20, 2003, containing the State regulation, 2 was deemed complete by operation of law on May 20, 2004.

Our June 2, 2004 proposed action contains more information on the rules and our evaluation.

In our June 2, 2004 proposed rule, we also proposed to delete 40 CFR 52.1470(c)(36) and (37) in recognition of the vacature by the Ninth Circuit Court of Appeals of our approval of previous versions of the Clark County New Source Review (NSR) rules in Hall v. EPA , 273 F.3d 1146 (9th Cir. 2001).

Lastly, in our June 2, 2004 proposed rule, we proposed to correct certain provisions of the Clark County portion of the Nevada SIP that we approved in error and to revise certain provisions of the Clark County portion of the Nevada SIP that warrant clarification. Specifically, we proposed to delete SIP section 1, subsections 1.79 (Significant source of total chlorides) and 1.94 (Total Chlorides); SIP section 15 (Prohibition of Nuisance Conditions); SIP section 29 (Odors in the Ambient Air); SIP section 40, subsection 40.1 (Prohibition of Nuisance Conditions); SIP section 42, subsection 42.2 (untitled but related to nuisance from open burning); and SIP section 43, subsection 43.1 (Odors in the Ambient Air), from the appropriate paragraphs of 40 CFR 52.1470 (“Identification of plan”). We also proposed to revise the appropriate paragraphs in 40 CFR 52.1470 to clarify that former SIP section 12 (Upset, Breakdown, or Scheduled Maintenance) and submitted section 25.1 (untitled, but related to upset, breakdown, or scheduled maintenance) are not approved into the Clark County portion of the Nevada SIP, and to clarify that SIP section 33 (Chlorine in Chemical Processes) was, and continues to be, approved into the Clark County portion of the Nevada SIP as part of our approval of the overall post-1982 ozone plan for Las Vegas Valley.

On May 20, 2004, we published a direct final rule (69 FR 29074) and a proposed rule (69 FR 29120) approving the same version of CCAQR section 11 for which we subsequently proposed approval in our June 2, 2004 action. On our own initiative, we withdrew the direct final rule with respect to CCAQR section 11 in a partial withdrawal action that we published on July 2, 2004 (69 FR 40324). We withdrew the direct final action on CCAQR section 11 to avoid confusion with our subsequent proposed rule. EPA's May 20, 2004 proposed rule provided for a 30-day public comment period. We received no comments on the May 20, 2004 proposal. In today's notice, we are finalizing action proposed both on May 20, 2004 and again on June 2, 2004 to approve CCAQR section 11, as adopted on October 7, 2003 and submitted to EPA on October 23, 2003, into the Clark County portion of the Nevada SIP.

EPA's June 2, 2004 proposed rule provided for a 30-day public comment period. During this period, we received comments from the following parties:

(1) Ray Bacon, Executive Director, Nevada Manufacturers Association (“NMA”), letter dated June 28, 2004, calling for clarification of which DAQEM rules are proposed to be part of the SIP and which are not, citing inadequate public access to NSR materials, recommending that only an offset ratio of 1:1 be made part of the SIP, calling for elimination of conflicting and confusing definitions, calling for the redesignation of Clark County to “attainment” for the carbon monoxide (CO) National Ambient Air Quality Standard (NAAQS) and the revision of the NSR program accordingly, and calling for a revision of EPA's evaluation of the SIP submittals to reflect the current Federal NSR regulations;

(2) Christine Robinson, Director, Clark County Department of Air Quality and Environmental Management (DAQEM), letter dated July 1, 2004, citing an apparent error in EPA's interpretation of the requirements for oxides of nitrogen (NO X ) under the existing SIP NSR program, but supporting EPA's overall conclusions about the comparative stringency of the submitted NSR program relative to the existing SIP NSR program; and

(3) Robert W. Hall, President, Nevada Environmental Coalition, Inc. (“NEC”), letter dated July 2, 2004, objecting to the proposed approval of the submitted NSR program as inconsistent with sections 110(l), 116, 171(1), and 193 of the Act, particularly as those sections relate to the pollutants for which Las Vegas Valley has been designated nonattainment ( i.e. , particulate matter (PM-10), CO, and ozone).

Responses to all comments can be found in the following paragraphs.

NMA Comment #1: EPA proposes to approve all of CCAQR sections 58 and 59 (and corresponding provisions of section 12) concerning offsets. However, not all of those requirements are intended to implement the Federal CAA NSR program, nor does DAQEM submit them for that purpose. DAQEM intends only subsection 59.1 (“Federal Offset Requirements”) to be part of the SIP revision, not subsection 59.2 (“Local Offset Requirements”). Similarly, subsections 59.3, 59.4, and 59.5 contain certain provisions that are meant to be federally enforceable ( i.e. , part of the SIP), and some that are exclusively local. Subsection 12.2.6, or portions thereof, also appears to be a requirement, in whole or in part, that is not intended for CAA NSR purposes and is not subject to this approval. EPA and DAQEM should identify with precision which requirements of DAQEM NSR rules are to be federally approved and enforceable and which are not; this clarified rule should then be subject to notice and comment before final SIP approval. As a consequence, the approval should be suspended and subject to notice and comment after the clarifications are made public.

Response to NMA Comment #1: NMA is correct in that certain provisions of the submitted NSR program were not intended to be approved as part of the Nevada SIP. By letter dated July 12, 2004, from Jolaine Johnson, Acting Administrator, Nevada Division of Environmental Protection, to Deborah Jordan, Director, Air Division, U.S. EPA—Region IX, DAQEM and the State requested EPA to withdraw the approval of subsection 59.2 as part of the SIP. As a result, we no longer have authority to act on subsection 59.2 (“Local Offset Requirements”), and subsection 59.2 will therefore not become federally enforceable. We do not believe that the State's withdrawal of subsection 59.2 necessitates a new round of notice and comment under the Administrative Procedure Act because we did not rely on subsection 59.2 in our June 2, 2004 proposed rule. That is, we did not rely on subsection 59.2 to satisfy any Federal NSR (nonattainment NSR or PSD) requirements nor to justify our proposed partial approval of the submitted NSR program under either sections 110(l) or 193 of the Act. The withdrawal of subsection 59.2 does not change our conclusion or the underlying rationale set forth in the proposed rule in any way.

We note that the submitted NSR program contains a revised minor (Clark County Air Quality Regulations use a related term, “non-major”) stationary source review program and a revised major stationary source review program (nonattainment NSR and PSD) and that both minor and major source review programs are required under the Act. See sections 110(a)(2)(C), 161, and 172(c)(5) of the Act. Furthermore, for SIP revisions to be approved by EPA, SIP revisions must also comply with certain other requirements of the Act, such as section 110(l), which prohibits approval of SIP revisions that would interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the Act. Thus, certain requirements in the submitted NSR program may not be needed to satisfy CAA NSR requirements for major sources and major modifications, but are necessary to provide EPA with the basis to approve the overall NSR program revision to supercede the existing SIP-approved Clark County NSR program under section 110(l). Thus, all of the provisions in the NSR submittal dated October 7, 2003, with the exception of those specific provisions which EPA proposed to disapprove and with the added exception of subsection 59.2 discussed above, are necessary to provide EPA with the basis to approve the updated NSR program, and, upon EPA approval, will become federally enforceable.

NMA Comment #2: An additional and separate source of confusion is the lack of adequate posting and public access to the relevant NSR requirements. As of the date of these comments, DAQEM's Web site posts the text of its section 0, 12, 58, and 59 requirements as regulations adopted on December 4, 2001. The EPA proposed rule for Clark County's SIP approval is based on DAQEM regulations EPA states were adopted on October 7, 2003 and which are available only by written request. The problem is that the text of the Clark County rules EPA apparently proposes to approve into the SIP is substantially different from the text of the DAQEM rules posted on DAQEM's Web site. To compound the problem, EPA has stated “While we can only act on the most recently submitted version, we have reviewed materials provided with previous submittals.” Neither the proposed rule itself nor the Technical Support Document (TSD) explain what are the “materials” or “previous submittals” on which EPA relies. As a result, public comment on the appropriateness of such reliance is impossible. Before finalizing the SIP approval, EPA and DAQEM should identify the specific regulatory texts which form the basis for EPA's proposed SIP approval; these should be made available to the public. To the extent EPA relies on any materials other than these regulations, the proposed SIP approval should identify the specific material and the nature of EPA's reliance on it.

Response to NMA Comment #2: We disagree with NMA's contention that our proposed action lacked adequate public access to the relevant materials. The specific regulatory texts which form the basis for EPA's proposed SIP action are as follows: CCAQR sections 0, 11, 12, 52.8, 58, and 59 (not including subsection 59.2, as discussed above in Response to NMA Comment #1), as adopted by the Clark County Board of County Commissioners on October 7, 2003 and as submitted to EPA by NDEP on October 23, 2003; and Nevada Administrative Code (NAC) section 445B.22083, as adopted by the State Environmental Commission on March 29, 1994 and submitted to EPA by NDEP on November 20, 2003. With the exception of subsection 59.2, this is the exact list identified in Table 1 of our proposed rule. See 69 FR at 31057. Also, in our proposed rule, at 69 FR 31056, column 3, we indicated that members of the public could inspect copies of the State's submittals, EPA's technical support documents, and other supporting documentation at EPA Region IX offices, could inspect copies of the State's submittals at NDEP offices in Carson City, or could inspect copies of the revised Clark County NSR rules at DAQEM offices in Las Vegas. We did not rely on DAQEM's Web site for public access to the relevant materials.

In the proposed rule, at 69 FR 31057, we describe the various Clark County NSR submittals sent to us pursuant to the Act, as amended in 1990, and our actions related to them. In the discussion in the proposed rule, we explain that our approval of previous Clark County NSR submittals (then contained in Clark County Health District Air Pollution Control Regulations sections 0, 12, and 58) was vacated in Hall v. EPA (273 F.3d 1146, 9th Cir. 2001), that we received a revised Clark County NSR program on February 25, 2003 that included the then-current CCAQR sections 0, 11, 12, 58, and 59, as adopted on December 4, 2001, but that this February 25, 2003 submittal was superceded by the Clark County NSR submittal dated October 23, 2003. Further, our proposed rule indicates that the October 23, 2003 submittal of the Clark County NSR rules is the one that forms the basis for our proposed action. We rely on superceded SIP submittals only to the extent that they inform our understanding of the evolution of the Clark County NSR program from the version that formed the basis for our prior SIP approval action ( see 64 FR 25210, May 11, 1999), which was subsequently vacated in the Hall decision, through the adoption in October 2003 by Clark County of the version of the NSR program that formed the basis for our proposed action. We believe that we described this regulatory history in sufficient detail in our June 2, 2004 proposed rule to have allowed for informed public comment on our proposed action.

NMA Comment #3: Clark County's NSR rules and EPA's approval incorporate an unnecessarily and inappropriately stringent 2 to 1 offset ratio requirement for major sources and major modifications involving CO or PM-10. EPA explains in the TSD that CAA requirements to show noninterference with reasonable further progress would be satisfied at ratio of 1 to 1. Thus, the 2 to 1 offset ratio is unnecessarily stringent, particularly in light of the additional respects in which the new Clark County NSR rules have significantly increased the rate of progress to attainment. Accordingly, the level of offsets which may be “federally enforceable” as part of the applicable SIP should be limited to offsets in the ratio of 1 to 1 but not any higher ratio.

Response to NMA Comment #3: In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the minimum requirements of the Clean Air Act and our regulations. Section 173(c)(1) of the Act specifies that emissions “shall be offset by an equal or greater reduction, as applicable, in the actual emissions of such air pollutant from the same or other sources in the area.” The Act specifically provides discretion to establish an offset ratio in an amount that is greater than a ratio of 1 to 1. Accordingly, the State's offset program is consistent with, and meets the minimum requirements of, the Act. Moreover, our rationale for approval of the submitted NSR program (and supercession of the existing NSR program) under sections 110(l) and 193 of the Act rely in part on the submitted program's 2 to 1 offset ratio. See the proposed rule at 69 FR at 31061, column 3 (section 110(l) evaluation for CO); 69 FR at 31062, column 1 (section 110(l) evaluation for PM-10); and 69 FR 31064 (section 193 evaluations for CO and PM-10). In this regard, we note that the appropriate comparison for the purposes of sections 110(l) and 193 is between the submitted NSR program and the SIP-approved NSR program (from the early 1980's), not the locally-adopted (but not SIP-approved version) of the NSR program (adopted in December 2001) that is being administered by DAQEM. (The submitted Clark County NSR program (adopted in October 2003) will not be in effect until 30 days after we publish our final approval of the program in the Federal Register .)

NMA Comment #4: EPA proposes to retain in the approved SIP 33 definitions from section 1 (“Definitions”) of the former Clark County rules. EPA states that while these definitions may not affect this NSR action, they may be needed for other existing non-NSR SIP rules. We request that these definitions be deleted because retaining them may create confusion. Two examples include the terms “minor source” and “source of air contaminant.” An additional and separate source of confusion is that the numeric citations for the defined terms do not correspond to the number citations currently used by DAQEM. The proposal to retain section 1 definitions should be withdrawn and all terms should be revised and consolidated into a single regulation that would then be made part of the SIP.

Response to NMA Comment #4: We agree that EPA's approval of a second Clark County rule ( i.e. , CCAQR section 0) entitled “Definitions” into the SIP is not ideal and may cause confusion. However, there should be no confusion in the NSR context because, upon the effective date of our final approval, new or modified sources in Clark County will be subject to the requirements in CCAQR sections 12 and 59 that rely on the ambient standards in CCAQR section 11, the credits in section 58, and the terms defined in CCAQR section 0, such as “nonmajor stationary source” ( see paragraph (c) under “stationary source” in section 0) and will not be subject to the requirements in the Clark County District Board of Health Air Pollution Control Regulations section 15 (referred to herein as “existing SIP section 15” or “SIP section 15”) that rely on the ambient standards in Board of Health Air Pollution Control Regulations section 11 and the terms defined in existing SIP section 1, such as “minor source” and “significant,” since, at that time, SIP section 15 will be entirely superceded in the SIP by CCAQR sections 12 and 59.

For the reasons stated in our proposed rule, at 69 FR at 31067, we continue to believe that the SIP should retain 33 specific defined terms from existing SIP section 1 because other Clark County rules currently approved in the SIP continue to rely on these terms. Clark County and the State of Nevada have not submitted the updated versions (that rely on the defined terms in CCAQR section 0 rather than SIP section 1) of these SIP rules, and until that submittal is made and approved by EPA as a SIP revision, we must retain the 33 specific defined terms from existing SIP section 1 on which these SIP rules rely. Specific examples of existing SIP rules that rely on certain definitions in existing SIP section 1 include the following:

• Clark County District Board of Health Air Pollution Control Regulations ( i.e. , “existing SIP” or “SIP”) section 2 relies on the following terms defined in SIP section 1: “air contaminant,” “air pollution control committee,” “board,” and “source of air contaminant;”

• Existing SIP section 4 relies on the following terms defined in SIP section 1: “air contaminant” and “source of air contaminant;”

• Existing SIP section 5 relies on the following term defined in SIP section 1: “smoke;”

• Existing SIP section 18 relies on the following terms defined in SIP section 1: “minor source” and “single source” and the term “minor source” relies on the term “significant;” and

• Existing SIP section 23 relies on the following terms defined in SIP section 1: “affected facility,” and “integrated sampling.”

Lastly, while we recognize that there is a difference between the numeric references for specific defined terms in the version of section 1 that DAQEM provides on its website and those cited by EPA in our June 2, 2004 proposed rule, the numeric references from the version of section 1 that we cite in the proposed rule are those that we incorporated by reference into the Code of Federal Regulations (CFR) and, as such, reflect the EPA-approved version of SIP section 1. See 40 CFR 52.1470(c)(17)(i) and (ii) and 40 CFR 52.1470(c)(24)(iii) and see also the rules posted for Clark County, Nevada on our Web site at http://www.epa.gov/region09/air/sips. The version of section 1 that Clark County posts on its Web site appears to be a “cleaned-up” version of SIP section 1 in which revision marks have been removed and for which the terms have been renumbered to reflect added and deleted terms. In contrast, the version of SIP section 1 cited by EPA in the proposed rule represents an amalgam of terms approved by EPA at different times in 1981 and 1982. See the related discussion in the proposed rule at 69 FR at 31057, column 1.

NMA Comment #5: By operation of federal law, a portion of Clark County is still designated as a serious nonattainment area for CO; as a result, NSR requirements for nonattainment areas apply. However, the reality is that control of mobile and stationary sources has substantially improved air quality in Clark County, to the point that it now qualifies for redesignation as an attainment area for CO. Such redesignation is now in order. On January 28, 2003, EPA declared that no exceedances of the CO standard had been recorded in Clark County since 1998. Stationary sources are an insignificant source of CO emissions in Clark County and the burdensome nonattainment regulation of stationary sources is no longer necessary to show progress towards or to maintain air quality standards. We therefore request that EPA redesignate the area as expeditiously as possible and, with DAQEM, revise the NSR rules for stationary sources accordingly.

Response to NMA Comment #5: We agree that certain changes in NSR program requirements are allowed once an area has been redesignated from nonattainment to attainment. However, the Las Vegas Valley CO nonattainment area cannot be redesignated to attainment until all of the redesignation criteria set forth in section 107(d)(3)(E) of the Act have been met. In our January 28, 2003 proposed rule on the serious area CO plan (68 FR 4141 at 4142), we cited the record of clean data over recent years from the DAQEM CO monitoring network, but that action did not propose a finding of CO attainment (but did propose approval of the Las Vegas Valley CO attainment plan and vehicle inspection and maintenance program). We expect to propose an attainment finding for CO in the near future, but we note here such a finding is but one of the five criteria that must be met before a CO nonattainment area can be redesignated to attainment. Another criterion relates to approval by EPA of a CO maintenance plan, which EPA understands to be currently under development by Clark County. Upon redesignation, EPA will consider any submitted changes to the requirements under Clark County's NSR program for new or modified stationary sources of CO in light of the County's future CO maintenance strategy.

NMA Comment #6: EPA proposes to evaluate the submitted Clark County NSR program on the basis of Federal NSR regulations that are no longer in effect. This approach creates completely unnecessary and unjustified confusion. The Clark County NSR program should be evaluated based on current Federal NSR regulations. Review and evaluation of Clark County's NSR program based on current Federal NSR regulations is mandated by the CAA.

Response to NMA Comment #6: Our June 2, 2004 proposed rule explains that we evaluated the submitted NSR program against the Federal NSR regulations that were in effect when the rules were being revised to address issues raised by EPA in the wake of the Hall decision. See 69 FR at 31058, column 3. We disagree that this approach creates unnecessary confusion, and we disagree that the Act or our regulations prohibits us from taking this approach. One significant, on-going source of confusion that will be resolved by this final rule will be the need by DAQEM to reconcile the NSR program requirements under the County's adopted (but not EPA-approved) Air Quality Regulations with those under the NSR program approved by EPA as part of the SIP. As it stands now, new or modified stationary sources in Clark County must comply with two sets of NSR rules: current, locally-adopted CCAQR sections 12 and 59 (and related provisions in sections 0, 11, and 58) and SIP-approved section 15 (and related provisions in SIP sections 1 and 11). The submitted NSR program represents a comprehensive revision to Clark County's EPA-approved NSR program from the early-1980's (and contained in sections 1, 11, and 15), and as such, compliance with both sets of rules is at the very least challenging and at worst confounding for the regulated community. Today's final rule will close this “SIP gap” and thereby ease the associated regulatory confusion.

The proposed rule indicated (69 FR 31057, column 3) that our approach does not establish any precedent for evaluating whether a proposed NSR SIP fulfills the requirements of the revised NSR regulations that were published on December 31, 2002. Furthermore, we indicated at 69 FR at 31058, that the NSR revision that is the subject of this action does not relieve Clark County, like other State and local agencies, from adopting and submitting revisions to its SIP-approved NSR rules implementing the minimum program requirements set forth in the revised Federal NSR regulations (published on December 31, 2002) no later than January 2, 2006. Today's final rulemaking simply means that the NSR revisions that are due by January 2, 2006 will be using CCAQR sections 0, 11, 12, 58, and 59, as submitted on October 23, 2003, as the SIP baseline NSR regulatory program instead of the 1980's-era sections 1, 11, and 15. None of the statutory or regulatory provisions cited by NMA require EPA to wait several more years to approve all of the necessary NSR revisions in a single rulemaking.

DAQEM Comment #1: In the discussion of NO X requirements (69 FR 31063), the statement is made that section 12 of the Clark County regulations represents a relaxation of the “control technology requirements for new or modified sources (from LAER to BACT).” In fact, the NSR regulation in the current SIP contains no provisions for NO X nonattainment areas and contains no control technology requirements for NO X (Section 15.14). Thus, superseding that section with the Section 12 imposition of a BACT requirement is actually a strengthening of the NSR rules.

Response to DAQEM Comment #1: We agree that the existing SIP NSR program (sections 1, 11, and 15) has no provisions for NO X nonattainment areas, but we disagree with DAQEM's conclusion that the existing SIP NSR program contains no control technology requirements for NO X . Subsection 15.13.1 sets forth the existing SIP NSR requirements for “all new, reconstructed or modified sources” of NO X “throughout Clark County” and thereby establishes a control technology requirement, at the very least, of best available control technology (BACT) (see subsection 15.13.9.2). Furthermore, we concluded in the proposed rule that SIP subsections 15.14.1 (“all new, or reconstructed, or modified stationary sources * * * of * * * particulate precursors * * * in the Las Vegas Valley * * *”) and 15.14.1.3 (“Each new or modified source * * * shall incorporate * * * lowest achievable emission rate.”) tighten the control technology requirement ( i.e. , to the lowest achievable emission rate (LAER)) for new or modified NO X sources in Las Vegas Valley, not on the basis of NO X as a precursor to nitrogen dioxide (for which the entire county is attainment), but rather as a “particulate precursor,” which is defined in section 1 as “a gaseous air contaminant which can undergo gas-to-particle conversion processes in the ambient air to form particulate matter. Examples: (1) Ammonia, sulfur dioxide, chlorine, and nitrogen oxides can be converted to ammonium sulfate, ammonium nitrate, and ammonium chloride. (2) Volatile organic compounds can be converted to organic and elemental carbon particulate.” See the subsection entitled “Nitrogen Dioxide SIP Planning Considerations,” in the Technical Support Document (TSD) for our proposed action on the submitted Clark County NSR program.

The difference between DAQEM's interpretation and EPA's interpretation of the NO X requirements in Las Vegas Valley under the existing SIP NSR program highlights the ambiguity of the term “particulate precursor.” In our June 2, 2004 proposed rule, we did not recognize this existing SIP term as ambiguous, and evaluated the NO X control requirements in Las Vegas Valley accordingly, but upon reconsideration in light of DAQEM's comment, we have concluded that the term “particulate precursor,” as defined in section 1, is ambiguous because the term refers to examples of the types of gaseous air contaminants that can theoretically lead to secondary particulate formation ( i.e. , can be particulate precursors) rather than to a list of gaseous air contaminants that are in fact significant precursors to particulate under the actual ambient conditions found in Las Vegas Valley. 3

Given the ambiguity we now recognize in the term “particulate precursor,” as used for the purposes of the existing SIP NSR program, we conclude that, while it is clear that at least BACT-level of control is required for all new or modified NO X sources throughout Clark County, it is unclear whether the most stringent control technology requirement (LAER) applies to new or modified NO X sources in Las Vegas Valley under the existing SIP NSR program. However, this uncertainty only strengthens our conclusion from the proposed rule, that despite the incremental relaxation in the control technology requirement in Las Vegas Valley for new or modified NO X sources (a relaxation that we now recognize as uncertain), supercession of the existing SIP NSR program by the submitted NSR program would not interfere with continued attainment of the nitrogen dioxide NAAQS or any other applicable requirement of the Act. See our proposed rule at 69 FR at 31063, column 1.

NEC Comment #1: Two of the applicable requirements that would be violated with the approval of the submitted NSR program as a SIP revision are CAA sections 116 and 193. The logic of sections 116 and 193 is very clear. When an existing plan fails to result in the attainment of the NAAQS, no subsequent revision of the plan's requirements can be less stringent than the rules that have already failed to result in attainment. With EPA's continued assistance, DAQEM is again proposing regulations that are less stringent than those that have already failed to result in attainment of the NAAQS. EPA has failed to address section 116 requirements in their entirety in the proposed rule and TSD and proposes approval of the submitted NSR program despite an admission of relaxations in its section 193 discussion of CO and PM-10.

Response to NEC Comment #1: NEC contends that CAA section 116 requires that SIP revisions that would supercede pre-existing EPA-approved SIP rules be no less stringent than those EPA-approved SIP rules individually or collectively. NEC contends that EPA has ignored the requirements of CAA section 116, but NEC misreads CAA section 116. Section 116 provides:

NEC's reading of section 116 as imposing requirements for SIP revisions or a blanket prohibition on relaxation of SIPs would be inconsistent with CAA sections 110(l) and 193, which specify the criteria to be applied in evaluating SIP revisions. In pertinent part, CAA section 110(l) provides:

CAA section 110(l) does not preclude SIP relaxations but requires that relaxations not interfere with specified requirements of the Act including requirements for attainment and reasonable further progress. Thus, if an area can demonstrate that it will continue to attain or maintain the NAAQS and meet any applicable reasonable further progress goals or other specific requirements, it may revise SIP provisions, even if the revision amounts to a relaxation. See Hall v. EPA, 273 F.3d 1146, 1160 (9th Cir. 2001) (explaining that to make a finding under CAA section 110(l), “EPA must be able to conclude that the particular plan revision before it is consistent with the development of an overall plan capable of meeting the Act's attainment requirements.”). Our proposed rule provides a detailed evaluation of the submitted NSR program under section 110(l). We have compared the submitted NSR program and the EPA-approved ( i.e. , existing SIP) NSR program that it would replace and evaluated the effect of the changes to the NSR program within the context of ambient air quality trends and compliance with CAA attainment planning requirements. We conclude that replacement of the existing SIP NSR program with the submitted NSR program would not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the Act. See 69 FR at 31060-31063.

Even if a SIP revision is approvable under section 110(l), CAA section 193 imposes additional restrictions on modifications to certain SIP control requirements in nonattainment areas that were in effect prior to the 1990 Clean Air Act Amendments (“pre-1990 control requirements”). In pertinent part, CAA section 193 provides:

Thus, while NEC's interpretation of CAA section 116 as providing a broad prohibition against SIP relaxations is erroneous, CAA section 193 does limit nonattainment areas from backsliding from the emissions reductions achieved by pre-1990 control requirements. In our proposed rule, we provide a detailed evaluation of the submitted NSR program under CAA section 193. See 69 FR at 31063-31065. In that evaluation, which covers the two pollutants (CO and PM-10) for which Las Vegas Valley was designated nonattainment at the time of the 1990 CAA Amendments and remains so designated, we indicate specific instances where the requirement under the submitted NSR program, such as the control technology requirement for minor sources, would be less stringent (BACT) than under the existing SIP NSR rules (LAER). Thus, we acknowledge the relaxation of certain program elements, but our evaluation under CAA section 193 does not end there. We evaluated the NSR programs as a whole taking into account all of the programs' elements (such as the control technology requirements, major stationary source thresholds, offset ratios, etc.) in concluding that the submitted NSR program will result in equivalent or greater mitigation of CO and PM-10 emissions increases due to new source growth relative to the existing SIP NSR program. 4

Thus, in summary, EPA concludes that although the SIP revision does relax certain CO and PM-10 provisions of the NSR program, the SIP revision as a whole satisfies section 110(l) because it is consistent with the area's overall control strategy, which takes into account ambient trends and CAA planning requirements and which was recently approved by EPA in separate rulemakings (see response to NEC comment #6), and it satisfies section 193 because the submitted NSR program provides equivalent or greater mitigation of emissions increases compared to the existing SIP NSR program.

NEC Comment #2: Clark County was recently declared a nonattainment area for ozone. The relaxations in proposed controls for the ozone precursor pollutants (volatile organic compounds (VOC) and NO X ) that are in the proposed SIP are a relaxation from the existing SIP. The situation is similar to the relaxations for CO and PM-10. Instead of dealing with the issue, EPA has chosen to keep that relaxation from the discussion.

Response to NEC Comment #2: Contrary to NEC's contention, the regulatory context for review of the submitted Clark County NSR program is different for ozone than for CO or PM-10. For the latter pollutants, the nonattainment designations were re-affirmed by the 1990 CAA Amendments and continue to the present day. In contrast, for ozone, prior to the 1990 CAA Amendments, implementation of an effective control strategy for the only ozone NAAQS then in existence (the 1-hour ozone NAAQS) led to our redesignation of Las Vegas Valley from nonattainment to attainment. Las Vegas Valley continues to attain the 1-hour ozone NAAQS to the present day. In 1997, EPA promulgated a revised NAAQS for ozone based on an 8-hour average. Following significant legal challenges to the 8-hour ozone NAAQS, we promulgated designations earlier this year for all areas of the country for the 8-hour ozone NAAQS, and Clark County was one of the areas that we designated as nonattainment. (The 1-hour ozone NAAQS continues to be in effect until June 2005 when it will be revoked.) In our proposed rule, we acknowledge this recent designation for the 8-hour ozone NAAQS at 69 FR 31062, column 3. More recently, we deferred the effective date of the designation until September 13, 2004 to allow the State the opportunity to provide us with information that would support a nonattainment area boundary other than the county boundary. See 69 FR 34076 (June 18, 2004). A nonattainment designation triggers certain CAA requirements and will lead to future SIP revisions that must be submitted prior to dates yet to be established by EPA.

We provide a section 110(l) evaluation in our June 2, 2004 proposed rule of the submitted NSR program with respect to the ozone NAAQS. See 69 FR at 31062-31063. In that discussion, we acknowledge certain incremental relaxations in the VOC control technology requirement but, similar to our discussion of PM-10 and CO, we conclude that other aspects of the overall NSR submittal provide us with the basis to conclude that the submitted NSR program (and supercession of the existing SIP NSR program) would not interfere with attainment and reasonable further progress towards attainment of the ozone NAAQS, or any other requirement under the Act. In support of this conclusion in the case of the ozone NAAQS, we point to the following: (1) The submitted NSR program would replace a “potential-to-potential” test with the “actual-to-potential” test for evaluating proposed stationary source modifications with the result that a greater number of modifications would be subject to new source review (and thereby to the control technology requirements, etc.) under the submitted NSR program than under the existing SIP NSR program (see 69 FR 31061, column 1); (2) significant Clark County non-NSR SIP rules and EPA motor vehicle tailpipe and fuel regulations that regulate VOC emissions would be unaffected by this action (see 69 FR 31062, column 3); (3) the relaxation under the submitted NSR program with respect to the VOC control technology requirement for minor VOC sources in Las Vegas Valley would be incremental (LAER to BACT) instead of total (LAER to uncontrolled) (see, generally, 69 FR at 31064, column 2); and (4) there would be an incremental strengthening (BACT to LAER) under the submitted NSR program of the VOC control technology requirement for new or modified major VOC sources in areas generally upwind of Las Vegas Valley (see 69 FR 31062).

Although the CAA section 110(l) evaluation summarized above was prepared in connection with the 1-hour ozone NAAQS, the same rationale also applies to the 8-hour ozone NAAQS. Thus, in summary, EPA concludes that although the SIP revision does relax certain VOC provisions of the NSR program, the SIP revision as a whole satisfies section 110(l) because it is consistent with the area's EPA-approved ozone control strategy, and because, given the trade-offs concerning VOC requirements between the two programs as discussed above and the inherent difficulty in determining with precision the net effect on VOC emissions of replacement of the existing SIP NSR program with the submitted NSR program (which would depend upon assumptions regarding the number and potential-to-emit of future new and modified sources in addition to their proposed locations within Clark County), we believe that it is reasonable to conclude that the submitted NSR program provides equivalent or greater mitigation of VOC emissions increases compared to the existing SIP NSR program.

The State and Clark County developed the approved ozone control strategy to attain the 1-hour ozone NAAQS, but it also serves as the base control strategy from which the State and Clark County will develop an 8-hour ozone control strategy. EPA will be establishing the schedule that the State and Clark County must follow to develop an 8-hour control strategy in a final rule implementing the 8-hour ozone NAAQS.

NEC Comment #3: EPA accepts relaxations in control technology requirements by discussing NSR offset requirements. Offset requirements are completely different than control requirements. Over the past 20+ years since approval of the existing SIP NSR program, neither EPA nor DAQEM have required or enforced the offset requirement in Clark County, despite numerous sources that have triggered the requirement, and for that reason, the public does not have much confidence that either will now start enforcing it. As a result, the offsets requirements that EPA relies on in the proposed approval amount to “paper only” emissions reductions.

Response to NEC Comment #3: In our proposed rule, we rely on the offset requirements in the submitted NSR program to mitigate the higher level of emissions from new or modified sources that might otherwise occur from a more stringent control technology requirement ( e.g. , LAER for minor sources) than the submitted program (BACT for minor sources). We also note the improved regulatory structure of the new NSR rule that clearly specifies the “quality” of offsets required. By “quality,” we refer to the requirements, such as those set forth in CCAQR section 59, subsection 59.4, that emission reductions used to satisfy a Federal offset requirement must be surplus, permanent, quantifiable and federally enforceable, as those terms are defined in CCAQR section 0. 5 From a practical standpoint, the added regulatory clarity should enhance compliance with the requirements by permit applicants as well as enforcement of those requirements by DAQEM and EPA.

NEC Comment #4: The discussion regarding Clark County's local, road paving, and offset credit program fails to discuss the fact that the program has been a misleading program all along. The offset credits under the local program cannot be replicated because they are not real. The local offset program was never intended to reduce air pollution. Despite this, the EPA and DAQEM continue to support the local emission reduction credit program used by favored sources to evade Federal offset requirements that EPA and DAQEM say are part of the submitted NSR rules.

Response to NEC Comment #4: As discussed above in response to NMA comment #1, DAQEM and the State requested EPA to withdraw the approval of subsection 59.2 as part of the SIP. As a result, we no longer have authority to act on subsection 59.2 (“Local Offset Requirements”), and subsection 59.2 will therefore not be approved into the SIP. Subsection 59.2 (specifically, subsection 59.2.7.1) contains the provisions allowing use of Road Paving Credits as PM-10 offsets. In accordance with CCAQR regulations (see CCAQR subsection 59.2.1), the Road Paving Credits are not available for use by new major sources or major modifications of PM-10 to comply with Federal offset requirements. We are therefore not addressing the issue of whether those credits would hypothetically be valid in meeting Federal offset requirements. As we state in response to NEC comment #4, we expect that the more detailed specifications in submitted CCAQR section 59, subsection 59.4 (and the related definitions set forth in CCAQR section 0) regulating the creation and use of emissions reductions for the purposes of satisfying the offset requirements will enhance both compliance and enforcement efforts compared to the existing SIP NSR program.

NEC Comment #5: One way to ascertain if reasonable further progress has been made is to review air quality in 1980 and compare it to today. The Las Vegas Valley was in nonattainment for particulate matter, ozone, and CO in 1980. As of the writing of this comment, some of the rules were changed, but the valley remains in nonattainment for all three pollutants.

Response to NEC Comment #5: The Clean Air Act defines “reasonable further progress” as “such annual incremental reductions in emissions of the relevant air pollutant as are required by this part or may reasonably be required by the Administrator for the purpose of ensuring attainment of the applicable national ambient air quality standard by the applicable date.” See CAA section 171(1). Thus, reasonable further progress (RFP) is judged from an emissions standpoint and does not correlate directly to ambient concentrations, which reflect meteorological conditions that vary from year to year as well as emissions trends. However, over the long term, as NEC suggests, the trend in concentrations should be downward if there has in fact been “reasonable further progress.” In Las Vegas Valley, as discussed on a pollutant-by-pollutant basis in the following paragraphs, the monitoring data shows improvement for all three pollutants for which Las Vegas Valley is, or was, nonattainment, i.e. , CO, particulate matter (TSP and PM-10), and (one-hour) ozone, relative to conditions that prevailed in the valley in the late 1970's and early 1980's.

Carbon Monoxide. In the late 1970's and early 1980's, the 1982 Air Quality Implementation Plan Update (June 1, 1982) indicates that the number of days per year during which an exceedance of the CO NAAQS was recorded was about 30. In contrast, since 1998, there have been no recorded exceedances of the CO NAAQS. See our proposed approval of the 2000 Las Vegas Valley serious area CO SIP at 68 FR 4141, at 4142, column 1 (January 28, 2003). The carbon monoxide control strategy has relied primarily on Federal motor vehicle emissions standards, wintertime State and local fuel specifications, and an “enhanced” vehicle inspection and maintenance program to improve CO conditions in Las Vegas Valley. In our June 2, 2004 proposed rule, we discuss how the submitted NSR program is consistent with the CO control strategy and the serious area CO SIP (which we recently approved). See 69 FR at 31061, column 3 and 31062, column 1.

Particulate Matter. During the 1977 through 1979 period, the number of days per year during which an exceedance of the particulate matter NAAQS (then defined in terms of total suspended particulate (TSP)) was recorded averaged 14 based on summaries of monitoring data compiled for the Revised Air Quality Implementation Plan (November 18, 1980). The particulate matter NAAQS was revised to refer to PM-10, rather than TSP, in 1987, so a direct comparison between current conditions and those in the late 1970's is not possible. Nonetheless, a comparison between the older TSP data and the current PM-10 data provides a rough, if imprecise, basis for evaluating relative progress in reducing particulate matter concentrations in the valley over time. In that regard, we note that, during the 1997 through 1999 period, the number of days per year during which an exceedance of the PM-10 NAAQS was recorded averaged 10 based on data compiled for the PM-10 State Implementation Plan for Clark County (June 2001). Thus, while progress in attaining the particulate matter NAAQS has been slow, the approved 2001 PM-10 attainment plan is the first Las Vegas Valley plan to contain a comprehensive set of regulations addressing fugitive dust sources, the predominant sources of ambient PM-10 in the valley. We approved the fugitive dust regulations, CCAQR sections 90 through 94, as part of the final rule approving the 2001 Las Vegas Valley PM-10 attainment plan. See 69 FR 32273 at 32276 (June 9, 2004). Also as part of the 2001 PM-10 attainment plan approval, we approved the demonstration of attainment of the PM-10 NAAQS in Las Vegas Valley by the end of 2006. In our June 2, 2004 proposed rule, we discuss how the submitted NSR program is consistent with the PM-10 control strategy and serious area PM-10 attainment plan (which we recently approved). See 69 FR at 31062, columns 1 and 2.

Ozone. During the 1980 through 1983 period, the number of days per year in which an exceedance was recorded varied from 1 to 14 based on data contained in the Air Quality Implementation Plan, Post 1982 Update (July 1984). By the mid-1980's, the 1-hour ozone NAAQS had been attained in Las Vegas Valley, and EPA redesignated the area as an “attainment” area for the 1-hour ozone NAAQS in 1986. See 51 FR 41788 (November 19, 1986). The ozone control strategy relied primarily on Federal motor vehicle emissions standards and local stationary source regulations, including, among others, Clark County District Board of Health Air Pollution Control Regulation Section 33 (“Chlorine in Chemical Processes”). Our proposed rule on the submitted NSR program, at 69 FR at 31062, column 3, notes that, since 1986, peak ozone levels have remained relatively constant at 0.09 parts per million (ppm) to 0.10 ppm, but peak levels in recent years have approached the 1-hour ozone NAAQS of 0.12 ppm. In our proposed rule, we discuss how the submitted NSR program is consistent with the 1980's-era 1-hour ozone control strategy. See 69 FR at 31062, columns 2 and 3, and 31063, column 1.

As noted in response to NEC comment #2, EPA recently designated Clark County as a nonattainment area for the 8-hour ozone NAAQS (promulgated by EPA in 1997) but deferred the effective date for that designation until September 13, 2004. Upon the effective date of the new designation, certain changes in the Clark County NSR program will be required under either the submitted or existing SIP NSR program ( e.g. , LAER and offsets for VOC and NO X major sources and major modifications throughout Clark County or designated subportion thereof).

NEC Comment #6: DAQEM has yet to produce an accurate and comprehensive emissions inventory for the nonattainment area. DAQEM uses air quality calculations that are not credible in order to justify the desired paper-only end result. For example, the emissions inventory from the “moderate area” plans from the mid-1990's show little resemblance to the current “serious area” plans. A specific instance is demonstrated by the PM-10 emissions estimates from vacant land that doubled between the “moderate area” PM-10 plan, which was withdrawn, and the “serious area” PM-10 plan. It is also not credible that the plans project lower emissions despite a population that has tripled in 20 years. Also, certain emissions sources are completely missing from the inventories, such as new power plants and a proposed airport.

The amount of industry emissions has increased since 1979 and for that reason alone, LAER triggers should not be relaxed. We cannot go from LAER to less than that without having an impact on attainment. PM-10 emissions have not been reduced in reality. DAQEM has utilized drastically lower emission factors to estimate emissions. There is no justification for the data presented in the proposed approval. Industry has grown but the emissions inventory does not show the same increase in emissions since the emission factors have been reduced.

Another trick DAQEM has mastered over the years is the manipulation of the choice of monitoring sites and management's ability to shut down monitors just as they appear to reach the level of NAAQS exceedances. DAQEM places only the official monitors in areas of the valley that have proven through previous monitoring to rarely report exceedances.

According to CAA section 188(e), the “serious area” PM-10 attainment date may also be extended if the rules are followed. Clark County has not followed the rules. One criteria for an extension is that the plan for the area includes the most stringent measures that are included in the implementation plan of any State or are achieved in practice in any State. The EPA has admitted that many of the control and offset requirements of the proposed plan are not as stringent as the existing plan. DAQEM has noted that most sources in the nonattainment area are non-major sources. It is these non-major sources that represent the majority of emissions whose emissions are being relaxed the most by the proposed regulation. For all of the reasons herein, we object to the proposed 5-year extension to 2006 for attainment.

Response to NEC Comment #6: NEC objects to several aspects of the Las Vegas Valley CO and PM-10 attainment plans, including the characterizations of baseline ambient conditions based on data from the monitoring network, the emissions inventories, the control measures, and the attainment demonstrations. We are taking no action today related to these plans but do recognize that, in our June 2, 2004 proposed rule on the submitted NSR program, our rationale for determining that the submitted NSR program would not interfere with attainment of the CO and PM-10 NAAQS under section 110(l) of the Act was based in part on our evaluations, and proposed approvals (in separate notices published in January 2003), of the CO and PM-10 attainment plans. See 68 FR 4141 (January 28, 2003) (CO plan proposed approval) and 68 FR 2954 (January 22, 2003) (PM-10 plan proposed approval).

Specifically, in our section 110(l) evaluation for CO, we based our conclusion in part on our previous evaluation and proposed approval (in the January 28, 2003 notice) of the CO attainment plan's inventories, including how those inventories account for stationary sources, our proposed approval of the plan's conclusion that stationary sources are not a significant contributor to CO levels in the valley, and our proposed approval of the attainment demonstration with reliance on on-road motor vehicle measures ( e.g. , emissions standards, fuels, an inspection and maintenance program, and transportation control measures) not stationary source controls. See 69 FR at 31061-31062 and the related discussion in the TSD on our proposal on the submitted NSR program at pages 31 through 37.

With respect to PM-10, we based our conclusion in part on our evaluation and proposed approval (in the January 22, 2003 notice) of the PM-10 attainment plan's inventories, including how those inventories account for stationary source emissions, the plan's conclusion that stationary sources are not a significant contributor to PM-10 NAAQS violations in the valley, and the plan's attainment demonstration based on implementation of new fugitive dust controls, not stationary source controls.

Subsequent to publication of our June 2, 2004 proposed rule on the submitted NSR program, we took final actions, after due consideration of public comments, to approve the inventories and strategies in the CO and PM-10 attainment plans, and thus, our continued reliance on those plan elements in support of today's final approval of the submitted NSR program under section 110(l) is appropriate. (The final rule approving the CO plan was signed on July 23, 2004 but has not yet been published in the Federal Register ; the final rule approving the PM-10 plan was published at 69 FR 32273 (June 9, 2004).)

Most of the specific issues raised by NEC on the attainment plans in this comment were raised previously in the context of our January 2003 proposed approvals on the CO and PM-10 plans, and thus, we rely primarily on our consideration of those comments as documented in the Response to Comments Documents prepared in conjunction with our final actions on the plans but also address newly-raised issues in the following paragraphs, which are organized by general subject matter.

Lack of Accurate and Comprehensive Emissions Inventories for the Nonattainment Area: We disagree with this contention and believe that the baseline inventories in these plans represent comprehensive, accurate, and current estimates of actual emissions in the nonattainment area for the reasons set forth in our Response to Comments Documents for the CO and PM-10 attainment plan approvals. See CO Plan Final Rule Response to Comments Document, responses to NEC comments 12, 14, and 17 through 23; and PM-10 Plan Final Rule Response to Comments Document, pages 7 through 13.

Emissions Trends Inversely Proportional to Population Growth: For CO, through 2010, the beneficial effect of motor vehicle and fuel-related CO control measures on CO emissions will more than offset region-wide increases in vehicle-miles-traveled and thereby provide for a net downward trend in CO emissions. See CO Plan Final Rule Response to Comments Document, response to NEC comment #6. For PM-10, the explanation lies in the adoption, implementation, and enforcement of a comprehensive set of regulations (Clark County sections 90 through 94) that address the sources of approximately 90% of the PM-10 emissions inventory in Las Vegas Valley, i.e. , fugitive dust sources, including open areas, vacant lots, unpaved roads, unpaved alleys, and unpaved easement roads, unpaved parking lots, paved roads and street sweeping equipment, and construction activities. See the TSD for our proposed rulemaking on the submitted NSR program under the subsection entitled “PM-10 SIP Planning Considerations.”

Significant Differences in Current Emissions Estimates Compared to Estimates Published in Previous Plans: Changes in EPA-approved emissions calculation procedures and models necessitate a re-figuring of emissions in updated plans, and the emissions estimates in the current CO and PM-10 plans are well documented and represent an improvement over the corresponding estimates in previous submitted plans. See CO Plan Final Rule Response to Comments Document, response to NEC comment #12; and PM-10 Plan Final Rule Response to Comments Document, responses to comments #7, #8 and #11.

Stationary Source Trends: For CO, the attainment plan reasonably assumes that emissions from major sources would remain unchanged after the baseline date (1996) due to the offset requirement for such sources but assumes that emissions from minor sources would increase in proportion to growth projections for the manufacturing sector. See CO Plan Final Rule Response to Comments Document, response to NEC comment #22. For PM-10, the attainment plan reasonably assumes that emissions from stationary sources would remain relatively constant from 1998 through the attainment year (2006) as the growth in PM-10 emissions that would otherwise be expected to occur roughly in proportion to population is offset by the combination of the application of LAER (all new major stationary sources and major modifications) or BACT (all other new stationary sources and modifications) and the expected downturn in two important PM-10 stationary source categories (sand and gravel operations and asphalt concrete manufacturing) due to declining rates of population growth and associated construction activity. See the TSD for our proposed rulemaking on the submitted NSR program under the subsection entitled “PM-10 SIP Planning Considerations.”

Inadequate Monitoring Network: We disagree with this contention and conclude in our final actions on the CO and PM-10 plans that the data from the monitoring network were sufficient for development of the attainment plans although we acknowledge certain deficiencies in the monitoring network that Clark County is in the process of fixing. See CO Plan Final Rule Response to Comments Document, responses to NEC comment #8; and PM-10 Plan Final Rule Response to Comments Document, pages 2 through 7.

Extension of PM-10 Attainment Date and Most Stringent Measures (MSM) Evaluation: We believe that Clark County has adequately identified the significant source categories for which best available control measures (BACM) and most stringent measures (MSM) must be provided, has demonstrated that adopted BACM and MSM are being implemented as expeditiously as practicable, and has provided adequate technological or economic justifications for rejecting additional control measures that theoretically could have provided for a 2001 attainment date. See PM-10 Plan Final Rule Response to Comments Document, pages 30 through 37 and pages 40 through 42. Finally, we note that NSR itself is not a “measure” that need be considered as a “most stringent measure” under section 188(e). NSR affects new or modified sources whereas BACM and MSM represent measures to reduce emissions from existing sources. We note that any revisions to an NSR program, such as the replacement of a LAER requirement by a BACT requirement for non-major (minor) sources, applies only prospectively, and that, for example, air permits that apply LAER level of control for non-major sources and issued prior to the change in the NSR program would not be affected by the change in the NSR program. That is, the permit condition or conditions that apply LAER to the given source remain enforceable after the change in the NSR program. Only new sources and source modifications that receive permits after the effective date of the change in the NSR program would be affected.

NEC Comment #7: If actual credible data was reported, the Apex Valley would have been declared a nonattainment area years ago. Instead, the EPA is helping DAQEM develop another relaxation of the regulations in the form of process called a “Natural Events Action Plan” (NEAP). The NEAP's sole purpose to cast out data that does not fit the pre-conceived outcome that the EPA and DAQEM have projected for health-based NAAQS. We do not believe that the NEAP has any lawful statutory basis and the practice is highly misleading. We reaffirm our request for full NEAP disclosure without further delay.

Response to NEC Comment #7: In light of this comment, we have reconsidered our evaluation of the submitted NSR program under section 110(l) as it relates to PM-10 emissions in Apex Valley, and we now believe that our conclusion in the proposed rule that there would be an incremental relaxation in NSR requirements under the submitted NSR program (relative to the existing SIP NSR program) in that area with respect to PM-10 but that such relaxation would be acceptable in part because of the future development of a Natural Events Action Plan was in error. We no longer believe it appropriate to rely on the development of a Natural Events Action Plan for Apex Valley to support our revised evaluation. As explained further below, our evaluation of the submitted NSR program was predicated on a mistaken interpretation of the PM-10 requirements for new or modified sources in Apex Valley under the existing SIP NSR program. Our revised interpretation of the existing SIP NSR requirements in Apex Valley has not changed our basic conclusion, i.e. , that the submitted NSR program would not interfere with attainment of the PM-10 NAAQS under section 110(l) of the Act, but it has changed the underlying rationale for that conclusion.

In the proposed rule, we relied solely on existing SIP subsection 15.14.1 to conclude that the requirements of subsection 15.14 (such as LAER and, for some sources, offsets) apply to new or modified sources of PM-10 in Apex Valley. In pertinent part, subsection 15.14.1 states: “This section applies to all new, or reconstructed, or modified stationary sources of * * * particulate * * * proposing to locate: (1) in the Las Vegas Valley, or * * * (3) in any other area in Clark County in which the air quality standards are exceeded ” (emphasis added). We interpreted subsection 15.14.1 as extending the requirements of that subsection ( i.e. , LAER, and in some cases, offsets) outside of the designated nonattainment area ( i.e. , Las Vegas Valley) to Apex Valley because Apex Valley had become an area in Clark County in which the air quality standards are exceeded by virtue of the fact that PM-10 NAAQS exceedances have been recorded in that area in recent years. (The current designations under section 107(d) of the Act for the two hydrographic areas (#216 and #217) that comprise Apex Valley are “unclassifiable” for the PM-10 NAAQS, see 40 CFR 81.329, and EPA has not initiated the process to redesignate either one of the areas to “nonattainment.”)

Upon reconsideration, we now believe that our sole reliance on subsection 15.14.1 was mistaken. We should have also considered existing SIP subsection 15.13.1, and the definition of “nonattainment area” in existing SIP section 1, and in so doing, we find that the phrase “ in any other area in Clark County in which the air quality standards are exceeded ” in subsection 15.14.1 is correctly interpreted to refer to an area that has been established as a “nonattainment area” by the Governor of Nevada and not just any area in which a monitor has recorded exceedances of the standard.

Existing SIP subsection 15.13 requires BACT level of control but does not require offsets. In pertinent part, existing SIP subsection 15.13.1 specifies that subsection 15.13 “applies to all new, reconstructed, or modified sources of * * * particulate * * * in the attainment areas of Clark County ” (emphasis added). Existing SIP section 1 (“Definitions”) does not define the term “attainment area” but does so by negative implication by defining the term, “non-attainment area,” to be “an area which has been determined to exceed any national ambient air quality limit for any pollutant for which there is a standard. The Non-attainment Area for Clark County, Nevada has been established by the Governor of the State of Nevada and such area coincides with the boundaries of the Hydrographic Area 212 (Las Vegas Valley) as reported in the document “Water Resources—Information Series—Report 6” issued by the Nevada State Engineer's Office in September, 1968. By negative implication, an “attainment area” then is an area that has not been determined to exceed a given NAAQS through a process involving the Governor. As such, subsection 15.13, rather than subsection 15.14, applies to new or modified PM-10 sources in Apex Valley under the existing SIP NSR program because it is comprised by two areas that remain designated as “unclassifiable” for the PM-10 NAAQS (in this context, “unclassifiable” and “attainment” represent designations with equivalent regulatory requirements), and although exceedances of the PM-10 NAAQS have been measured there, Apex Valley has not been “determined to exceed” through any process involving the State of Nevada or, more specifically, the Governor and thus does not represent an “ area in Clark County in which the air quality standards are exceeded ” for the purposes of subsection 15.14.

This revised interpretation is supported by the recognition of some of the enforceability problems that flow from our previous interpretation. These problems include lack of fair notice to regulated sources as to when the requirements under subsection 15.14 ( i.e. , LAER and, in some cases, offsets) are triggered for new sources and modifications ( e.g. , it could be upon one exceedance, or sufficient exceedances to constitute a violation of the NAAQS, or some other triggering event), when the requirements no longer apply ( e.g. , after a year of clean data or some other indication that the area no longer is exceeding the standard), and what area is affected ( e.g. , the immediate area surrounding the monitoring station, the section 107(d) area (codified in 40 CFR part 81, subpart C) in which the monitor is located, or the entire valley in which the monitor is located, which in this case involves two section 107(d) areas, or some other geographic area). Any process under which the Governor makes a determination that a NAAQS is exceeded in a given area would invariably identify an effective date, identify criteria for “attaining” the standard once again, and delineate boundaries for the affected area, and thereby avoid the enforceability problems associated with our previous interpretation.

With the revised interpretation of the requirements for new or modified PM-10 sources in Apex Valley under the existing SIP NSR program, we now find that there would be no relaxation in either the control technology requirement (BACT applies under both the existing SIP and submitted NSR programs) or offset requirement (none under either program) and thus approval of the submitted NSR program would not interfere with attainment of the PM-10 NAAQS in Apex Valley. Since our revised rationale for approving the submitted NSR program under section 110(l) as it relates to PM-10 in Apex Valley rests fundamentally on an interpretation of existing regulatory requirements, we are not required to conduct supplemental notice and comment due to the exemption for interpretive rules under section 553(b) of the Administrative Procedure Act.

If, and when, EPA redesignates Apex Valley, or some portion thereof, to nonattainment for PM-10 under section 107(d) of the Act, then the Clark County portion of the Nevada SIP will need to be revised to provide for, among other things, implementation of reasonably available control measures (RACM) to reduce emissions from existing PM-10 sources. In addition, the Clark County NSR program will need to be revised to require LAER and offsets for new major sources and major modifications proposing to locate in the area so designated.

NEC Comment #8: We object to EPA's failure to implement a Federal Implementation Plan (FIP) under section 110(c)(1).

Response to NEC Comment #8: We acknowledge that our deadlines for promulgating CO and PM-10 “serious area” FIPs under section 110(c)(1)(A) of the Act have passed, but our authority to promulgate them under that section has also now expired, with the exception of CO contingency provisions, due to our recent final actions approving the CO and PM-10 plans for Las Vegas Valley. Our decision not to take final action on the CO contingency provisions has no effect on our final action today on the submitted NSR program.

As authorized under section 110(k)(3) of the Act, EPA is partially approving and partially disapproving the revised Clark County NSR program. Our final action is a partial approval because we are approving submitted CCAQR sections 0, 11, 12 (except subsections 12.2.18 and 12.2.20), 58, and 59 (except subsection 59.2, which was withdrawn) and submitted State regulation NAC 445B.22083, based on our determination that these rules comply with relevant CAA requirements for permitting of new or modified stationary sources in Clark County and that supercession of related existing SIP provisions ( i.e. , parts of section 1 and all of sections 11 and 15) is consistent with section 110(l) and 193 of the CAA. That is, we have determined that supercession of the existing SIP Clark County NSR program with the submitted NSR program will not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the Act, consistent with section 110(l) as interpreted by the Ninth Circuit in Hall v. EPA, and will provide for equivalent or greater emission reductions of nonattainment pollutants as called for in CAA section 193. This action incorporates the rules, or portions of rules, that we are approving into the Nevada SIP. Furthermore, our approval of the submitted NSR program provides us with the basis to withdraw EPA's nonattainment area visibility FIP authority as it relates to new source review by DAQEM in Clark County (see 40 CFR 52.1488(b)).

This final approval of section 0 (“Definitions”), as submitted on October 23, 2003, in its entirety results in the supercession of all of the definitions in existing SIP section 1 (“Definitions”) except for the following 33 terms: Affected Facility (1.1), Air Contaminant (1.3), Air Pollution Control Committee (1.6), Area Source (1.11), Atmosphere (1.12), Board (1.16), Commercial Off-Road Vehicle Racing (1.23), Dust (1.26), Existing Facility (1.28), Existing Gasoline Station (1.29), Fixed Capital Cost (1.30), Fumes (1.36), Health District (1.40), Hearing Board (1.41), Integrated Sampling (1.44), Minor Source (1.50), Mist (1.51), New Gasoline Station (1.57), New Source (1.58), NIC (1.60), Point Source (1.70), Shutdown (1.78), Significant (unnumbered), Single Source (1.81), Smoke (1.83), Source of Air Contaminant (1.84), Special Mobile Equipment (1.85), Standard Commercial Equipment (1.87), Standard Conditions (1.88), Start Up (1.89), Stop Order (1.91), Uncombined Water (1.95), and Vapor Disposal System (1.97). Also, this final approval of section 0 results in the supercession of all 29 of the section 0 definitions that were submitted to EPA on July 23, 2001 as part of the Las Vegas PM-10 attainment plan and approved by EPA on June 9, 2004 (see 69 FR 32273, at 32277). 6

Our action also constitutes a partial disapproval because we are disapproving submitted CCAQR section 12, subsections 12.2.18 and 12.2.20, and submitted CCAQR section 52, subsection 52.8. We are disapproving submitted CCAQR section 12, subsections 12.2.18 and 12.2.20, which relate to regulation of hazardous air pollutants, as inappropriate for inclusion in the SIP. 7 We are disapproving submitted CCAQR subsection 52.8 because it cannot be evaluated properly in the absence of a SIP submittal of the entire rule ( i.e. , CCAQR section 52). These disapproved rules are not incorporated into the SIP. No sanctions flow from this partial disapproval action under section 179 of the Act because the disapproved provisions do not constitute required SIP submissions.

Second, in recognition of the vacature of our approval of previous versions of the Clark County NSR rules in Hall v. EPA, we are deleting 40 CFR 52.1470(c)(36) and (37).

Third, under section 110(k)(6), we are correcting certain provisions of the Clark County portion of the Nevada SIP that we approved in error and are revising certain provisions of the Clark County portion of the Nevada SIP that warrant clarification. Specifically, we are deleting SIP section 1, subsections 1.79 (Significant source of total chlorides) and 1.94 (Total Chlorides); SIP section 15 (Prohibition of Nuisance Conditions); SIP section 29 (Odors in the Ambient Air); SIP section 40, subsection 40.1 (Prohibition of Nuisance Conditions); SIP section 42, subsection 42.2 (untitled but related to nuisance from open burning); and SIP section 43, subsection 43.1 (Odors in the Ambient Air), from the appropriate paragraphs of section 1470 (“Identification of plan”) of 40 CFR part 52, subpart DD (Nevada). This action deletes these rules from the federally enforceable SIP. We are adding paragraphs to 40 CFR 52.1483 (“Malfunction regulations”) to clarify that former SIP section 12 (Upset, Breakdown, or Scheduled Maintenance) and submitted section 25.1 (untitled, but related to upset, breakdown, or scheduled maintenance) have been disapproved and are not part of the applicable SIP. 8 Lastly, we are revising the 40 CFR 52.1470(c)(33) to clarify that SIP section 33 (Chlorine in Chemical Processes) was, and continues to be, approved into the Nevada SIP as part of our approval of the overall post-1982 ozone plan for Las Vegas Valley.

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 8, 2004. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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

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

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

(iii) The initials NAAQS mean National Ambient Air Quality Standard.

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

(v) The word State means the State of Colorado, unless the context indicates otherwise.

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

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

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

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

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

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

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

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

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

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

In this action, we are approving a revised maintenance plan for the Colorado Springs CO attainment/maintenance area that is designed to keep the area in attainment for CO through 2015, we're approving a revised transportation conformity motor vehicle emissions budget (MVEB), and we're approving revisions to Colorado's Regulation No. 11 entitled “Motor Vehicle Emissions Inspection Program.” We approved the original CO redesignation to attainment and maintenance plan for the Colorado Springs area on August 25, 1999 (see 64 FR 46279). We approved the first revision to the maintenance plan on December 22, 2000 (see 65 FR 80779).

The revised Colorado Springs CO maintenance plan that we approved on December 22, 2000 (hereafter December 22, 2000 maintenance plan) utilized the then applicable EPA mobile sources emission factor model, MOBILE5a. On January 18, 2002, we issued policy guidance for States and local areas to use to develop SIP revisions using the new, updated version of the model, MOBILE6. The policy guidance was entitled “Policy Guidance on the Use of MOBILE6 for SIP Development and Transportation Conformity” (hereafter, January 18, 2002 MOBILE6 policy). On November 12, 2002, EPA's Office of Transportation and Air Quality (OTAQ) issued an updated version of the MOBILE6 model, MOBILE6.2, and notified Federal, State, and Local agency users of the model's availability. MOBILE6.2 contained additional updates for air toxics and particulate matter. However, the CO emission factors were essentially the same as in the MOBILE6 version of the model.

For the three years analyzed in the December 22, 2000 maintenance plan (1990, 2005, and 2010), the State revised and updated the mobile sources CO emissions using MOBILE6.2 and also extended the maintenance period out to 2015. The State recalculated the CO MVEB for 2010 and beyond and also applied a selected amount of the available safety margin to the 2010 transportation conformity MVEB. In addition, based on the significant CO emissions reductions predicted by the MOBILE6.2 model, the State's revised maintenance demonstration shows maintenance of the CO NAAQS with the elimination, beginning January 1, 2005, of the motor vehicle Basic Inspection and Maintenance (I/M) program for El Paso County, Colorado, which includes the Colorado Springs CO attainment/maintenance area. Thus, the State has asked us to approve a revision to Regulation No. 11 that would eliminate the Basic I/M program beginning January 1, 2005. We have determined that all the revisions noted above are Federally-approvable, as described further below.

Section 110(k) of the CAA addresses our actions on submissions of revisions to a SIP. The CAA requires States to observe certain procedural requirements in developing SIP revisions for submittal to us. Section 110(a)(2) of the CAA requires that each SIP revision be adopted after reasonable notice and public hearing. This must occur prior to the revision being submitted by a State to us.

The Colorado Air Quality Control Commission (AQCC) held a public hearing for the revised Colorado Springs Carbon Monoxide (CO) Maintenance Plan and Regulation No. 11 revisions on December 18, 2003. The AQCC adopted the revised maintenance plan and Regulation No. 11 revisions directly after the hearing. These SIP revisions became State effective on March 1, 2004, and were submitted by the Governor to us on April 12, 2004.

We have evaluated the Governor's submittal for the revised maintenance plan and Regulation No. 11 revisions and have determined that the State met the requirements for reasonable notice and public hearing under section 110(a)(2) of the CAA. We reviewed these SIP materials for conformance with the completeness criteria in 40 CFR 51, Appendix V and determined that the submittals were administratively and technically complete. The Governor was advised of our completeness determination through a letter from Robert E. Roberts, Regional Administrator, dated June 17, 2004.

EPA has reviewed the State's revised maintenance plan for the Colorado Springs attainment/maintenance area and believes that approval is warranted. The following are the key aspects of this revision along with our evaluation of each:

(a) The State has revised the Colorado Springs maintenance plan and has air quality data that support continuous attainment of the CO NAAQS.

As described in 40 CFR 50.8, the national primary ambient air quality standard for carbon monoxide is 9 parts per million (10 milligrams per cubic meter) for an 8-hour average concentration not to be exceeded more than once per year. 40 CFR 50.8 continues by stating that the levels of CO in the ambient air shall be measured by a reference method based on 40 CFR part 50, Appendix C and designated in accordance with 40 CFR part 53 or an equivalent method designated in accordance with 40 CFR part 53. The December 22, 2000 maintenance plan relied on ambient air quality data from 1990 through 1999. In our consideration of the revised Colorado Springs CO maintenance plan, submitted by the Governor on April 12, 2004, we reviewed ambient air quality data from 1990 through 2003 and the first calendar quarter of 2004. The Colorado Springs area shows continuous attainment of the CO NAAQS from 1990 to present. All of the above-referenced air quality data are archived in our Aerometric Information and Retrieval System (AIRS).

(b) Using the MOBILE6.2 emission factor model, the State revised the attainment year inventory (1990), prior projected years (2005, 2010) inventories, and provided new projected years (2007 and 2015) emission inventories.

The revised maintenance plan that the Governor submitted on April 12, 2004, includes comprehensive inventories of CO emissions for the Colorado Springs area. These inventories include emissions from stationary point sources, area sources, non-road mobile sources, and on-road mobile sources. More detailed descriptions of the revised 1990 attainment year inventory, the revised 2005 and 2010 projected inventories, and the new projected 2007 and 2015 inventories, are documented in the maintenance plan in section 2 entitled “Emission Inventories and Maintenance Demonstration”, and in the State's Technical Support Document (TSD). The State's submittal contains emission inventory information that was prepared in accordance with EPA guidance. Summary emission figures from the 1990 attainment year and the projected years are provided in Table IV.—1 below.

The revised mobile source emissions show the largest change from the December 22, 2000 maintenance plan and this is primarily due to the use of MOBILE6.2 instead of MOBILE5a. The MOBILE6.2 modeling information is contained in the State's TSD (see “Mobile Source Emission Inventories”, page 6) and on a compact disk we prepared (a copy is available upon request). The State's TSD information is also available on a compact disk that may be requested from the State or it can be downloaded directly from the State's Web site at http://apcd.state.co.us/documents/techdocs.html. The TSD compact disc contains much of the modeling data, input-output files, fleet makeup, MOBILE6.2 input parameters, etc. and is included with the docket for this action. Other revisions to the mobile sources category resulted from revised vehicle miles traveled (VMT) estimates that were provided to the State by the Pikes Peak Area Council of Governments (PPACG), which is the metropolitan planning organization (MPO) for the Colorado Springs area, and were extracted from PPACG's 2025 Long Range Plan. In summary, the revised maintenance plan and State TSD contain detailed emission inventory information that was prepared in accordance with EPA guidance and is acceptable to EPA.

(c) The State revised the maintenance demonstration used in the December 22, 2000 Colorado Springs maintenance plan.

The December 22, 2000 CO maintenance plan utilized the then applicable EPA mobile sources emission factor model, MOBILE5a. On January 18, 2002, we issued policy guidance for States and local areas to use to develop SIP revisions using the updated version of the model, MOBILE6. The policy guidance was entitled “Policy Guidance on the Use of MOBILE6 for SIP Development and Transportation Conformity” (hereafter, January 18, 2002 MOBILE6 policy). Additional policy guidance regarding EPA's MOBILE model was issued on November 12, 2002, which notified Federal, State, and Local agencies that the updated MOBILE6.2 model was now available and was the recommended version of the model to be used. We note that the State used the MOBILE6.2 model to revise the Colorado Springs maintenance plan.

Our January 18, 2002, MOBILE6 policy allows areas to revise their motor vehicle emission inventories and transportation conformity MVEBs using the MOBILE6 model without needing to revise the entire SIP or completing additional modeling if: (1) The SIP continues to demonstrate attainment or maintenance when the MOBILE5-based motor vehicle emission inventories are replaced with MOBILE6 base year and attainment/maintenance year inventories and, (2) the State can document that the growth and control strategy assumptions for non-motor vehicle emission sources continue to be valid and minor updates do not change the overall conclusion of the SIP. Our January 18, 2002 MOBILE6 policy also speaks specifically to CO maintenance plans on page 10 of the policy. The first paragraph on page 10 of the policy states “* * * if a carbon monoxide (CO) maintenance plan relied on either a relative or absolute demonstration, the first criterion could be satisfied by documenting that the relative emission reductions between the base year and the maintenance year are the same or greater using MOBILE6 as compared to MOBILE5.”

The State could have used the streamlined approach described in our January 18, 2002 MOBILE6 policy to update the Colorado Springs CO MVEB. However, the Governor's April 12, 2004 SIP submittal instead contained a completely revised maintenance plan and maintenance demonstration for the Colorado Springs area. That is, all emission source categories (point, area, non-road, and mobile) were updated using the latest versions of applicable models (including MOBILE6.2), transportation data sets, emissions data, emission factors, population figures and other demographic information. We have determined that this fully revised maintenance plan SIP submittal exceeds the requirements of our January 18, 2002 MOBILE6 policy and, therefore, our January 18, 2002 MOBILE6 policy is not relevant to our approval of the revised maintenance plan and its MVEB.

As discussed above, the State prepared revised emission inventories for the years 1990, 2005, 2007, and 2010, and 2015. The results of these calculations are presented in Table 1 “Colorado Springs Carbon Monoxide Maintenance Plan Emission Inventories” on page 4 of the revised Colorado Springs maintenance plan and are also summarized in out Table IV-1 above. The State has demonstrated that with the use of MOBILE6.2, mobile source emissions show a continuous decline from 1990 to 2015 and that the total CO emissions, from all source categories, projected for each future year (2005, 2007, 2010, and 2015) are all below the 1990 attainment year level of total CO emissions. Therefore, we have determined that the revised maintenance plan continues to demonstrate maintenance of the CO NAAQS from 1990 through 2015 and is approvable.

(d) The State has modified Regulation No. 11 to eliminate the Motor Vehicle Emissions Inspection Program for El Paso County and the Colorado Springs Area.

As described in the revised maintenance plan, as of January 1, 2005, the Basic I/M program (of Regulation No. 11) will not be a part of the Federally enforceable SIP for the Colorado Springs area. No CO emission reduction credit for this program was taken for the years 2005, 2007, 2010, and 2015 in the maintenance demonstration.

The State performed an analysis and determined that the requirements of the Basic Inspection and Maintenance (I/M) program of Regulation No. 11 could be eliminated for the Colorado Springs area without jeopardizing maintenance of the CO NAAQS. This analysis was performed using EPA's MOBILE6.2 emission factor model and the latest transportation planning data from the PPACG. We reviewed the methodology and analysis and we have determined they are acceptable. The results of the modeling are presented in the revised maintenance plan's “Table 1” and are applicable to the years 2005, 2007, 2010, and 2015. These mobile source emissions figures are also incorporated in our Table IV-1 above. Based on our review of the State's modeling analysis and emission figures, we agree that the Colorado Springs area continues to demonstrate maintenance of the CO NAAQS and we are approving the elimination, from the Federally-approved SIP, of the Basic I/M program requirements of Regulation No. 11 for El Paso County and the Colorado Springs area.

(e) Monitoring Network and Verification of Continued Attainment.

Continued attainment of the CO NAAQS in the Colorado Springs area depends, in part, on the State's efforts to track indicators throughout the maintenance period. This requirement is met in section 6. “Monitoring Network/Verification of Continued Attainment” of the revised Colorado Springs, CO maintenance plan. In section 6., the State commits to continue the operation of the CO monitor in the Colorado Springs area and to annually review this monitoring network and make changes as appropriate.

Also, in section 6 and 7.A, the State commits to track mobile sources' CO emissions (which are the largest component of the inventories) through the ongoing regional transportation planning process that is done by PPACG. Since regular revisions to Colorado Springs' transportation improvement programs must go through a transportation conformity finding, the State will use this process to periodically review the Vehicle Miles Traveled (VMT) and mobile source emissions projections used in the revised maintenance plan. This regional transportation process is conducted by PPACG in coordination with the State's Air Pollution Control Division (APCD), the AQCC, and EPA.

Based on the above, we are approving these commitments as satisfying the relevant requirements. We note that our final rulemaking approval renders the State's commitments federally enforceable. These commitments are also the same as were approved in the original maintenance plan and the December 22, 2000 maintenance plan.

(f) Contingency Plan.

Section 175A(d) of the CAA requires that a maintenance plan include contingency provisions. To meet this requirement, the State has identified appropriate contingency measures along with a schedule for the development and implementation of such measures.

As stated in section 7 of the revised maintenance plan, the contingency measures for the Colorado Springs area will be triggered by a violation of the CO NAAQS. (However, the maintenance plan does note that an exceedance of the CO NAAQS may initiate a voluntary, local process by the PPACG and APCD to identify and evaluate potential contingency measures.)

The PPACG, in coordination with the APCD and AQCC, will initiate a subcommittee process to begin evaluating potential contingency measures no more than 60 days after being notified by the APCD that a violation of the CO NAAQS has occurred. The subcommittee will present recommendations within 120 days of notification and the recommended contingency measures will be presented to the AQCC within 180 days of notification. The AQCC will then hold a public hearing to consider the recommended contingency measures, along with any other contingency measures that the AQCC believes may be appropriate to effectively address the violation of the CO NAAQS. The necessary contingency measures will be adopted and implemented within one year after the violation occurs.

The potential contingency measures that are identified in section 7.C of the revised Colorado Springs, CO maintenance plan include: (1) A 2.7% oxygenated fuels program as set forth in Regulation No. 13, as it existed prior to the modifications approved by the AQCC on February 17, 2000 and (2) reinstatement of the Basic I/M program as set forth in Regulation No. 11, as it existed prior to the modifications approved by the AQCC on December 18, 2003, with the addition of any on-board diagnostics components required by Federal law.

Based on the above, we find that the contingency measures provided in the State's revised Colorado Springs CO maintenance plan are sufficient and continue to meet the requirements of section 175A(d) of the CAA.

(g) Subsequent Maintenance Plan Revisions.

In accordance with section 175A(b) of the CAA, Colorado has committed to submit a revised maintenance plan eight years after our approval of the original redesignation. This provision for revising the maintenance plan is contained in section 8 of the revised Colorado Springs CO maintenance plan. In section 8, the State commits to submit a revised maintenance plan within 2007 to correspond with our approval of the original maintenance plan on August 25, 1999 (64 FR 46279).

Based on our review of the components of the revised Colorado Springs CO maintenance plan, as discussed in our items IV.(a) through IV.(g) above, we have concluded that the State has met the necessary requirements in order for us to fully approve the revised Colorado Springs CO maintenance plan.

One key provision of our conformity regulation requires a demonstration that emissions from the transportation plan and Transportation Improvement Program are consistent with the emissions budget(s) in the SIP (40 CFR sections 93.118 and 93.124). The emissions budget is defined as the level of mobile source emissions relied upon in the attainment or maintenance demonstration to maintain compliance with the NAAQS in the nonattainment or maintenance area. The rule's requirements and EPA's policy on emissions budgets are found in the preamble to the November 24, 1993, transportation conformity rule (58 FR 62193-96) and in the sections of the rule referenced above.

With respect to maintenance plans, our conformity regulation requires that MVEB(s) must be established for the last year of the maintenance plan and may be established for any other years deemed appropriate (40 CFR 93.118). For transportation plan analysis years after the last year of the maintenance plan (in this case 2015), a conformity determination must show that emissions are less than or equal to the maintenance plan's motor vehicle emissions budget(s) for the last year of the implementation plan. EPA's conformity regulation (40 CFR 93.124) also allows the implementation plan to quantify explicitly the amount by which motor vehicle emissions could be higher while still demonstrating compliance with the maintenance requirement. The implementation plan can then allocate some or all of this additional “safety margin” to the emissions budget(s) for transportation conformity purposes.

Section 5 “Transportation Conformity and Mobile Source Carbon Monoxide Emission Budget” of the revised Colorado Springs CO maintenance plan briefly describes the applicable transportation conformity requirements, provides MVEB calculations, identifies “safety margin”, and indicates that the PPACG elected to apply the identified “safety margin” to update an MVEB for 2010 and beyond.

In section 5 of the revised maintenance plan, the State evaluated two MVEBs; a budget for 2015 (the last year of the maintenance plan) and beyond, and a budget applicable to the years 2010 through 2014. For the 2015 MVEB, the State subtracted the total estimated 2015 emissions (from all sources) of 409.35 Tons Per Day (TPD) from the 1990 attainment year total emissions of 621.33 TPD. This produced a “safety margin” of 211.98 TPD. The State then reduced this “safety margin” by one TPD. The identified “safety margin” of 210.98 TPD for 2015 was then added to the estimated 2015 mobile sources emissions, 320.20 TPD, to produce a 2015 MVEB of 531 TPD. For the 2010 through 2014 MVEB, the State subtracted the total estimated 2010 emissions (from all sources) of 433.82 TPD from the 1990 attainment year total emissions of 621.33 TPD. This produced a “safety margin” of 187.51 TPD. The State then reduced this “safety margin” by one TPD. The identified “safety margin” of 186.51 TPD for 2010 was then added to the estimated 2010 mobile sources emissions, 350.21 TPD, to produce a 2010 through 2014 MVEB of 536 TPD. In consultation with the PPACG, the State then decided to only identify one MVEB which would apply to 2010 and beyond. The first sentence of paragraph two of section 5 of the revised maintenance plan states, “The Colorado Springs attainment/maintenance area mobile source emission budget is 531 tons/day for 2010 and beyond.” Based on this choice, and in order for a positive conformity determination to be made, transportation plan analyses for years after 2010 must show that motor vehicle emissions will be less than or equal to the 2010 MVEB of 531 TPD of CO. The revised maintenance plan also states that the previously approved CO MVEB of 270 TPD for 2010 and beyond (see 65 FR 80779, December 22, 2000) is removed from the SIP and is replaced by the new MVEB of 531 TPD. We have concluded that the State has satisfactorily demonstrated continued maintenance of the CO NAAQS while using a transportation conformity MVEB of 531 TPD for 2010 and beyond. Therefore, we are approving the transportation conformity MVEB of 531 TPD of CO, for the Colorado Springs attainment/maintenance area, for 2010 and beyond.

In addition to the above, the State has made a commitment regarding transportation conformity in section 3 of the maintenance plan. Because informal roll-forward analyses, prepared by the State, indicate that the 2010 and beyond CO MVEB may be exceeded by 2030, the State has committed to the re-implementation of the Basic I/M program (with any Federally required on-board diagnostic tests) for the Colorado Springs area in 2026. This commitment by the State is included in the revised maintenance plan for purposes of 40 CFR 93.122(a)(3)(iii), which provides that emissions reduction credit from such programs may be included in the transportation conformity emissions analysis if the maintenance plan contains such a written commitment. We agree with this interpretation of 40 CFR 93.122(a)(3)(iii) and are making this State commitment Federally enforceable with our approval of the Colorado Springs CO revised maintenance plan.

Colorado's Regulation No. 11 is entitled “Motor Vehicle Emissions Inspection Program” (hereafter referred to as Regulation No. 11). In developing the Colorado Springs revised CO maintenance plan, the State evaluated options for revising the then applicable Basic I/M motor vehicle emissions inspection program that was being implemented in El Paso County for the Colorado Springs CO attainment/maintenance area. The State's final decision, which was based on results from the use of our MOBILE6.2 emission factor model, was to eliminate the Basic I/M program for El Paso County and the Colorado Springs area from the Federal SIP beginning on January 1, 2005.

The Regulation No. 11 revisions adopted by the AQCC on December 18, 2003, State effective on March 1, 2004, and submitted by the Governor on April 12, 2004, remove El Paso County and the Colorado Springs area component of the Colorado Automobile Inspection and Maintenance (“AIR”) program from the Federally-approved SIP, but do not make any changes in State laws for implementing this Basic I/M program in El Paso County and the Colorado Springs area. This means that the AIR program for the implementation of the Basic I/M program will remain in full force and effect as a State-only program under State laws, but it will not be Federally-enforceable after January 1, 2005. The revised maintenance plan reflects this change in Regulation No. 11 in that mobile source CO emissions were calculated for the Colorado Springs area for 2005, 2007, 2010, and 2015 without the benefit of a Basic I/M program. We note, though, that even with the elimination of the Basic I/M program beginning on January 1, 2005, the Colorado Springs area is still able to meet our requirements to demonstrate maintenance of the CO NAAQS through 2015, as described above. We have evaluated and determined that the Regulation No. 11 revisions described above are acceptable to us and we are approving them now in conjunction with this action.

Section 110(l) of the CAA states that a SIP revision cannot be approved if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress towards attainment of a NAAQS or any other applicable requirement of the CAA. The revised Colorado Springs CO maintenance plan and revisions to Regulation No. 11 will not interfere with attainment, reasonable further progress, or any other applicable requirement of the CAA.

In this action, EPA is approving the revised Colorado Springs CO revised maintenance plan, that was submitted by the Governor on April 12, 2004, and the revised transportation conformity motor vehicle CO emission budget for the year 2010 and beyond. We are also approving the Regulation No. 11 revisions submitted by the Governor on April 12, 2004.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the “Proposed Rules” section of today's Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective November 8, 2004 without further notice unless the Agency receives adverse comments by October 7, 2004. If the EPA receives adverse comments, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 8, 2004. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

You may be potentially affected by this action if you are an electric utility that stores PCB Articles for reuse. Potentially affected entities may include, but are not limited to:

• Utilities (NAICS 22), e.g., Facilities that store PCB Articles for reuse; Electric Power Generation, Transmission and Distribution Facilities.

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in 40 CFR part 761. If you have any questions regarding the applicability of this action to a particular entity, consult the technical person listed under FOR FURTHER INFORMATION CONTACT .

In addition to 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 761 is available on E-CFR Beta Site Two at http://www.gpoaccess.gov/ecfr/ .

To access information about PCBs, go directly to the PCB Home Page at http://epa.gov/pcb .

In 1998, EPA promulgated a major revision of the rules governing use, manufacture, processing, distribution in commerce, and disposal of PCBs at 40 CFR part 761 (“PCB Disposal Amendments”) (Ref. 1). One of these amendments created a new authorization for storing PCB Articles (as defined at 40 CFR 761.3) for reuse (40 CFR 761.35), subject to certain requirements. These requirements were challenged in court. Central and South West Services, et al, v. EPA , 220 F.3d 683 (5 th Cir. 2000) (Ref. 2). While the Court's decision generally upheld the requirements, the Court directed EPA to address comments submitted during the rulemaking process that requested a waiver from the storage for reuse requirements for the electric utility industry (Ref. 2). EPA has prepared a Supplemental Response to Comments Document that addresses those comments (Ref. 3).

1. Rulemaking background . Under the proposed rule, a PCB Article could have been stored for reuse outside of a regulated storage area for up to 3 years, so long as the equipment was maintained as if it were in use and the equipment was labeled. In addition, records would have to have been kept on the date the equipment was removed from use, what its future use would be, and when service or repair of the equipment was planned. EPA Regional Administrators could have waived the 3-year limit, if justified, at the owner or operator's request. EPA also requested comment on whether the rule should include provisions to allow site-specific or nationwide waivers or exemptions from the storage for reuse requirements (Ref. 4, p. 62822).

In proposing the storage for reuse requirements, EPA explained that it intended to prevent owners of PCB Articles from avoiding the disposal requirements for stored equipment by claiming that, despite the length of time the equipment had been in storage and its state of disrepair, they planned to reuse the equipment. EPA noted, “This activity constitutes illegal disposal and creates additional risks of environmental exposure to PCBs while the equipment is ‘in storage for reuse.’” At the same time, EPA was aware of the need to balance the proposed restrictions against the “many legitimate instances which warrant the storage of PCB equipment for many years for the purpose of reuse as spares for critical components of electrical systems” (Ref. 4, pp. 62821-62823).

EPA published the proposed amendments to the storage for reuse rules on December 6, 1994, as part of the proposed PCB Disposal Amendments. The Agency originally stated that it would accept written comments on the proposal for 120 days after its publication (Ref. 4, p. 62788), but extended the comment period by an additional 30 days based on a request from the public (Ref. 5). On June 6 and 7, 1995, EPA held a public hearing on the proposed rule in Washington, DC, where the Agency took oral comments. An additional period for written reply comments followed the hearing. Copies of all written comments and a transcript of the hearing are in the official public record for that rulemaking.

Comments on the proposed rule, and EPA's responses, are discussed in the preamble to the final rule (Ref. 1, pp. 35399-35400) and in the Response to Comment Document (Ref. 6, p. 39). Commenters on the storage for reuse provision asked EPA to extend the proposed 3-year limit on storage for reuse outside of a regulated storage area. Commenters stated in particular that industries like pipelines and electric utilities needed a longer storage period because of the need to have replacement equipment at hand to maintain service during emergencies. In the final rule, EPA extended the 3-year limit for storage outside of a regulated storage area to 5 years, or for a longer period if the owner or operator has received the approval of the EPA Regional Administrator (40 CFR 761.35).

Commenters also disagreed with the proposed requirement to label equipment in storage for reuse, pointing out that it duplicated existing recordkeeping requirements. Based on these comments, EPA did not include the labeling requirement in the final rule. However, the final rule does retain the requirement that the owner or operator of equipment in storage for reuse keep a record of the location where the equipment will be used when removed from storage. This requirement is needed to distinguish an article in storage for reuse from one in storage for disposal.

Finally, electric utilities and natural gas pipeline and transmission companies objected to the provision of the proposal that would have allowed indefinite storage for reuse only in a storage area that met the requirements of § 761.65(b). The commenters argued that they could not always store equipment for reuse in a § 761.65(b) storage area, since, for this equipment to be available as emergency replacements, it had to be stored near the site where it would be used. The final rule, therefore, allows PCB Articles to be stored indefinitely in a § 761.65(b) storage area, or in a storage area permitted under the Resource Conservation and Recovery Act (RCRA) section 3004 or 3006.

Commenters from the electric utility industry requested that EPA grant a national variance from the storage for reuse provisions for the electric utility industry. The industry commented that electric utilities store equipment that is electrically sound and that does not present a risk, and that stored equipment is vital to maintaining a reliable power system. Other commenters asserted that the recordkeeping requirements would be costly and difficult to implement. Several commenters also suggested that individual electric utilities that have comprehensive PCB programs in place should be exempt from the storage for reuse requirements. The final rule did not include a provision allowing the industry site-specific or nationwide waivers or exemptions from the storage for reuse requirements, because the commenters did not supply any data showing that the equipment stored for reuse at the commenters' facilities is maintained in such a way that it remains intact and non-leaking and therefore does not present a risk to health or the environment.

2. Litigation background . Several entities representing the electric utility industry (Central and South West Services, Inc., Entergy Services, Inc., Mississippi Power Company, and Utility Solid Waste Activities Group, collectively referred to hereinafter as “USWAG”) petitioned for review of § 761.35 in the U.S. Court of Appeals for the Fifth Circuit (Ref. 7). USWAG asked the Court to vacate § 761.35 on the grounds that this section was not supported by substantial evidence in the record as a whole, and that, after soliciting comment whether to allow nationwide waivers of the storage for reuse rules, EPA failed to respond to comments arguing for such a waiver for the electric utility industry (Ref. 8, pp. 28-51).

The Court rejected USWAG's first argument, holding that the proper standard of review for challenges to EPA rules restricting or prohibiting the use of PCBs is whether the rules are arbitrary and capricious, a more deferential test than inquiring whether the rules are supported by substantial evidence. The Court further found that EPA's decision to strengthen the storage for reuse rules to prevent practices that pose an unreasonable risk to health and the environment was not arbitrary and capricious. On USWAG's second argument, the Court agreed that EPA had not adequately responded to the electric utility industry's comments requesting a waiver. Rather than vacating § 761.35, the Court remanded the rule to EPA to provide a reasoned statement of why it did not grant a national variance for the electric utility industry. The Court noted, “EPA may well be able to justify its decision to refuse to promulgate a national variance for the electric utilities and it would be disruptive to vacate a rule that applies to other members of the regulated community.”

3. EPA's response to industry's comments . EPA has prepared a Supplemental Response to Comments Document on storage of PCB Articles for reuse that addresses the electric utility industry's comments requesting a waiver from § 761.35. That document explains why based both on the information provided by commenters and other information available to the Agency, that a generic waiver from the storage for reuse requirements for the electric utility industry was not warranted. Based on the available information, EPA believes that additional restrictions on storage for reuse are necessary to prevent an unreasonable risk to human health and the environment.

The Supplemental Response to Comments Document that EPA is adding to the rulemaking record provides a reasoned statement of why EPA did not grant a national variance from the storage for reuse requirements at 40 CFR 761.35 for the electric utility industry, as directed by the U.S. Court of Appeals for the Fifth Circuit in Central and South West Services, et al, v. EPA , 220 F.3d 683 (5 th Cir. 2000) (Ref.2).

1. U. S. Environmental Protection Agency (USEPA), OPPT. Disposal of Polychlorinated Biphenyls (PCBs); final rule. Federal Register (63 FR 35384, June 29, 1998) (FRL-5726-1).

2. U.S. Court of Appeals for the Fifth Circuit. Central and South West Services, et al, v. United States Environmental Protection Agency . Case No. 98-60495, August 15, 2000.

3. USEPA, OPPT, National Program Chemicals Division (NPCD). Supplemental Response to Comment Document on the Proposed Rule—Disposal of Polychlorinated Biphenyls. January 2004.

4. USEPA, OPPT. Disposal of Polychlorinated Biphenyls; proposed rule. Federal Register (59 FR 62788, December 6, 1994) (FRL-4167-1).

5. USEPA, OPPT. Disposal of Polychlorinated Biphenyls (PCBs); extension of comment period and notice of informal hearing. Federal Register (60 FR 17510, April 6, 1995) (FRL-4948-1).

6. USEPA, OPPT, NPCD. Response to Comment Document on the Proposed Rule—Disposal of Polychlorinated Biphenyls. May 1998.

7. Central and South West Services, Inc., Entergy Services, Inc., Mississippi Power Company, and the Utility Solid Waste Activities Group (USWAG). Petition for Review (5 th Cir., August 7, 1998).

8. USWAG. Brief of Petitioners Central and South West Services, Inc., Entergy Services, Inc., Mississippi Power Company, and the Utility Solid Waste Activities Group (USWAG) (Case No. 98-60495, 5 th Cir., April 27, 1999).

9. USEPA, Region VI, Dallas, TX. Complaint and Notice of Opportunity for Hearing, TSCA Docket No. VI-533C. September 27, 1991.

10. USEPA, Region VI, Dallas, TX. Consent Agreement and Consent Order, TSCA Docket No. VI-533C. June 11, 1992.

11. USEPA, Region VI, Dallas, TX. Complaint and Notice of Opportunity for Hearing, TSCA Docket No. VI-676C(P). December 31, 1996.

12. USEPA, Region VI, Dallas, TX. Consent Agreement and Consent Order, TSCA Docket No. VI-676C(P). June 30, 1997.

13. USEPA, Office of Toxic Substances (OTS). Polychlorinated Biphenyls (PCBs); Manufacturing, Processing, Distribution in Commerce, and Use Prohibitions; Use in Electrical Equipment; final rule. Federal Register (47 FR 37342, August 25, 1982).

14. USEPA. Information Collection Activities OMB Responses; notice. Federal Register (63 FR 57123, October 26, 1998) (FRL-6180-2).

This is a summary of the Commission's Report and Order, ET Docket 03-201, FCC 04-165, adopted July 8, 2004 and released July 12, 2004. The full text of this document is available for inspection and copying during regular business hours in the FCC Reference Center (Room CY-A257), 445 12th Street, SW., Washington, DC 20554. The complete text of this document also may be purchased from the Commission's duplication contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554. The full text may also be downloaded at: http://www.fcc.gov. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the FCC Consumer & Governmental Affairs Bureau at (202) 418-0531 (voice), (202) 418-7365 (TTY).

The Report & Order contains modified information collection(s) requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public to comment on the information collection requirements contained in this R&O as required by the Paperwork Reduction Act of 1995 (PRA), Pub. L. 104-13. Public and agency comments are due November 8, 2004. In addition, the Commission notes that pursuant to the Small Business Paperwork Relief Act of 2002, Pub. L. 107-198, see 44 U.S.C. 3506(c)(4), we previously sought specific comment on how the Commission might “further reduce the information collection burden for small business concerns with fewer than 25 employees.” In this present document, we have assessed the effects of removing the paper filing provisions in §§ 2.913(c), 2.929(c) and 2.929(d) of the Commission's rules, and find that the changes will facilitate more efficient document filing and processing without placing additional burdens on small entities.

1. In the Notice of Proposed Rulemaking, ( NPRM ), 68 FR 68823, September 17, 2003, the Commission proposed to update § 15.247 of the rules to allow the use of more efficient antenna technologies with unlicensed devices. The regulations in effect at the time allowed only omnidirectional and directional antennas to be used with such devices. However, systems employing advanced antenna designs such as sectorized antennas and phased array adaptive antennas are now being used, or contemplated for use, as part of wide area network systems operating in the 2.4 GHz band. To date, the Commission has not generally authorized the operation of sectorized antennas by spread spectrum systems, but, by individual interpretation of its rules, we have allowed a few phased array systems to operate.

2. The Commission continues to believe that it is appropriate to revise § 15.247 to permit the use of advanced antenna systems in the 2.4 GHz band. The Commission is adopting our proposals with certain modifications based on the comments. First, The Commission is allowing advanced antenna systems, including sectorized and adaptive array systems, to operate with an aggregate transmit output power transmitted simultaneously on all beams of up to 8 dB above the limit for an individual beam.

3. Second, the Commission is adopting a requirement that the total EIRP on any beam may not exceed the EIRP limits for conventional point-to-point operation. The Commission is aware that during the course of normal operation it is possible that two beams may overlap while tracking associated mobile units. Because the effective radiated power along the path of overlap might exceed the power level permitted by a single beam, the Commission will require that the aggregate power transmitted simultaneously on overlapping beams be reduced to ensure that EIRP in the area of overlap does not exceed the limit for a single beam. Applications for equipment authorization must include the algorithm that will produce the maximum gain to ensure that the requirement will be met. For example, consider an antenna system that forms two separate beams both operating at the maximum permitted power. If the two beams were to overlap coverage area, then the power in each beam must be reduced in any proportion relative to the other in such a way that the total power in the overlap area does not exceed the maximum power allowed for one beam.

4. The Commission is not adopting a rule to restrict advanced antenna systems to 120° beamwidth. The Commission concludes that the EIRP limits, including the areas of overlap, will ensure that interference potential of the system is minimized, regardless of the beamwidth employed.

5. The rules we adopt herein are technologically neutral and will permit operation of various new and developing antenna technologies. Although the NPRM identified only sectorized and phased array systems as those that the Commission would consider under the revised rules, commenters have noted that other advanced antenna technologies are either under development or in use for various applications. Systems using technologies such as MIMO, space-time coding, and switched beam devices will be accommodated under the new rules.

6. The Commission is grandfathering existing advanced antenna systems that have already received an equipment authorization. These systems may continue to operate in accordance with the terms of the equipment authorization. New systems must comply with the rules adopted herein.

7. Section 15.203 requires that intentional radiators be designed such that no antenna other than that supplied can be used with the device. The rules state that the device can be designed to permit a broken antenna to be replaced by the user; however, the use of a standard antenna jack or electrical connector is prohibited. These rules are intended to prevent both intentional and unintentional circumvention of the part 15 emission limits by replacing a device's authorized antenna with an antenna having higher gain characteristics.

8. In order to support more flexible antenna requirements for unlicensed devices, the Commission proposed to allow that devices be authorized for use with multiple antennas. Although the Commission proposed to modify § 15.203 to implement the modifications, it believes that the changes are better suited for § 15.204. Accordingly, the Commission modifies § 15.204 to permit intentional radiators to be authorized with multiple antennas of similar in and out-of-band gain and radiation pattern. Compliance testing for the intentional radiator must be performed using the highest gain antenna that will be used with the device. The manufacturer must supply a list of other acceptable antennas in the literature delivered to the customer.

9. The Commission is not convinced, however, that the unique connector requirement should be eliminated. Thus, all replacement antennas authorized for use with an intentional radiator must incorporate a non-standard connector which uniquely couples with that intentional radiator. The Commission remains concerned that removing this requirement could make it easier for parties to attach unauthorized high gain antennas or linear amplifiers to unlicensed devices in violation of the rules. Of even greater importance, however, is the Commission's concern that removing this requirement might have the unintended consequence of allowing uninformed consumers to inadvertently attach an antenna which causes the device to emit at levels in excess of the limits for human exposure to radio emissions. For these reasons, the Commission will continue to require that unlicensed devices use non-standard antenna connectors as currently required in § 15.203.

10. The Commission will also remove the § 15.407(d) requirement that devices designed to operate in the 5.15 GH z -5.25 GH z U-NII band incorporate an integrated antenna. In light of the fact that manufacturers are designing equipment that is capable of operating across multiple unlicensed bands, the Commission concludes that it is impractical to maintain separate antenna requirements for each band in which a device my operate. Removal of this requirement will not present a significant interference risk because the modified § 15.204 rules will ensure that any replacement antenna used with a device will not cause emissions to exceed authorized levels. Furthermore, the requirement that U-NII band devices incorporate a non-standard connector which couples only to the transmitter with which it is authorized will provide assurance that unauthorized antennas will not be used with the devices.

11. Section 15.205 of the rules prohibits marketing of external radio frequency amplifiers, except as part of a complete transmission system consisting of an intentional radiator, external radio frequency amplifier and antenna. In the NPRM , the Commission proposed to allow marketing of separate radio frequency power amplifiers on a limited basis. The Commission proposed to restrict such marketing to amplifiers that are only capable of operation under the digitally modulated devices rules in § 15.247 and under the U-NII rules for the 5750-5850 MH z band. These are the rules under which most unlicensed wireless broadband devices operate. Further, the Commission proposed to require that the parties responsible for such amplifiers obtain an equipment authorization (certification) and demonstrate that the device cannot operate with an output power of more than 1 Watt, the maximum power permitted under the rules. Consumers and businesses would then have the ability to obtain a separate amplifier if they find the device they have purchased has insufficient operating range to meet their needs.

12. The Commission adopted rules to allow external amplifiers to be marketed separately if they are designed in such a way that they can only be used with a specific system that is covered by an equipment authorization, such as through use of a unique connector or via an electronic handshake with a host device. The amplifiers must have a proprietary connection both into the amplifier and into the associated routers and access points with which they are FCC approved to work so that consumers with any other routers or access points cannot use them. The output power of such an amplifier must not exceed the maximum permitted output power of the system with which it is authorized. In addition, the Commission is requiring that the amplifiers will be sold with a notice that they are to be used only in conjunction with the routers and access points for which they have been approved. A description or listing of the devices with which the amplifier can be used must appear on the outside packaging as well as in the user manual for the amplifier. The amplifiers must not be used to circumvent regulations regarding output power. For example, an amplifier may not be used to increase the output power of a system that is otherwise limited to 125 mW to a higher power. The party responsible for ensuring compliance with Commission regulations shall illustrate, during the equipment authorization process, the method used to prohibit unauthorized power increases. The marketing of RF amplifiers that are not FCC certified to be used as part of a specific system will continue to be prohibited.

13. In the NPRM , the Commission explained that unlicensed devices designed to use digital modulation techniques may be authorized under either the U-NII rules (Subpart E) or § 15.247 of part 15. When operating under either of these requirements the devices are limited to 1 watt maximum output power. However, the method used to determine the maximum power varies for U-NII and spread spectrum devices. Specifically, the output power measurement required under the Commission's U-NII device test procedure is an RMS average measurement, while the output power measurement required under the Commission's digitally-modulated spread spectrum device test procedure is a measurement of the overall peak emission. In adopting the U-NII rules, the Commission recognized that digital modulation techniques often display short duration peaks that do not cause increased interference to other operations. Measuring the peak level of short duration spikes overestimates interference potential. Accordingly, the Commission established measurement procedures for digital U-NII devices which allow for averaging output power in order to disregard these insignificant spikes.

14. In the NPRM , the Commission proposed to harmonize the measurement procedures for digital modulation devices authorized under § 15.247 with the digital U-NII devices authorized under § 15.407. Specifically, the Commission proposed to allow entities performing compliance testing for § 15.247 devices to use an average, rather than overall peak, emission as provided by § 15.407, paragraphs (a)(4) and (a)(5) when measuring transmit power. The Commission proposed this change for devices using digital modulation that operate in the 915 MH z , 2.4 GH z and 5.7 GH z bands.

15. The Commission believes that it is important to maintain consistent treatment of similar technologies regardless of the rule § under which it is authorized. Therefore, as proposed in the NPRM , the Commission will modify § 15.247 to permit the determination of the output power of a digitally modulated system by the same methods used to determine output power of systems operating pursuant to the U-NII rules. This measurement, in both cases, may be taken as an average power measurement as described in the Public Notice, “Measurement Procedure Updated for Peak Transmit Power in the Unlicensed National Information Infrastructure (U-NII) Bands,” DA 02-2138, 17 FCC Rcd 16521, August 30, 2002.

16. The Commission is not removing the existing measurement requirements for § 15.247 devices from the rules; instead, the new measurement procedure can be used optionally for digitally modulated § 15.247 devices. However, in order to address the concern of increased out-of-band emissions from devices authorized under § 15.247, we will require that if emissions are measured using the average power procedure, then out-of-band emission must be reduced to 30 dB below the level of the device's fundamental frequency.

17. The optional measurement procedure will be applicable to digitally modulated devices in the 915 MH z , 2.4 GH z and 5.7 GH z bands. The Commission is not persuaded by Itron's comments to exclude the 915 MH z band. Itron argues that using an average rather than peak power output measurement would result in higher-power devices being permitted to operate in the band. It states that changing the testing procedure could be detrimental to tens of millions of devices operating in the 915 MH z band. The Commission finds that Itron has not made a significant showing to warrant exclusion of the 915 MH z band from the revised regulations. The Commission continues to believe that these changes will benefit operators in the 915 MH z band equally as well as operators in the 2.4 GH z and 5.7 GH z bands without resulting in increased risk of interference.

18. The Commission proposed to modify the frequency hopping spacing requirement to permit certain systems in the 2.4 GH z band to utilize hopping channels separated by either 25 KH z or two-thirds of the 20 dB bandwidth, whichever is greater. The Commission stated that although a single device's channels will not overlap in time, the operation of multiple devices using the new modulation technique simultaneously in a given area may cause the spectral occupancy and power density to increase, leading to an increased risk of interference. Therefore, the Commission sought comment on the interference potential of new waveforms with more gradual roll-off and potentially higher spectral power densities at the channel band edges.

19. The Commission believes that our proposal to modify the frequency hopping spacing requirement in the 2.4 GH z band will provide for more spectrally efficient technologies. The Commission is therefore adopting our proposal. The Commission agrees with the commenters that the relaxed frequency hopping spacing requirement proposed should not be limited to systems using 75 or fewer channels. The Commission is therefore adopting the language that will not limit flexibility to systems using 75 or fewer channels. Frequency hopping systems that operate under the revised spacing rules will be limited to an output power of 125 mW.

20. The Commission is not extending this provision to the 915 MH z band as requested. There are additional concerns with regard to altering the separation distances for frequency hopping systems in the 915 MH z band. In particular, the 915 MH z band has only 28 megahertz of available spectrum as opposed to 83.5 megahertz of spectrum in the 2.4 GH z band. Because there is less spectrum available, wider skirts would have a greater impact. The Commission does not have sufficient information about the affects that modifying the spacing requirements would have on existing users of the band. Therefore, the Commission is not changing the channel spacing requirements for the 915 MH z band at this time.

21. The Commission declines to impose any type of spectrum etiquette for the part 15 bands that are the subject of this proceeding because they are already heavily used. The Commission believes that design flexibility has helped industry to develop efficient sharing and modulation schemes. It appears that the existing regulations have resulted in very efficient use of available unlicensed spectrum. However, the Commission also finds that the recommendations advanced by Microsoft have merit and should be taken under consideration. In particular, the Commission finds that Microsoft's suggestions may prove beneficial as the Commission proceeds in making additional spectrum available for unlicensed operation. For example, the Commission now has under consideration a Notice of Proposed Rulemaking , 69 FR 34103, June 18, 2004, seeking comment on issues related to allowing unlicensed devices to operate in unused portions, or “White Spaces,” in the TV broadcast spectrum. The Commission notes that a device operating in accordance with the suggested guidelines could more effectively share the broadcast band, minimizing the risk of interference to both TV stations and other unlicensed devices. The Commission will take into consideration possible requirements such as these as it contemplates making additional spectrum available for the operation of unlicensed devices.

22. In the NPRM , the Commission also proposed to clarify the equipment authorization requirements for modular transmitters. However, because there are complex and evolving issues associated with modular transmitters, the Commission determined that further information is needed before reasonable guidelines can be developed. Accordingly, the Commission will address this matter in a later Commission action.

23. The Commission proposed to delete the provisions in § 15.7 of the rules for obtaining a Special Temporary Authority (STA) to operate intentional or unintentional radiation devices not conforming to the part 15 rules. The Commission noted that the Office of Engineering and Technology has not granted any STAs under part 15 nor had any formal requests for an STA under these rules in the last 10 years. The Commission further noted that this need is being met through the allowances for STAs under the provisions in part 5 for experimental licenses.

24. Only Globespan Virata filed comments on this subject. It expresses support for removing the Special Temporary Authority provisions. The Commission concludes that the STA provisions of part 15 are no longer needed. The lack of interested parties commenting on this topic provides a further indication that the rule section has outlived its usefulness. Therefore, as proposed in the NPRM , the Commission deletes § 15.7 from the rules. STAs to operate intentional or unintentional radiation devices not conforming to the part 15 rules will continue to be granted, as appropriate, under the experimental licensing provisions of part 5.

25. In a comment filed in response to the 2002 Regulatory Flexibility Act Review, Hewlett-Packard Company (HP) asked that the Commission increase the number of devices not intended for use in a licensed service that may be imported to 2000 or fewer for testing and evaluation and 100 or fewer for demonstration purposes. HP further requests that the modified rules be expanded to permit demonstration prototypes to be used, in addition to trade shows, for any other purpose designed to build market awareness. As an alternative to the suggested rule changes, HP states that the Commission could consider combining §§ 2.1204(a)(3) and 2.1204(a)(4) to create a limit of 2100 devices for all pre-authorized units to be used for, “design refinement, software development, marketing and customer support program development, or any other needed product development purpose, including promoting market awareness.” HP contends that this relaxation of the import regulations would more accurately reflect the manufacturing and marketing procedures in use today.

26. The Commission proposed to relax the import restrictions as requested by HP. However, the Commission also expressed concern that increasing the limit as HP requests might encourage some manufacturers to import far more devices than necessary and to request an exception to import an even greater number of devices, without sufficient cause. The Commission sought comment on both the necessity of increasing the importation limit and the possibility of abuse of a revised rule.

27. The Commission does not believe that commenters have made a compelling argument supporting the need for a modification to the importation regulations. The Commission routinely receives requests to import products in greater numbers than provided for in the current rules. Such requests are generally processed with little delay. To be more specific, our Office of Engineering and Technology Laboratory processes, on average, only about twenty-five such requests per year. This limited number of requests does not impose a significant administrative burden on the Commission. Furthermore, the requests are useful to our staff because they indicate how many devices are being imported prior to authorization. The Commission remains concerned that relaxation of the import rules might result in an unnecessary influx of excess equipment and increase the likelihood that manufacturers will lose track of unauthorized devices. Accordingly, the Commission declines to modify the § 2.1204 importation regulations.

28. The Commission proposed three changes which it believed would streamline our filing process by reducing paperwork burdens and further our efforts to comply with the E-Government initiative. Specifically, it proposed to 1) delete the provisions for paper filing of an application for Certification in § 2.913, noting that no requests to submit paper filings had been received in the past five years; 2) modify § 2.926(c) to require electronic filing for all grantee code assignment requests, and; 3) modify §§ 2.929(c) and (d) to require electronic filing for all changes in address, company name, contact person, and control/sale of the grantee.

29. With the support of commenters, the Commission concludes that the paper filing provisions in §§ 2.913(c), 2.926(c), 2.929(c), and 2.929(d) of the rules are unnecessary and outdated. The proposed revisions would facilitate more efficient document filing and processing. Therefore, the Commission will make the changes to §§ 2.913(c), 2.926(c), 2.929(c), and 2.929(d) as proposed in the NPRM.

30. The Commission observed that the rules do not address re-evaluation intervals for laboratories that test devices for part 15 and part 18 compliance. Accrediting bodies that evaluate the laboratories generally determine these intervals themselves. While domestic laboratories are generally re-evaluated at two-year intervals, some Accrediting Bodies reassess foreign laboratories only every 7 years. The Commission indicated that it is important that all laboratories, both foreign and domestic, be re-certified on a common interval. Therefore, the Commission proposed to modify § 2.948 to clarify that all test sites, both foreign and domestic, must be reassessed by their Accrediting Body every two years. The Commission proposed to modify § 2.962(e)(1) to clarify that every Telecommunications Certification Body must be re-accredited every 2 years for continued accreditation.

31. The Commission modified § 2.948 to clarify that all test sites must be reassessed by their Accrediting Body every two years. Additionally, the Commission is modifying § 2.962 by adding a new paragraph (c)(7) to clarify that every Telecommunications Certification Body must be reassessed on two-year intervals.

32. Finally, the Commission makes an editorial change to § 15.31(a)(3) to update the reference to ANSI C63.4 to its newest version. Specifically, the Commission is replacing “ANSI C63.4-2001” with “ANSI C63.4-2003.” The Note to paragraph (a)(3) remains unchanged.

33. As required by the Regulatory Flexibility Act (“RFA”), 1 an Initial Regulatory Flexibility Analysis (“IRFA”) was incorporated in the Notice of Proposed Rule Making (“NPRM”), ET Docket 03-201. The Commission sought written public comment on the proposals in the Notice, including comment on the IRFA. We find that the rules adopted in the Report and Order will not have a significant economic impact on a substantial number of small entities. 2 The Commission has nonetheless provided this Final Regulatory Flexibility Analysis (“FRFA”) to provide a fuller record in this proceeding. This FRFA conforms to the RFA. 3

34. Section 11 of the Communications Act of 1934, as amended, and § 202(h) of the Telecommunications Act of 1996 require the Commission (1) to review biennially its regulations pertaining to telecommunications service providers and broadcast ownership; and (2) to determine whether economic competition has made those regulations no longer necessary in the public interest. The Commission is directed to modify or repeal any such regulations that it finds are no longer in the public interest.

35. On September 6, 2002, the Commission released a Public Notice seeking comments regarding Commission rules which may be outdated and in need of revision. 4 The Public Notice identified a number of rule sections in parts 2 and 15 as candidates for review, and encouraged interested parties to provide comment on these rules. Subsequently, on September 26, 2002, the Commission released a separate Public Notice seeking suggestions as to which rule parts administered by the Commission's Office of Engineering and Technology should be modified or repealed as part of the 2002 biennial review. 5 Some of the comments filed in response to these Public Notices were addressed by NPRM . The NPRM also addressed other issues raised as a result of recent changes in technology.

36. The NPRM proposed several changes to parts 2, 15 and other parts of the rules. Specifically, it proposed to:

(1) modify the rules to permit the use of advanced antenna technologies with spread spectrum devices in the 2.4 GHz band;

(2) modify the replacement antenna restriction for part 15 devices;

(3) modify the equipment authorization procedures to provide more flexibility to configure transmission systems without the need to obtain separate authorization for every combination of system components;

(4) harmonize the measurement procedures for digital modulation systems authorized pursuant to § 15.247 of the rules with those for similar U-NII devices authorized under §§ 15.401-15.407 of the rules;  6

(5) modify the channel spacing requirements for frequency hopping spread spectrum devices in the 2.4 GHz band in order to remove barriers to the introduction of new technology that uses wider bandwidths;

(6) clarify the equipment authorization requirements for modular transmitters; and

(7) make other changes to update or correct parts 2 and 15 of our rules.

37. These proposals would prove beneficial to manufacturers and users of unlicensed technology, including those who provide services to rural communities. Specifically, the Commission noted that a growing number of service providers are using unlicensed devices within wireless networks to serve the varied needs of industry, government, and general consumers alike. One of the more interesting developments is the emergence of wireless Internet service providers or “WISPs.” Using unlicensed devices, WISPs around the country are providing an alternative high-speed connection in areas where cable or DSL services have been slow to arrive. The Commission believes that the increased flexibility proposed in the NPRM would help to foster a viable last mile solution for delivering Internet services, other data applications, or even video and voice services to underserved, rural, or isolated communities.

38. No comments were filed in response to the IRFA.

39. The RFA directs agencies to provide a description of, and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. 7 The RFA defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small business concern” under Section 3 of the Small Business Act. 8 Under the Small Business Act, a “small business concern” is one that: (1) is independently owned and operated; (2) is not dominant in its field of operations; and (3) meets may additional criteria established by the Small Business Administration (SBA). 9

40. The rules adopted in the Report and Order pertains to manufacturers of unlicensed communications devices. The appropriate small business size standard is that which the SBA has established for radio and television broadcasting and wireless communications equipment manufacturing. This category encompasses entities that primarily manufacture radio, television, and wireless communications equipment. 10 Under this standard, firms are considered small if they have 750 or fewer employees. 11 Census Bureau data for 1997 indicate that, for that year, there were a total of 1,215 establishments  12 in this category. 13 Of those, there were 1,150 that had employment under 500, and an additional 37 that had employment of 500 to 999. The percentage of wireless equipment manufacturers in this category is approximately 61.35%, 14 so the Commission estimates that the number of wireless equipment manufacturers with employment under 500 was actually closer to 706, with an additional 23 establishments having employment of between 500 and 999. Given the above, the Commission estimates that the great majority of wireless communications equipment manufacturers are small businesses.

41. Part 15 transmitters are already required to be authorized under the Commission's certification procedure as a prerequisite to marketing and importation. See 47 CFR 15.101, 15.201, 15.305, and 15.405. The changes adopted in this proceeding would not change any of the current reporting or recordkeeping requirements. Further, the regulations add permissible measurement techniques and methods of operation. The rules would not require the modification of any existing products.

42. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives: (1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.

43. At this time, the Commission does not believe the rule changes contained in this Report and Order will have a significant economic impact on small entities. The Report and Order does not impose new device design standards. Instead, it relaxes the rules with respect to the types of devices which are allowed to operate pursuant to the Commission's regulations. There is no burden of compliance with the changes. Manufacturers may continue to produce devices which comply with the former rules and, if desired, design devices to comply with the new regulations. The rules will apply equally to large and small entities. Therefore, there is no inequitable impact on small entities. Finally, the Report and Order does not include a deadline for implementation. The Commission believes that the rules are relatively simple and do not require a transition period to implement. An entity desiring to take advantage of the relaxed regulations may do so at any time.

44. The Commission finds that the rule changes contained in this Report and Order will not present a significant economic burden to small entities.

45. The Commission will send a copy of the Report and Order, in a report to be sent to Congress and the General Accounting Office pursuant to the Congressional Review Act, See 5 U.S.C. 801(a)(1)(A).

46. Parts 2 and 15 of the Commission's rules ARE AMENDED as specified in Rule Changes, effective October 7, 2004, except for §§ 2.913(c), 2.926(c), 2.929(c) and 2.929(d) which contains information collection requirements that are not effective until approved by the Office of Management and Budget. The FCC will publish a document in the Federal Register announcing the effective date for those sections. This action is taken pursuant to the authority contained in sections 4(i), 301, 302, 303(e), 303(f), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 301, 302, 303(e), 303(f), and 303(r).

47. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of the Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

This is a summary of the Second Report and Order (R&O), adopted on August 18, 2004, and released on August 25, 2004. The full text of the Second 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. This 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 FCC@BCPIWEB.com. This R&O contains a modified information collection subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of Management and Budget (OMB) for review under the PRA. OMB, the general public, and other Federal agencies are invited to comment on the modified information collection contained in this proceeding.

This R&O contains a modified information collection. Specifically, the Commission previously obtained Office of Management and Budget (OMB) approval for submission of the post-implementation call center report in paper format (See OMB Control Number 3060-1059). The Second Report and Order requires mandatory electronic filing of these reports. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the OMB to comment on the information collection(s) contained in this R&O, as required by the Paperwork Reduction Act (PRA) of 1995, Public Law 104-13. Public and agency comments are due November 8, 2004. PRA comments should address: (a) Whether the modified collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment on how we might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”

OMB Control Number: 3060-1059.

Title: Revision of the Commission's rules to Ensure Compatibility With Enhanced 911 Emergency Calling Systems; Amendment of parts 2 and 25 to Implement the Global Mobile Personal Communications by Satellite (GMPCS) Memorandum of Understanding.

Form No.: Not applicable.

Type of Review: Revision of a currently approved collection.

Respondents: 25 respondents.

Estimated Number of Responses: 75 responses.

Estimated Time Per Response: 1-2 hours.

Frequency of Response: On occasion, annual and other reporting requirements, recordkeeping requirement.

Estimated Total Annual Burden: 75 hours.

Estimated Total Annual Costs: $8,000.

Privacy Act Impact Assessment: Not applicable.

Needs and Uses: The Commission released a Second Report and Order titled, “Revision of the Commission's rules to Ensure Compatibility With Enhanced 911 Emergency Calling Systems; Amendment of parts 2 and 25 to Implement the Global Mobile Personal Communications by Satellite (GMPCS) Memorandum of Understanding and Arrangements; Petition of the National Telecommunications and Information Administration (NTIA) to Amend part 25 of the Commission's rules to Establish Emissions Limits for Mobile and Portable Earth Stations Operating in the 1610-1660.5 MHz Band,” CC Docket No. 94-102; IB Docket No. 99-67, FCC 04-201. (E911 Scope Second R&O).

In the E911 Scope Second R&O, the Commission concluded that pursuant to § 25.143, Mobile Satellite Service (MSS) carriers must file annual reports with the Commission electronically beginning October 15, 2005. The reports will include carrier and call center contact information, the aggregate number of calls received by the call center each month during the relevant reporting period, and the number of those calls that required forwarding to a PSAP. The MSS carriers' filing of post-implementation reports with the Commission annually will help the Commission to monitor compliance with the call center requirement and determine whether modification to the requirement is warranted. The reports will also be a means of updating the public record on call center contact information. The Commission is revising OMB Control Number 3060-1059 to implement mandatory electronic filing for the post-implementation reports beginning October 15, 2005. The number of respondents, annual burden hours, etc. include the pre-implementation report that MSS carriers will file with the Commission one-time only on October 12, 2004. A Correction Worksheet (OMB 83-c) will be submitted to the Office of Management and Budget (OMB) to remove the paperwork burden associated with the pre-implementation report after October 12, 2004.

The information collections that result from the E911 Scope Second R&O are used by the Commission under its authority to license commercial satellite services in the United States. Without the collection of information that would result from these proposed rules, the Commission would not be able to monitor the MSS carriers' establishment of call centers which are essential to provide emergency services, such as handling emergency 911 telephone calls from American citizens. The recordkeeping and reporting requirements include data on MSS call center use such as the aggregate number of calls that the call centers receive and the number of calls that required forwarding to a local PSAP. The Commission will use this data to monitor compliance with the call center requirement and track usage trends. Such information would be useful to the Commission in considering whether FCC rules require modification to accommodate the changing market.

1. In this Second Report and Order, we adopt recordkeeping and reporting requirements in connection with implementation of the mobile satellite service (MSS) 911 emergency call center rule. The Commission adopted the call center rule in 2003, Revision of the Commission's rules to Ensure Compatibility with Enhanced 911 Emergency Calling Systems, CC Docket No. 94-102, IB Docket No. 99-67, Report and Order and Second Further Notice of Proposed Rulemaking, 18 FCC Rcd 25340, 2003, and stated that it would become effective 12 months after Federal Register publication, which occurred on February 11, 2004. See Report and Order and Second Further Notice of Proposed Rulemaking, 69 FR 6578, February 11, 2004. The new reporting requirements that we adopt today will ensure that MSS carriers deploy their emergency call centers by February 11, 2005, in a timely manner and that all stakeholders (including the Commission, service providers, public safety organizations, and customers) are informed during the implementation and operation of these centers. Reliable communications systems for public safety and Homeland Security are core goals of the Commission in serving the public interest. This decision represents a balanced approach, which takes into consideration the expectations of consumers and the need to strengthen Americans' ability to access public safety entities in times of crisis, including for Homeland Security purposes.

2. Discussion. We will require MSS carriers to file pre-implementation status reports concerning their respective plans to deploy emergency call centers. We conclude that this requirement will encourage carrier planning efforts (particularly those carriers that do not already provide emergency call centers) and discussions with other necessary participants in the public safety community. Advance notification will inform stakeholders how MSS carriers intend to connect with PSAPs. Contrary to Globalstar's assertions, we believe that a certification of compliance would arrive too late to stimulate advance discussions with the public safety community. These discussions may be instrumental in ensuring that MSS carriers have the necessary resources to handle effectively emergency call traffic. Rather than have the pre-implementation report due three months prior to the effective date (as proposed), we require MSS carriers to submit these reports by October 12, 2004, four months prior to the call center rule's effective date. We believe that an October deadline will (a) give carriers sufficient time to prepare their reports and (b) allow for any public safety coordination that may be necessary prior to February 11, 2005.

3. The pre-implementation reports should include the following information: (a) Carrier identification information, including the person or persons filing the report and contact information; (b) a description of the carrier's coverage area; (c) basic call center information, including location and plans for routing emergency calls to PSAPs; (d) a description of how the call center features will be communicated to customers; and (e) an indication of any problems that the carrier has experienced in organizing its call center. We anticipate that the reports will be brief due to the limited nature of the information we are seeking, and therefore the reporting requirement should not impose substantial new burdens on carriers. In order to minimize any burden, we permit the electronic filing of the reports, which will be available on the Commission's Web site for ease of accessibility. Those carriers choosing to submit paper reports should submit an original and one copy to the Secretary's office to the attention of the Chief of the International Bureau at 445 12th Street, SW., Washington, DC 20554. We will also direct the Chief, International Bureau, to issue a public notice addressing the administrative details of the electronic submissions. Carriers may make changes in their plans after the report is filed, but to the extent that any substantial changes occur, carriers must file updates to their reports within 30 days of the adoption of any such change. We believe that the pre-implementation reports will provide valuable information for coordinating carrier plans with PSAPs and will assist our efforts to monitor implementation of the call center rule in a timely manner. If a carrier anticipates that it will not be able to meet the February 11, 2005, deadline for call center deployment, it should file a request for extension of time as early as possible in advance of the February 2005 deadline.

4. Discussion. We believe that collection of call center data will benefit the public interest. We will require that MSS carriers keep track of all calls received at their emergency call centers. (The Commission does not require a similar call tracking requirement for other wireless carriers. The number of 911 calls currently received by MSS carriers is significantly lower than that received by terrestrial wireless carriers. In addition, the different nature of the 911 requirements and technological nature of the different services provides for a different approach in reporting requirements. Cellular and PCS providers are required to use technological solutions to automatically route 911 calls to the proper emergency personnel. Under the call center rule, MSS carriers must rely on staff at a call center to route the 911 call.) The reporting requirement on the number of calls received will assist us in monitoring a number of issues, including whether MSS carriers are complying with the call center rule, whether call centers are capable of handling 911 call traffic, and whether network enhancements would be necessary to improve the transfer of emergency calls from the call center to PSAPs. In addition, any MSS carriers that begin operation after February 11, 2005 would not be subject to a pre-implementation report; rather, they would need to comply with the call center requirement when operations begin (to the extent that two-way interconnected voice service is provided, consistent with our MSS call center policies). The post-implementation call center data reports would provide the only records on file at the Commission concerning those carriers' emergency call centers. MSS carriers must also identify which calls required forwarding to a PSAP and which did not. As we stated in the E911 Scope Second Further Notice, we believe that this data will be useful in assisting the Commission in monitoring compliance with the call center requirement as well as determining whether modification to the requirement is warranted. As suggested by NENA/NASNA, we will not require carriers to supply customer-specific information with these reports. Instead, carriers may submit the information in aggregate form. These reports must be filed once per year by each MSS carrier subject to the call center rule. In order to reduce the burden on carriers, the call center report will be due on the same day that MSS licensees must file their annual reports pursuant to § 25.143. See 47 CFR 25.143(e). Operators of 1.6/2.4 GHz MSS and 2 GHz MSS systems must file reports on October 15 of each year concerning various aspects of their satellite system. Operators of MSS in other bands ( e.g., L-band) are subject to the annual reporting requirements contained in § 25.210(l), which designates June 30 of each year as the reporting deadline. See 47 CFR 25.210(l). Therefore, the first call center reports will be due on October 15, 2005. Those MSS carriers that have a June 30 annual reporting requirement may submit their first post-implementation call center status reports on June 30, 2006.

5. We do not believe that this reporting requirement will impose substantial burdens on carriers, contrary to Globalstar's position. The information that we are collecting is minimal. Consistent with the Commission's recent requirement that all part 25 related filings be filed electronically, Amendment of the Commission's Space Station Licensing Rules and Policies, 2000 Biennial Regulatory Review—Streamlining and Other Revisions of part 25 of the Commission's rules Governing the Licensing of, and Spectrum Usage by, Satellite Network Earth Stations and Space Stations, IB Docket Nos. 02-34 and 00-248, Fourth Report and Order, 69 FR 47790, August 6, 2004, we require the post-implementation report to be filed electronically. We will also make these reports available on our Web site, and direct the Chief, International Bureau, to issue a public notice addressing the administrative details of the electronic submissions. We received no comments on our proposal to establish a sunset provision for a post-implementation reporting requirement. We anticipate that this requirement will sunset of its own accord after we transition MSS from 911 call centers to an automated E911 system following the conclusion of NRIC VII. Until that time, the data that carriers collect will provide valuable information that will assist in monitoring usage trends and also will help public safety organizations assess call center effectiveness. Usage trends may be an indicator of the need to modify the call center rule to be more responsive to call traffic or the need to hasten the transition to automatic delivery of MSS 911 calls to PSAPs.

6. Discussion. When we adopted the MSS call center requirement, we stated that call center operators must obtain the caller's phone number and location. We clarify now that call centers may share this information with the PSAP that receives the forwarded call. We must ensure that PSAPs can reconnect interrupted emergency calls as quickly as possible. We agree with NENA/NANSA's assertion that section 222(d) of the Communications Act permits MSS call centers to disclose to a PSAP any customer-specific information necessary to “reconnect with the caller and proceed with the emergency response.” (NENA/NASNA comments at 4). Moreover, MSS call centers are permitted under section 222(g) to provide PSAPs with subscriber listed and unlisted information (including caller name and number) in order to assist in the delivery of emergency services. Consequently, there is no need for us to determine here whether a call center meets the definition of a PSAP.

7. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Revision of the Commission's rules to Ensure Compatibility With Enhanced 911 Emergency Calling Systems Second Further Notice of Proposed Rulemaking (2nd FNPRM). The Commission sought written public comment on the proposals in the 2nd FNPRM, including comment on the IRFA. This present Final Regulatory Flexibility Analysis (FRFA) for the Second Report and Order conforms to the RFA.

8. The Second Report and Order issues new reporting and recordkeeping rules in connection with the implementation of the mobile satellite service (MSS) emergency call center rule, 47 CFR 25.284, that was initiated with the Second Further Notice of Proposed Rulemaking, CC Docket No. 94-102 and IB Docket No. 99-67. The Second Report and Order requires MSS carriers subject to the call center rule to file a report with the Commission that indicates the carrier's plans for establishing its emergency call center. This report will ensure that MSS carriers deploy their emergency call centers by February 11, 2005, in a timely manner and that all stakeholders (including the Commission, service providers, public safety organizations, and customers) are informed during the implementation and operation of these centers. The Second Report and Order also requires MSS carriers subject to the call center rule to file annual reports regarding contact information and call traffic data, including the aggregate number of calls received on a monthly basis and the number of those calls that required transferring to a public safety answering point (PSAP). The Commission takes this action in recognition of Congress' directive to “facilitate the prompt deployment throughout the United States of a seamless, ubiquitous, and reliable end-to-end infrastructure for communications, including wireless communications, to meet the Nation's public safety and other communications needs.” In addition, the Commission takes this action to ensure consumers' expectations regarding access to 911 service are met, to strengthen Americans' ability to access public safety. It has balanced those goals against the needs of entities offering these services to be able to compete in a competitive marketplace.

9. We received no comments directly in response to the IRFA in this proceeding.

10. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the adopted rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under section 3 of the Small Business Act (5 U.S.C. 601(3) (incorporating by reference the definition of “small business concern” in the Small Business Act, 15 U.S.C. 632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a small business applies “unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definitions(s) in the Federal Register .” Under the Small Business Act, a “small business concern” is one that: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA). A small organization is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.”

11. Incumbent Local Exchange Carriers. Neither the Commission nor the SBA has developed a specific small business size standard for providers of incumbent local exchange services. The closest applicable size standard under the SBA rules is for Wired Telecommunications Carriers. Under that standard, such a business is small if it has 1,500 or fewer employees. According to the FCC's Telephone Trends Report data, 1,337 incumbent local exchange carriers reported that they were engaged in the provision of local exchange services. Of these 1,337 carriers, an estimated 1,032 have 1,500 or fewer employees and 305 have more than 1,500 employees. Consequently, we estimate that the majority of providers of local exchange service are small entities that may be affected by the rules and policies adopted herein.

12. Competitive Local Exchange Carriers. Neither the Commission nor the SBA has developed a specific small business size standard for providers of competitive local exchange services. The closest applicable size standard under the SBA rules is for Wired Telecommunications Carriers. Under that standard, such a business is small if it has 1,500 or fewer employees. According to the FCC's Telephone Trends Report data, 609 companies reported that they were engaged in the provision of either competitive access provider services or competitive local exchange carrier services. Of these 609 companies, an estimated 458 have 1,500 or fewer employees and 151 have more than 1,500 employees. Consequently, the Commission estimates that the majority of providers of competitive local exchange service are small entities that may be affected by the rules.

13. Competitive Access Providers. Neither the Commission nor the SBA has developed a specific size standard for competitive access providers (CAPS). The closest applicable standard under the SBA rules is for Wired Telecommunications Carriers. Under that standard, such a business is small if it has 1,500 or fewer employees. According to the FCC's Telephone Trends Report data, 609 CAPs or competitive local exchange carriers and 35 other local exchange carriers reported that they were engaged in the provision of either competitive access provider services or competitive local exchange carrier services. Of these 609 competitive access providers and competitive local exchange carriers, an estimated 458 have 1,500 or fewer employees and 151 have more than 1,500 employees. Of the 35 other local exchange carriers, an estimated 34 have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that the majority of small entity CAPS and the majority of other local exchange carriers may be affected by the rules.

14. Local Resellers. The SBA has developed a specific size standard for small businesses within the category of Telecommunications Resellers. Under that standard, such a business is small if it has 1,500 or fewer employees. According to the FCC's Telephone Trends Report data, 133 companies reported that they were engaged in the provision of local resale services. Of these 133 companies, an estimated 127 have 1,500 or fewer employees and 6 have more than 1,500 employees. Consequently, the Commission estimates that the majority of local resellers may be affected by the rules.

15. Toll Resellers. The SBA has developed a specific size standard for small businesses within the category of Telecommunications Resellers. Under that SBA definition, such a business is small if it has 1,500 or fewer employees. According to the FCC's Telephone Trends Report data, 625 companies reported that they were engaged in the provision of toll resale services. Of these 625 companies, an estimated 590 have 1,500 or fewer employees and 35 have more than 1,500 employees. Consequently, the Commission estimates that a majority of toll resellers may be affected by the rules.

16. Interexchange Carriers. Neither the Commission nor the SBA has developed a specific size standard for small entities specifically applicable to providers of interexchange services. The closest applicable size standard under the SBA rules is for Wired Telecommunications Carriers. Under that standard, such a business is small if it has 1,500 or fewer employees. According to the FCC's Telephone Trends Report data, 261 carriers reported that their primary telecommunications service activity was the provision of interexchange services. Of these 261 carriers, an estimated 223 have 1,500 or fewer employees and 38 have more than 1,500 employees. Consequently, we estimate that a majority of interexchange carriers may be affected by the rules.

17. Operator Service Providers. Neither the Commission nor the SBA has developed a specific size standard for small entities specifically applicable to operator service providers. The closest applicable size standard under the SBA rules is for Wired Telecommunications Carriers. Under that standard, such a business is small if it has 1,500 or fewer employees. According to the FCC's Telephone Trends Report data, 23 companies reported that they were engaged in the provision of operator services. Of these 23 companies, an estimated 22 have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that a majority of local resellers may be affected by the rules.

18. Prepaid Calling Card Providers. The SBA has developed a size standard for small businesses within the category of Telecommunications Resellers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to the FCC's Telephone Trends Report data, 37 companies reported that they were engaged in the provision of prepaid calling cards. Of these 37 companies, an estimated 36 have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that a majority of prepaid calling providers may be affected by the rules.

19. Mobile Satellite Service Carriers. Neither the Commission nor the U.S. Small Business Administration has developed a small business size standard specifically for mobile satellite service licensees. The appropriate size standard is therefore the SBA standard for Satellite Telecommunications, which provides that such entities are small if they have $12.5 million or less in annual revenues. Currently, nearly a dozen entities are authorized to provide voice MSS in the United States. We have ascertained from published data that four of those companies are not small entities according to the SBA's definition, but we do not have sufficient information to determine which, if any, of the others are small entities. We anticipate issuing several licenses for 2 GHz mobile earth stations that would be subject to the requirements we are adopting here. We do not know how many of those licenses will be held by small entities, however, as we do not yet know exactly how many 2 GHz mobile-earth-station licenses will be issued or who will receive them. The Commission notes that small businesses are not likely to have the financial ability to become MSS system operators because of high implementation costs, including construction of satellite space stations and rocket launch, associated with satellite systems and services.

20. Other Toll Carriers. Neither the Commission nor the SBA has developed a specific size standard for small entities specifically applicable to “Other Toll Carriers.” This category includes toll carriers that do not fall within the categories of interexchange carriers, operator service providers, prepaid calling card providers, satellite service carriers, or toll resellers. The closest applicable size standard under the SBA rules is for Wired Telecommunications Carriers. Under that standard, such a business is small if it has 1,500 or fewer employees. According to the FCC's Telephone Trends Report data, 92 carriers reported that they were engaged in the provision of “Other Toll Services.” Of these 92 carriers, an estimated 82 have 1,500 or fewer employees and ten have more than 1,500 employees. Consequently, the Commission estimates that a majority of “Other Toll Carriers” may be affected by the rules.

21. Wireless Service Providers. The SBA has developed a size standard for small wireless businesses within the two separate categories of Cellular and Other Wireless Telecommunications and Paging. Under these standards, such a business is small if it has 1,500 or fewer employees. According to the FCC's Telephone Trends Report data, 1,387 companies reported that they were engaged in the provision of wireless service. Of these 1,387 companies, an estimated 945 have 1,500 or fewer employees and 442 have more than 1,500 employees. Consequently, we estimate that a majority of wireless service providers may be affected by the rules.

22. Paragraphs 10-14 of the Second Report and Order require that all MSS licensees subject to the emergency call center requirement both (a) submit implementation progress reports prior to the effective date of the call center requirement and (b) record data on call center operations for annual reporting purposes. See also Section E, infra .

23. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.

24. The critical nature of the 911 and E911 proceedings limit the Commission's ability to provide small carriers with a less burdensome set of E911 regulations than that placed on large entities. A delayed or less than adequate response to an E911 call can be disastrous regardless of whether a small carrier or a large carrier is involved. Prior to adoption of the call center rule, 47 CFR 25.284, MSS carriers had been exempt from the Commission's 911 and E911 regulations.

25. As mentioned, the Second Report and Order sets forth reporting and recordkeeping requirements in connection with implementation of the MSS emergency call center requirement. The first reporting requirement is a one-time filing that MSS carriers (those subject to the call center rule) must submit, electronically, prior to the effective date of the call center rule. This report would provide the Commission, the public, and the public safety community with valuable information concerning the carrier's plans to establish an emergency call center. Call center 911 service is a new form of 911 service, and the Second Report and Order also requires collection of call center data, including the number of calls received during a given period and the number of calls requiring forwarding to a public safety answering point (PSAP). To minimize burdens on MSS carriers, including small entities, the Second Report and Order requires that the annual call center data reports be filed electronically and that the deadline for submission be consistent with the deadline for satellite operators' annual satellite reports.

26. By tailoring its rules in this manner, the Commission seeks to fulfill its obligation of ensuring “a seamless, ubiquitous, and reliable end-to-end infrastructure for communications, including wireless communications, to meet the Nation's public safety and other communications needs.”

27. The Commission will send a copy of the Second Report and Order, including this FRFA, in a report to be sent to Congress pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the Second Report and Order, including the FRFA, to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the Second Report and Order and FRFA (or summaries thereof) will also be published in the Federal Register . See 5 U.S.C. 604(b).

28. It is ordered, that pursuant to sections 1, 4(i), 7, 10, 201, 202, 208, 214, 222(d)(4)(A)-(C), 222(f), 222(g), 222(h)(1)(A), 222(h)(4)-(5), 251(e)(3), 301, 303, 308, and 310 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 157, 160, 201, 202, 208, 214, 222(d)(4)(A)-(C), 222(f), 222(g), 222(h)(1)(A), 222(h)(4)-(5), 251(e)(3), 301, 303, 308, 310, this Second Report and Order is hereby adopted .

29. It is further ordered that the rule changes set forth will become effective on February 14, 2005.

30. It is further ordered that, pursuant to 47 U.S.C. 155(c) and 47 CFR 0.261, the Chief of the International Bureau is delegated authority to prescribe and set forth procedures for the implementation of the provisions adopted herein.

31. It is further ordered that the Commission's Office of Consumer and Government Affairs, Reference Information Center, shall send a copy of this Second Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

The Research and Special Programs Administration (RSPA, we) annually reviews the Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) to identify errors that may confuse readers. Inaccuracies corrected in this final rule include typographical and printing errors, incorrect references to regulations in the CFR, inconsistent use of terminology, and misstatements of certain regulatory requirements. In addition, we are making certain other changes to improve the clarity of certain HMR requirements.

Because these amendments do not impose new requirements, notice and public procedure are unnecessary. In addition, making these amendments effective without the customary 30-day delay following publication will allow the changes to appear in the next revision of 49 CFR.

The following is a section-by-section summary of the amendments made under this final rule. It does not discuss all minor editorial corrections (for example, punctuation errors) and certain other minor adjustments to enhance the clarity of the HMR.

Section 106.70. In paragraph (b), in the first sentence, the wording “on you which are commenting” is revised to read “on which you are commenting.”

Section 107.219. In paragraph (c), we are removing an obsolete reference to § 107.201(c).

Appendix A to Subpart D of Part 107: In Appendix A to subpart D of part 107, in the List of Frequently Cited Violations in Part II, under the heading “General Requirements” under “B. Training requirements:” entry 2. b., we are updating the Baseline assessment from “$250” to read “$275”. Also under the heading “Offeror Requirements—All hazardous materials,” under “D. Package Marking Requirements,” we are correcting the section reference “§ 172.303(a)(4)” to read “§ 172.304(a)(4)” in entry 8.

Section 171.6. In paragraph (b)(2), the table of OMB control numbers is revised to reflect current affected sections for OMB Control Number 2137-0557.

Section 172.101 Hazardous Materials Table (HMT). We are amending the HMT to correct certain entries, as follows:

Section 172.102. In paragraph (c)(7)(vi)(D)(3), we are correcting the spelling of the word “not.”

Section 172.202. In paragraph (a)(2), we are correcting the reference to the section number for the Hazardous Materials Table. In paragraph (a)(2)(ii), we are correcting a proper shipping name by adding “n.o.s.” to “Combustible liquid.”

Section 172.512. In paragraphs (a)(3) and (b)(3), we are correcting section references.

Section 173.32. In paragraph (c)(3), in the second sentence, we are correcting the reference “§ 178.275(f)(4)” to read “§ 178.275(f)(1).”

Section 173.61. In paragraph (c), we are correcting the ID number “NA 0350” to read “UN 0350.”

Section 173.133. Paragraphs (b)(1)(i) and (iii), in the formula, we are correcting “LC50 i ” to read “LC 50i ” and “L C50i ” to read “LC 50i .”

Section 173.185. Paragraphs (g)(2) and (j) are corrected to provide the correct section reference.

Section 173.225. In the Organic Peroxide Table, for the entry “tert-Butyl peroxyneodecanoate [as a stable dispersion in water],” UN3117, ≤52, under column (6), “Packing method” we are removing “, IBC” which is an error. Section 173.225(b)(6) states that the designation “IBC” means that Special Provision IB52 in the Hazardous Material Table in § 172.102 applies. Special Provision IB52 does not list “UN3117” as an authorized hazardous material for transport in an IBC. An IBC, however, may be authorized for this hazardous material when approved by the Associate Administrator as stated in § 172.102(c)(4).

Section 173.315. In paragraph (j)(3), in the last sentence, we are correcting the reference “§ 177.834(g)” to read “§ 177.834(a).”

Section 173.316. In paragraph (b), we are making a minor editorial revision and correcting the reference “§ 173.34(d)” to read “§ 173.301(f).”

Section 178.68. In paragraph (i)(2), in the first sentence, we are correcting the reference “(i)(1)(i)” to read “(i)(1).”

Section 178.276. In paragraph (f), we are correcting the section reference “§ 178.275(h)” to read “§ 178.275(i).”

Section 178.358-5. In paragraph (c), we are correcting the parenthetical phase “(incorporated by reference; see § 171.1 of this subchapter)” to read “(IBR, see § 171.7 of this subchapter).”

Section 178.609. We are revising the wording in paragraphs (d)(1) and (2) to clarify test requirements for infectious substances packagings.

Section 178.707. In paragraph (c)(3)(iv), in the first sentence, we are correcting the wording “INCs” to read “IBCs.”

Section 179.200-16. In paragraph (e), in the last sentence, we are correcting the section reference “§ 179.201-1(a)” to read “§ 179.201-1.”

Section 179.220-17. In paragraph (e), in the last sentence, we are correcting the section reference “§ 179.221-1(a)” to read “§ 179.221-1.”

Section 179.300-1. We are revising the section heading to remove an obsolete reference to § 179.302.

Section 180.403. In the definition for “Replacement of a barrel,” we are correcting the section reference “§ 178.337-1” to read “§ 178.320.”

Section 180.417. Paragraph (b)(1)(v) is duplicative of the requirement in paragraph (b)(2)(v). Therefore, we are removing paragraph (b)(1)(v) and redesignating paragraph (b)(2)(v) as paragraph (b)(1)(v). Paragraph (b)(2)(v) is being reserved.

This final rule is not considered a significant regulatory action under section 3(f) of Executive Order 12866 and, therefore, was not reviewed by the Office of Management and Budget. This rule is not significant under the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034). Because there is no economic impact of this rule, preparation of a regulatory impact analysis is not warranted.

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

RSPA is not aware of any State, local, or Indian tribe requirements that would be preempted by correcting editorial errors and making minor regulatory changes. This final rule does not have sufficient federalism impacts to warrant the preparation of a federalism assessment.

This rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Because this rule does not have tribal implications and does not impose substantial direct compliance costs, the funding and consultation requirements of Executive Order 13175 do not apply.

I certify that this final rule will not have a significant economic impact on a substantial number of small entities. This rule makes minor regulatory changes which will not impose any new requirements on persons subject to the HMR; thus, there are no direct or indirect adverse economic impacts for small units of government, businesses or other organizations.

This rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $120.7 million or more to either State, local, or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objective of the rule.

There are no new information collection requirements in this final rule.

A regulation identifier number (RIN) is assigned 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. The RIN number contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.

The NMFS Regional Administrator (RA) has adjusted the recreational fishery from the U.S.-Canada Border to Cape Falcon, OR with two regulatory modifications, and also reallocated the coho quota among two subareas. Effective Friday, August 13, 2004, regulations in the area from Cape Alava, WA to Cape Falcon, OR, (La Push, Westport, and Columbia River Subareas) were modified to have a minimum size limit for chinook of 24 inches (61.0 cm) total length; and for the area from Cape Alava to Queets River, WA (La Push Subarea) the daily bag limit was modified to: “all salmon, two fish per day, and all retained coho must have a healed adipose fin clip,” thus allowing for the retention of two chinook per day. In addition, 40,000 coho were reallocated from Queets River to Leadbetter Point, WA (Westport Subarea) quota, by transferring the coho on an impact neutral basis, to the coho quota in the subarea from the U.S.-Canada Border to Cape Alava, WA (Neah Bay Subarea), which increased the Neah Bay quota by 6,600 coho. On August 10, 2004, the Regional Administrator had determined the available catch and effort data indicated that the catch was less than anticipated preseason and that provisions designed to slow the catch of chinook could be modified. In addition, the Neah Bay subarea was projected to reach its coho quota, and because there were additional coho in the Westport subarea quota, a reallocation of the North of Cape Falcon overall quota could be done while still meeting conservation objectives and without impacting Westport subarea fishers.

All other restrictions remain in effect as announced for 2004 ocean salmon fisheries and previous inseason actions. These actions were necessary to conform to the 2004 management goals. Modification of the species that may be caught and landed during specific seasons and the establishment or modification of limited retention regulations are authorized by regulations at 50 CFR 660.409(b)(1)(ii). Modification of recreational bag limits is authorized by regulations at 50 CFR 660.409(b)(1)(iii). Modification of quotas and/or fishing seasons is authorized by regulations at 50 CFR 660.409(b)(1)(i).

In the 2004 annual management measures for ocean salmon fisheries (69 FR 25026, May 5, 2004), NMFS announced the recreational fisheries: the area from the U.S.-Canada Border to Cape Alava, WA (Neah Bay Subarea) would open June 27 through the earlier of September 19 or a 21,050-coho subarea quota, with a subarea guideline of 3,700 chinook; the area from Cape Alava to Queets River, WA (La Push Subarea) would open June 27 through the earlier of September 19 or a 5,200 coho subarea quota, with a subarea guideline of 1,900 chinook; in the area from the Queets River to Leadbetter Point, WA (Westport Subarea) would open June 27 through the earlier of September 19 or a 74,900 coho subarea quota, with a subarea guideline of 30,800 chinook; and the area from Leadbetter Point, WA to Cape Falcon, OR (Columbia River Subarea) would open June 27 through the earlier of September 30 or a 101,250-coho subarea quota, with a subarea guideline of 8,000 chinook. All subareas were restricted to a chinook minimum size limit of 26 inches (66.0 cm) total length. In addition, all of the subarea bag limits were for all salmon, two fish per day, no more than one of which may be a chinook, with all retained coho required to have a healed adipose fin clip.

The recreational fishery in the area from the Queets River, WA to Cape Falcon, OR (Westport and Columbia River Subareaa) was modified by Inseason Action #7 to be open 7 days per week, with a modified daily bag limit of all salmon, two fish per day, and all retained coho must have a healed adipose fin clip, effective Friday, July 23, 2004, thus allowing for the retention of two chinook per day (69 FR 52448, August 26, 2004,).

On August 10, 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 rates, and effort data indicated that the catch was less than anticipated preseason and that provisions designed to slow the catch of chinook could be modified, by relaxing the size and bag limit provisions. In addition, the Neah Bay subarea was projected to reach its coho quota, and because there were additional coho in the Westport subarea quota, a reallocation of the North of Cape Falcon overall quota could be done while still meeting conservation objectives and without impacting Westport subarea fishers. As a result, on August 10, 2004, the states recommended, and the RA concurred, that effective Friday, August 13, 2004, the recreational fishery from the U.S.-Canada Border to Cape Falcon, OR would be adjusted by the following: Regulations for the area from Cape Alava, WA to Cape Falcon, OR (La Push, Westport, and Columbia River Subareas) would be modified to have a minimum size limit for chinook of 24 inches (61.0 cm) total length; and the daily bag limit for the area from Cape Alava to Queets River, WA (La Push Subarea) would be modified to: “all salmon, two fish per day, and all retained coho must have a healed adipose fin clip,” thus allowing for the retention of two chinook per day. In addition, 40,000 coho from Queets River to Leadbetter Point, WA (Westport Subarea) quota would be transferred on an impact neutral basis to the coho quota in the area from the U.S.-Canada Border to Cape Alava, WA (Neah Bay Subarea), thereby increasing the Neah Bay quota by 6,600 coho. All other restrictions that apply to this fishery remain in effect as announced in the 2004 annual management measures and previous inseason actions.

The RA determined that the best available information indicated that the catch and effort data, and projections, supported the above inseason actions 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 regulatory actions were 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.

These actions do 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 the regulatory actions were provided to fishers through telephone hotline and radio notification. These actions comply 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 limit fishers appropriately controlled access to available fish during the scheduled fishing season by unnecessarily maintaining two restrictions. The action reduced the minimum size limit for chinook to 24 inches (61.0 cm) total length, which allowed for greater chinook salmon retention. The action also allowed fishers to land up to two of any species of salmon, previously only one of the two fish bag limit could be a chinook salmon.

These actions are authorized by 50 CFR 660.409 and 660.411 and are exempt from review under Executive Order 12866.