The golden nematode ( Globodera rostochiensis ) is a destructive pest of potatoes and other solanaceous plants. Potatoes cannot be economically grown on land which contains large numbers of the nematode. The golden nematode has been determined to occur in the United States only in parts of New York.

The golden nematode regulations (contained in 7 CFR 301.85 through 301.85-10 and referred to below as the regulations) list two entire counties and portions of seven other counties in the State of New York as regulated areas and restrict the interstate movement of regulated articles from those areas. Such restrictions are necessary to prevent the artificial spread of the golden nematode to noninfested areas of the United States.

Regulated areas are those areas in which the golden nematode has been found or in which there is reason to believe that the golden nematode is present, or those areas which it is deemed necessary to regulate because of their proximity to infestation or their inseparability for quarantine enforcement purposes from infested localities. The regulations provide that less than an entire State may be designated as a regulated area only if the Deputy Administrator determines that the State has adopted and is enforcing a quarantine or regulation that imposes restrictions on the intrastate movement of the regulated articles that are substantially the same as those that are imposed with respect to the interstate movement of the articles and the designation of less than the entire State as a regulated area will otherwise be adequate to prevent the artificial interstate spread of the golden nematode.

Regulated areas are divided into suppressive areas and generally infested areas. Suppressive areas are regulated areas where eradication of the golden nematode is undertaken as an objective. Generally infested areas are regulated areas not designated as suppressive areas. Restrictions are imposed on the interstate movement of regulated articles from generally infested areas and suppressive areas in order to prevent the infestation of areas where the golden nematode does not occur.

Recent surveys conducted by inspectors of the Animal and Plant Health Inspection Service (APHIS) have revealed that an infestation of golden nematode has occurred in one field outside the regulated area in Cayuga County, NY. New York has quarantined the infested area and is restricting the intrastate movement of regulated articles from that area to prevent the further spread of golden nematode. However, Federal regulations are necessary to restrict the interstate movement of regulated articles from the regulated areas to prevent the spread of golden nematode to other States and other countries.

In accordance with the criteria for listing regulated areas, we are amending the list of regulated areas in § 301.85-2a to include an additional part of Cayuga County, NY, in response to the recent golden nematode findings described above. The regulated area is described in the rule portion of this document. Maps of the regulated area are available by writing to the person listed under FOR FURTHER INFORMATION CONTACT or from local offices of Plant Protection and Quarantine.

This rulemaking is necessary on an emergency basis to prevent the artificial spread of golden nematode to noninfested areas of the United States. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this rule effective less than 30 days after publication in the Federal Register .

We will consider comments we receive during the comment period for this interim rule ( see DATES above). After the comment period closes, we will publish another document in the Federal Register . The document will include a discussion of any comments we receive and any amendments we are making to the rule.

This rule has been reviewed under Executive Order 12866. For this action, the Office of Management and Budget has waived its review under Executive Order 12866.

We are amending the golden nematode regulations by adding a field in Cayuga County, NY, to the list of generally infested regulated areas. This action is necessary to prevent the artificial spread of golden nematode to noninfested areas of the United States.

The Regulatory Flexibility Act requires that agencies consider the economic impact of their rules on small entities and to use flexibility to provide regulatory relief when regulations create economic disparities between different sized entities. According to the Small Business Administration's (SBA's) Office of Advocacy, regulations create economic disparities based on size when they have significant economic impact on a substantial number of small entities.

Potato farms are classified as small businesses if they receive less than $750,000 in annual sales receipts. The U.S. Department of Agriculture's National Agricultural Statistics Service does not publish data on farm size for New York potato farms. However, it is likely that the regulated farm in Cayuga County qualifies as a small business as defined by the SBA.

In the United States, the potato is the leading vegetable in terms of acreage and farm value. About 1.3 million acres are grown for a total production yield of 31.4 billion pounds, worth $2.5 billion in farm receipts. Over 60 percent of U.S. potato production is processed. Growth in the chip market alone has averaged about 11 percent per year over the past 8 years, resulting in a $4 billion industry. The market for exported, processed potatoes is a rapidly growing one.

Golden nematode infestation of potatoes and other solanaceous plants ( e.g. , tomatoes, eggplants) poses a threat to New York's agricultural economy. New York State is the twelfth largest potato producer nationwide. According to the New York Agricultural Statistics Service, in 2002 New York State had approximately 22,200 planted acres of potatoes with a production value totaling $65 million. About 55 percent of New York State's potato production is destined for the fresh market, 40 percent for processing ( i.e. , potato chips), and 5 percent for seed and livestock feed. New York State potatoes and potato products are primarily consumed locally and within the northeastern portion of the United States. In 2001, the production value of major solanaceous plants in New York was $92.4 million.

The additional costs associated with our designation of the new regulated area in Cayuga County are very small relative to the benefits gained from agricultural sales. For example, the treatment costs for the infected fields are borne by APHIS and not the farmer. The only inconvenience to the farm operator might be that potatoes or any other solanaceous plants may be planted only every other year until the infestation is determined to be over. In the event that the farm operator needs to move farm equipment outside the farm, that equipment must first be treated, either chemically or with steam. The costs of treatment are borne by APHIS. It takes one 8-hour day for a Plant Protection and Quarantine officer and a technician to steam treat farm equipment, including the time required to set up and tear down the treatment site. Since the farm operator does not have to pay for any aspect of this treatment, this rule will not have any adverse economic impact on this farm.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.

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

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

This interim rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

This rule is issued under Marketing Agreement No. 84 and Marketing Order No. 905, both as amended (7 CFR part 905), regulating the handling of oranges, grapefruit, tangerines, and tangelos grown in Florida, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

USDA is issuing this rule in conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to retroactive effect. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under Section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This rule continues in effect an exemption for shipments of small quantities of tree run citrus from the grade, size, and assessment requirements under the order. Tree run fruit is quality citrus picked and boxed in the field and taken directly to market without being graded or sized. By providing this exemption, producers can ship 150 1 3/5 bushel boxes per variety, per shipment, of their own citrus free from order regulations. Total shipments cannot exceed 3,000 boxes per variety, per season. The Committee believes this action may be a way to increase fresh market shipments, develop new markets, and improve grower returns. This action was recommended unanimously by the Committee at its meeting on June 15, 2004.

Section 905.80 of the order provides authority for the Committee to exempt certain types of shipments from regulation. Exemptions can be implemented for types of shipments of any variety in such minimum quantities, or for such purposes as the Committee, with the approval of USDA, may specify. No assessment is levied on fruit so shipped. The Committee shall, with the approval of USDA, prescribe such rules, regulations, or safeguards as it deems necessary to prevent varieties handled under the provisions of this section from entering channels of trade for other than the purposes authorized by this section.

Section 905.149 of the order's rules and regulations defines grower tree run citrus and outlines the procedures to be used for growers to apply to the Committee to ship their own tree run citrus exempt from grade, size, and assessment requirements. The provisions were originally established just for the 2002-03 season, then extended for the 2003-04 season. During the 2003-04 season, growers were allowed to ship a maximum of 150 1 3/5 bushel boxes per variety, per shipment, up to a seasonal total of 3,000 boxes per variety of their tree run fruit free from order requirements.

For the past two seasons, the Committee has utilized the provisions of § 905.149 on an annual basis. Rather than making this recommendation each year, the Committee recommended that the provisions of § 905.149 be established on a continuous basis. However, growers must receive approval from the Committee before they can utilize this exemption.

According to Florida Department of Citrus (FDOC) regulation 20-35.006, “Tree run grade is that grade of naturally occurring sound and wholesome citrus fruit which has not been separated either as to grade or size after severance from the tree.” Also, (FDOC) regulation 20-62.002 defines wholesomeness as fruit free from rot, decay sponginess, unsoundness, leakage, staleness, or other conditions showing physical defects of the fruit. By definition, this fruit is handled by the grower and bypasses normal handler operations. Prior to implementation of the exemption, all tree run citrus had to meet all requirements of the marketing order, as well as State of Florida Statutes and Florida Department of Citrus regulations. Even with this rule, tree run citrus must continue to meet applicable State of Florida Statutes and Florida Department of Citrus regulations, including inspection and any container marking requirements. However, growers will be able to pick, box, ship directly to buyers, and avoid the costs incurred when citrus is handled by packinghouses.

During the season prior to the utilization of § 905.149, small producers of Florida citrus expressed concerns about problems incurred when trying to sell their citrus. costs, These concerns included increasing production costs, limited returns, and the availability of markets. For some growers, there is limited demand for the variety of citrus they produce or they do not produce much volume. Consequently, they have difficulty getting packinghouses to pack their fruit. These problems, along with market conditions, have driven a fair number of small citrus growers out of the citrus industry.

According to the Florida Agricultural Statistics Service, from 1998-99 to 2002-03, fresh grapefruit sales have dropped 22 percent and fresh orange shipments are down 11 percent. This means fewer cartons are being packed. This can cause problems for varieties that may be out of favor with handlers and consumers, or for a particular variety of fruit where there may be a glut on the market. As a result, packinghouses do not wish to become over stocked with fruit which is difficult to market and therefore, will not pack less popular minor varieties of fruit or fruit that is in oversupply. Packinghouses do not want to pack what they cannot sell. These factors have caused wholesome fruit to be shipped to processing plants or left on the tree.

When citrus cannot be sold into the fresh market, it can be sold to the processing plants. However, the prices received are considerably lower. During the last seven seasons, only the 1999-2000 season produced on-tree returns for processed grapefruit that exceeded one dollar per box. Over the period from 1998-99 through 2002-03, the differential between fresh prices and processed prices has averaged $4.43 per box for grapefruit and $2.20 per box for oranges. Hence, many growers would prefer to ship to the fresh market.

In addition, the costs associated with growing for the fresh market are greater than the costs for growing for processed market. While the costs of growing for the fresh market have been increasing, in many cases the returns to the grower have been decreasing. The cost of picking, packing, hauling, and associated handling costs for fresh fruit is sometimes greater than the grower's return on the fruit. In some cases, where the cost of harvesting exceeds the returns to the grower or the grower cannot find a buyer for the fruit, economic abandonment can occur. According to information from the National Agricultural Statistics Service, the seasons of 1995-96, 1996-97, 1997-98, and 2000-01 had an average economic abandonment of two million boxes or more of red seedless grapefruit alone.

As a result, growers are looking for other outlets for their fruit in an effort to increase returns. Some growers believe secondary markets exist which are not currently being supplied that would provide additional outlets for their citrus. They think niche markets exist that could be profitable and want the opportunity to continue servicing them. They believe they can ship quality fruit directly to out-of-state markets and that it would be well received.

These growers contend tree run citrus does not need a minimum grade and size to be marketable, and that they can supply quality fruit to secondary markets not served by packed fruit. However, they believe they need to bypass normal handler operations and the associated costs for it to be profitable.

To address these concerns, the Committee recommended for the past two seasons that producers be allowed to ship small quantities of their own production directly to the market exempt from order requirements. The exemption was established on an annual basis for the 2002-03 season [68 FR 4361, January 29, 2003] and for the 2003-04 season [68 FR 68717, December 10, 2003]. The exemption for the 2003-04 season expired July 31, 2004.

The Committee recommended this exemption on a yearly basis for the past two seasons to determine its affect and how fruit shipped under the exemption was received on market. The Committee was interested in whether markets existed that packed fruit was not supplying. They also wanted an indication of the number of growers interested in utilizing the exemption and the volume of citrus shipped under the exemption. In addition, the Committee wanted information regarding any compliance issues or any impact on competitive outlets.

During the 2003-04 season, 101 growers were approved to ship under the exemption. Approximately 40 growers actually used the exemption, shipping a total of nearly 16,000 1 3/5 bushel boxes of oranges, grapefruit, tangerines, and tangelos. This is an increase from 23 growers shipping approximately 4,500 boxes during the 2002-03 season. Those producers who took advantage of the exemption believe that the program was successful. They were able to sell their fruit and supply markets not already supplied by traditional packers. Growers also believe more markets exist. They think with time, they can identify additional markets. Thus, growers want to continue to have the opportunity to supply these markets.

The Committee had agreed that following the 2003-04 season, it would review the information provided by growers who applied for and used the tree run exemption to determine if the exemption should be continued. In the June 15, 2004, meeting, the Committee discussed this issue, and considered the impact and benefits of the exemption.

The Committee also reviewed a letter in support of the exemption from Florida Citrus Mutual, a large grower organization. The Committee believes that markets have been developed and that tree run fruit will continue to be sold primarily to non-competitive, niche markets, such as farmers' markets, flea markets, roadside stands, and similar outlets and will not compete with non-exempt fruit shipped under the order. Fruit is sold in similar markets within the State, and such markets have been successful. Continuing this exemption allows growers to sell directly to similar markets outside of the State, supplying markets that might not otherwise be supplied. The Committee believes this action will allow the industry to service more non-traditional markets and may be a way to increase fresh market shipments and to develop new markets. Consequently, the Committee voted unanimously to extend the tree run exemption on a continuous basis.

Growers will continue to be required to apply to the Committee, on the “Grower Tree Run Certificate Application” form provided by the Committee, for an exemption to ship tree run citrus fruit to interstate markets. On this form, the grower must provide their name; address; phone number; legal description of the grove; variety of citrus to be shipped; and the approximate number of boxes produced in the specified grove. The grower must also certify that fruit to be shipped comes from the grove owned by the grower applicant. The application form will be submitted to the Committee manager and reviewed for completeness and accuracy. The manager will also verify the information provided. After the application has been reviewed, the manager will notify the grower applicant in writing whether the application is approved or denied.

Once the grower has received approval for their application for exemption and begins shipping fruit, a “Report of Shipments Under Grower Tree Run Certificate” form, also provided by the Committee, must be completed for each shipment. On this form, the grower will provide location of the grove, the amount of fruit shipped, the shipping date, and the type of transportation used to ship the fruit, along with the vehicle license number. The grower must supply the Road Guard Station with a copy of the grower certificate report for each shipment, and provide a copy of the report to the Committee. This report will enable the Committee to maintain compliance. Failure to comply with these requirements may result in the cancellation of a grower's certificate.

This rule does not affect the provision that handlers may ship up to 15 standard packed cartons (12 bushels) of fruit per day exempt from regulatory requirements. Fruit shipped in gift packages that are individually addressed and not for resale, and fruit shipped for animal feed are also exempt from handling requirements under specific conditions. Also, fruit shipped to commercial processors for conversion into canned or frozen products or into a beverage base are not subject to the handling requirements under the order.

Section 8e of the Act requires that whenever grade, quality, or maturity requirements are in effect for certain commodities under a domestic marketing order, including citrus, imports of that commodity must meet the same or comparable requirements. This rule does not change the minimum grade and size requirements under the order. Therefore, no change is necessary in the citrus import regulations as a result of this action.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.

There are approximately 11,000 producers of Florida citrus in the production area and approximately 75 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration (SBA) as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $5,000,000 (13 CFR 121.201).

Based on industry and Committee data, the average annual f.o.b. price for fresh Florida oranges, grapefruit, tangerines, and tangelos during the 2003-04 season was approximately $8.69 per 4/5 bushel carton, and total fresh shipments for the 2003-04 season were around 52 million cartons of oranges, grapefruit, tangerines, and tangelos. Twenty handlers handled approximately 66 percent of Florida's citrus shipments in 2003-04. Considering the average f.o.b. price, at least 55 percent of the orange grapefruit, tangerine, and tangelo handlers could be considered small businesses under SBA's definition. Therefore, the majority of Florida citrus handlers may be classified as small entities. The majority of Florida citrus producers may also be classified as small entities.

This rule establishes the provisions of § 905.149 of the rules and regulations on a continuous basis. This rule continues in effect an exemption for shipments of small quantities of tree run citrus from the grade, size, assessment requirements under the order. Growers must receive approval from the Committee before they can use this exemption. The Committee believes this action may be a way to increase fresh market shipments, develop new markets, and improve grower returns. Authority for this action is provided in § 905.80(e).

According to a study by the University of Florida—Institute of Food and Agricultural Sciences, production costs for the 2001-02 season ranged from $1.71 per box for processed oranges to $2.41 per box for grapefruit grown for the fresh market. The average packing charge for oranges is approximately $6.50 per box, for grapefruit the charge is approximately $5.75 per box, and for tangerines the charge can be as high as $9 per box. Sending fruit to a packinghouse can be cost prohibitive, especially for the small grower. This rule may provide an additional outlet for fruit that might otherwise be forced into the processing market or left on the tree altogether. For the 2003-04 season, this exemption accounted for additional fresh shipments totaling over 32,000 cartons.

This rule will not impose any additional costs on the grower. It will have the opposite effect of providing growers the opportunity to reduce the costs associated with having fruit handled by a packinghouse. This action will continue to allow growers to ship small quantities of their tree run citrus directly into interstate commerce exempt from the order's grade, size, and assessment requirements and their related costs. With this action, growers will be able to reduce handling costs and use those savings toward developing additional markets not serviced by the traditional packinghouses. This regulation will help growers by providing another outlet for their fruit. This will benefit all growers regardless of size, but it is expected to have a particular benefit for small growers who need additional revenue to meet operating costs.

The Committee considered one alternative to this action. The possible alternative was to not continue the exemption. However, the Committee believes the exemption provides other possible outlets for fruit and may help increase returns to growers. Therefore, this alternative was rejected.

In accordance with the Paperwork Reduction Act of 1995 44 U.S.C. Chapter 35), the information collection requirements contained in this rule have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0189. USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

The Committee's meeting was widely publicized throughout the citrus industry and all interested persons were invited to attend the meeting and participate in Committee deliberations. Like all Committee meetings, the June 15, 2004, meeting was a public meeting and all entities, both large and small, were able to express their views on this issue.

An interim final rule concerning this action was published in the Federal Register on August 16, 2004. Copies of the rule were mailed, e-mailed or faxed by the Committee staff to all Committee members and tree run citrus growers. In addition, the rule was made available through the Internet by the Office of the Federal Register and USDA. That rule provided for a 60-day comment period that ended October 15, 2004. No comments were received.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/fv/moab.html. Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

After consideration of all relevant material presented, including the Committee's recommendation, and other available information, it is hereby found that finalizing the interim final rule, without change, as published in the Federal Register (69 FR 50265, August 16, 2004) will tend to effectuate the declared policy of the Act.

The Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture (USDA) regulates the interstate movement of certain animals to prevent the spread of livestock and poultry diseases within the United States. The interstate movement regulations are contained in 9 CFR chapter I, subchapter C (parts 70 through 89). APHIS also has regulations providing for the payment of indemnity for certain animals that are destroyed to prevent the spread of various diseases. The indemnity regulations are contained in 9 CFR chapter I, subchapter B (parts 49 through 55). Among other things, the interstate movement regulations, as well as some of the indemnity regulations, contain requirements for the official identification of animals.

The official numbering systems recognized under the regulations prior to this interim rule, such as the National Uniform Eartagging System, have been vital to disease control and eradication programs, but may not be well suited for uses outside of those programs. For example, many producers use separate identification numbers or methods for on-farm production purposes, animal data recording, genetic evaluation, and breed registration. Assigning multiple identification numbers to an animal may necessitate attaching multiple identification tags or devices to the animal, and some identification devices are inevitably lost over time. The ability to access information about a particular animal may also be impaired when data about that animal are stored in various databases under various numbering systems. Furthermore, as diseases such as tuberculosis, brucellosis, and pseudorabies are eradicated from the United States, fewer animals are required to be officially identified under the regulations. As a result, our ability to trace diseased animals back to their herds of origin and to trace other potentially exposed animals forward is being compromised.

To address these considerations, USDA has identified the need for a national animal identification system (NAIS) and defined several key objectives for such a system. These include: (1) Allowing producers, to the extent possible, the flexibility to use current systems or adopt new ones; (2) having a system that is technology neutral, so that all existing effective technologies and new technologies that may be developed in the future may be utilized; (3) having a system that builds upon national data standards to ensure that a uniform and compatible system evolves; (4) having a system that does not preclude producers from being able to use it with production management systems that respond to market incentives; and (5) designing the architecture so that the system does not unduly increase the role and size of the Government.

Design and implementation of such a system are well under way (see http://www.aphis.usda.gov/lpa/issues/nais/nais.html). USDA is moving forward, first on a voluntary basis, to integrate the various types of animal identification programs that currently exist in the United States, and then will scale up to the national level, to include those producers and animals that are not currently in an animal identification program. The goal is to create an effective, uniform, consistent, and efficient national system.

Key to the NAIS is the use of standardized data elements to identify animals and to record their movements. These data elements include numbering systems for individual animals, groups or lots of animals, and premises (locations where animals are managed or held), as well as for individuals or entities, such as State animal health officials, producer organizations, breed associations, identification companies, service providers, etc., that do not own or manage livestock but participate in the system in a variety of ways, such as allocating animal identification numbers to producers, tracking animal movement, and recording animal health data. These participants are referred to as non-producer participants.

The NAIS will allow us to trace back and trace forward animals potentially infected with or exposed to a disease of concern. Traceback refers to the ability to track an animal's location over its lifespan and the ability to determine which animals may have been in contact with a diseased animal or shared a contaminated feed supply. Trace forward data provide locations of animals moved from a premises of concern that may have been exposed to a disease. When fully implemented, the NAIS calls for a trace to be completed within 48 hours of detecting a disease, enhancing our ability to contain an outbreak.

APHIS will initially fund cooperative agreements to help State and Tribal governments establish premises identification systems and to evaluate additional identification pilot projects that could also become a part of the overall national animal identification system. Associations and other segments of the livestock industry may participate in State and Tribal projects. APHIS posted a request for proposals for these cooperative agreements in June 2004. Applications were reviewed and selections made in early August, and cooperative agreements were initiated in September 2004.

This interim rule amends the regulations in order to provide the flexibility needed to facilitate the development and implementation of the NAIS. By adding or amending certain definitions and adding, removing, or amending certain regulatory provisions, this interim rule allows the use of additional numbering systems and devices for official purposes under the regulations. We are also adding provisions prohibiting the removal of official identification devices except at the time of slaughter. These actions are necessary to meet the livestock industry's various identification needs and to ensure our future ability to trace animals to and from their herds of origin. In keeping with the objectives of the NAIS, the use of the new numbering systems will be voluntary. This interim rule merely provides for the use of these numbering systems in instances when official identification is required. Other animal and premises numbering systems that are already recognized by the regulations, such as the National Uniform Eartagging System, will still be recognized by APHIS for purposes of official identification.

Individual animal identification is needed for tracking animals that, while moving through the production chain, are destined to be commingled with animals outside the production system in which they were born. The animal identification number (AIN) is a number that may be used for the official identification of individual animals in State/Federal/industry cooperative disease control and eradication programs. In order to provide for the use of the AIN for official purposes, we are adding the following definition of animal identification number (AIN) to §§ 71.1, 77.2, 78.1, and 80.1: “A numbering system for the official identification of individual animals in the United States. The AIN consists of 15 digits, with the first 3 being the country code (840 for the United States), the alpha characters USA, or the numeric code assigned to the manufacturer of the identification device by the International Committee on Animal Recording.”

As we have already noted, the AIN is not a mandatory system of livestock identification but an approved alternative to other officially recognized numbering systems in use today.

Since eartags and backtags are two of the most commonly used methods of animal identification, we determined that, in order to provide for the use of AINs on such tags, we needed to amend the definition of official eartag in §§ 71.1, 77.2, 78.1, and 80.1 and the definition of United States Department of Agriculture backtag in §§ 71.1 and 78.1. The previous definition of official eartag only allowed for the use of the National Uniform Eartagging System or a premises identification number used in conjunction with the producer's livestock production numbering system. Similarly, the previous definition of United States Department of Agriculture backtag only allowed for the use of the eight-character alpha-numeric National Backtagging System.

The new definition of official eartag is as follows: “An identification tag providing unique identification for individual animals. An official eartag must bear the U.S. shield. The design, size, shape, color, and other characteristics of the official eartag will depend on the needs of the users. The official eartag must be tamper-resistant and have a high retention rate in the animal. Official eartags must adhere to one of the following numbering systems:

• National Uniform Eartagging System.

• Animal identification number (AIN).

• Premises-based number system. The premises-based number system combines an official premises identification number (PIN), as defined in this section, with a producer's livestock production numbering system to provide a unique identification number. The PIN and the production number must both appear on the official tag.

• Any other numbering system approved by the Administrator for the identification of animals in commerce.”

The new definition of United States Department of Agriculture backtag is “a backtag issued by APHIS that provides unique identification for each animal.” This definition is sufficiently flexible to allow for the use of the AIN or other numbering systems in addition to the National Backtagging System.

We are also adding a new definition of official identification device or method to the domestic animal movement regulations in § 71.1, the brucellosis regulations in § 78.1, the scrapie regulations in § 79.1, and the animal import regulations in §§ 93.400 and 93.500. We define official identification device or method as “a means of officially identifying an animal or group of animals using devices or methods approved by the Administrator, including, but not limited to, official tags, tattoos, and registered brands when accompanied by a certificate of inspection from a recognized brand inspection authority.” The addition of this new definition to the animal import regulations is necessary because we are adding certain provisions, which are discussed in greater detail below, concerning the removal of official identification devices to the regulations in 9 CFR part 93, as well as to part 71. In parts 71, 78, and 79, the new definition complements other new provisions, discussed in more detail below, that we are adding to the regulations.

These new provisions are contained in a new paragraph (b) in § 71.18, a new paragraph (b)(8) in § 79.19, and a new paragraph (a)(2)(iii) in § 79.2, as well as in an amendment to paragraph (a)(2) in § 78.14. These new provisions indicate that, in addition to the identification devices and methods specifically referred to in those sections, other animal identification devices or methods may also be employed for official purposes if approved by the Administrator. Combined with the new definition of official identification device or method, these changes to the regulations are intended to allow for the use of both currently available and emerging animal identification technologies.

We are also removing § 71.19(g), which contains procedures for requesting approval by the Administrator of swine identification devices and markings other than those already listed in § 71.19(b) and states that if the Administrator determines that the devices and markings will provide a means of tracing swine in interstate commerce, a proposal will be published in the Federal Register to add the devices and markings to the list of approved means of swine identification. With new animal identification technologies currently being pilot tested, we determined that the procedures in paragraph (g), particularly the requirement for a proposal to be published in the Federal Register for each new device, were unnecessarily slow and cumbersome. In removing this paragraph, we are removing a potential regulatory obstacle to the approval and use of new technologies. Newly approved devices or markings will still be added to the list in § 71.19(b), however. Because we are removing paragraph (g), we are redesignating paragraphs (h) and (i) as paragraphs (g) and (h), respectively. Because of this redesignation, references to “§ 71.19(h)” in § 85.7(b)(3)(i), (b)(3)(ii), and (c)(1) and in § 85.8(a)(4) have been amended to refer to “§ 71.19(g).”

Group/lot identification can be used in species where groups of animals are assembled from within the same production system and tracked through records of group movements maintained at the local level by the producer. In order to provide for use of the group/lot identification number for official identification purposes, we are adding a definition of group/lot identification number (GIN) to § 71.1. We define the GIN as “the identification number used to uniquely identify a unit of animals of the same species that is managed together as one group throughout the preharvest production chain. The GIN consists of a seven-character PIN, as defined in § 71.1, and a six-digit representation of the date on which the group or lot of animals was assembled (MM/DD/YY).” If more than one group of animals is assembled on a particular day at a given premises, the animals will still be considered a single group for the purpose of assigning a GIN. Multiple animal groups assembled on the same premises on the same day are not considered to be epidemiologically distinct and should be treated as a single entity for purposes of health management. As is the case with the AIN, use of the GIN is not mandatory.

Another key element of the NAIS is premises identification. If the goal of a 48-hour traceback capability is to become a reality, it must be possible to record an animal's movements from its farm of origin to other locations throughout its entire life. Identifying premises that manage or hold livestock with a single and unique number is, therefore, essential. In order to provide in the regulations for premises identification under the NAIS, we are replacing the definition of premises identification number in §§ 71.1 and 80.1 with a new definition of premises identification number (PIN). Because existing definitions of premises of origin identification and premises identification in §§ 77.2 and 79.1, respectively, both contain references to PINs, we are also adding a new definition of premises identification number (PIN) to those sections. Prior to this interim rule, premises identification number was defined in §§ 71.1 and 80.1 as a State's two-letter postal abbreviation followed by a number assigned by the State animal health official to a livestock production unit that is, in the judgment of the State animal health official or area veterinarian in charge, epidemiologically distinct from other livestock production units.

In § 71.1, the new definition, which allows for the continued use of this type of PIN but also recognizes the new premises numbering system developed for the NAIS, reads as follows: “A unique number assigned by a State or Federal animal health authority to a premises that is, in the judgment of the State or Federal animal health authority, a geographically distinct location from other livestock production units. The premises identification number is associated with an address or legal land description and may be used in conjunction with a producer's own livestock production numbering system to provide a unique identification number for an animal. It may also be used as a component of a group/lot identification number (GIN). The premises identification number may consist of:

• The State's two-letter postal abbreviation followed by the premises' assigned number; or

• A seven-character alphanumeric code, with the right-most character being a check digit. The check digit number is based upon the ISO 7064 Mod 36/37 check digit algorithm.”

The new definition of premises identification number (PIN) used in §§ 77.2, 79.1, and 80.1 is almost identical to that of § 71.1, omitting only the reference to the GIN. Group/lot identification is mainly used for interstate movement of swine, which is regulated under part 71. Specifically, § 71.19 contains regulations for the identification of swine in interstate commerce. Thus, the reference to the GIN in the definition of PIN is much more applicable to part 71 than to parts 77, 79, and 80, which contain, respectively, regulations pertaining to tuberculosis in cattle, bison, and captive cervids; to scrapie in sheep and goats; and to Johne's disease, which primarily affects cattle, sheep, goats, and other ruminants.

The new definition of premises identification number (PIN) differs from the definition it is replacing not only in recognizing the new numbering system but also in recognizing a premises based on a State or Federal animal health authority's determination that it is a geographically, rather than epidemiologically, distinct animal production unit. Identifying a premises as an epidemiologically distinct animal production unit can be problematic because a unit that may be considered epidemiologically distinct for one animal disease may not be for another. We view geographical distinctness as a more reliable measure by which to determine what constitutes a premises.

In addition to the new definition of premises identification number (PIN), we are also amending the definitions referred to earlier of premises of origin identification in § 77.2 and premises identification in § 79.1. Prior to this interim rule, both of these definitions recognized only the type of PIN beginning with the State's two-letter postal code. The amended definitions refer to the new definition of premises identification number (PIN) and thus recognize the new PIN format as well as the old.

The AIN or any other animal numbering system can only be effective if the official eartag or backtag or other approved device bearing the animal's identification number remains affixed to the animal throughout its lifetime, from birth to slaughter. Therefore, we are adding a new § 71.22 that prohibits the removal of official identification devices except at the time of slaughter and further states that if an official identification device is lost and it is necessary to retag an animal with a new official number, every effort should be made to correlate the new official number with the previous official number of the animal. To ensure that there will be the same traceback capability for imported animals as for animals moving interstate, we are adding identical requirements regarding removal and replacement of official devices to §§ 93.401 and 93.501, which contain conditions for imported ruminants and swine, respectively. In each of those sections, the new provisions are contained in a new paragraph (c). As we have already noted, adding these requirements to the animal import regulations also necessitates adding a definition of official identification device or method to §§ 93.400 and 93.500.

Immediate action is necessary to allow the use, on a voluntary basis, of newly developed numbering systems for the identification of animals in interstate commerce and State/Federal/industry cooperative disease control and eradication programs and for the identification of premises where animals are managed or held. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this action effective less than 30 days after publication in the Federal Register .

We will consider comments we receive during the comment period for this interim rule (see DATES above). After the comment period closes, we will publish another document in the Federal Register . The document will include a discussion of any comments we receive and any amendments we are making to the rule.

This rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

This interim rule amends the regulations to recognize additional numbering systems for the identification of individual animals, groups of animals, and premises where animals are managed or held. These new numbering systems are intended for use in the NAIS that is being implemented by the USDA, at present on a voluntary basis.

Entities that may be affected by this interim rule include U.S. animal producers, importers, and other individuals and organizations involved in the buying and selling of livestock.

There were 1.03 million cattle and calf producers in the United States in 2003. There were also 95,189 cattle feeding operations in the United States in 2002. On January 1, 2004, there were 95 million beef and dairy cattle and calves in the United States. Nearly 38 million calves were born in the United States in 2003. Each of these 38 million head would presumably be tested, vaccinated, monitored under official disease control programs, or moved in interstate or international commerce and would therefore need to be identified if the NAIS were to be fully implemented. In addition, in 2002, 2.5 million cattle and calves were imported into the United States. Under § 93.404, ruminants imported into the United States require individual identification.

The U.S. hog industry had 60 million hogs as of December 1, 2003. In 2003, 100.4 million head were born. About 7 million head were estimated to die due to disease, predators, and other causes, and 100 million head were slaughtered. There were 75,350 hog producers in the United States in 2002.

The U.S. sheep industry had 7.6 million sheep and lambs on farms as of July 2004. There were 64,170 sheep and lambs produced in 2002.

In addition to animal producers, many non-producers, such as slaughter plants, stockyards, bonded dealers, and marketing agencies involved in buying or selling livestock in the United States may potentially be involved in the NAIS. There were 3,222 U.S. livestock slaughter plants in 2003, of which 879 were under Federal inspection. There are an estimated 7,775 stockyards, bonded dealers, and marketing agencies in the United States.

The primary beneficiaries of the NAIS are expected to be producers, who, because disease outbreaks are likely to be controlled more quickly than in the past, are likely to experience a reduction in costs associated with such outbreaks ( e.g. , export markets may not be lost or may be restricted for shorter durations); taxpayers, who will need to fund smaller mitigation, eradication, and compensation programs than they have in the past; and consumers, who will experience less disruption in the supply of meat if a major disease event happens and improved confidence in the meat supply system because of the speed with which we will be able to respond to such events.

It is important to note that participation in the NAIS is voluntary. Producers can opt not to participate in the NAIS if they anticipate that the costs they will incur will exceed the benefits they receive from participation. Little information is available at this time about costs that may be incurred by producers. APHIS welcomes comments about the costs of an animal identification system.

The Regulatory Flexibility Act requires that agencies consider the economic impact of their rules on small entities. This interim rule has potential implications for small entities in the United States, both in terms of any costs they might incur to satisfy NAIS program requirements and in terms of the benefits associated with the program's establishment. Beef and hog producers are among the small entities potentially affected by this interim rule.

According to Small Business Administration (SBA) guidelines, beef producers with $750,000 or less in annual receipts are considered small businesses. Based on the guidelines, producers with fewer than 1,200 head of cattle would likely be considered small producers. For the period of January to April 2004, the average head of cattle weighed approximately 700 pounds. The 2003 annual market price for live choice steers was $84.69 per hundredweight (cwt). The average price per cwt, $84.69, times the average weight, 7 cwt, gives an average price per head of $592.83. At that price, 1,265 head of cattle would be needed to reach the $750,000 threshold. 1 In 2003, 60 percent of U.S. cattle producers had fewer than 50 head, and 99 percent had fewer than 1,000 head.

According to SBA guidelines, hog producers with $750,000 or less in annual receipts are considered small businesses. In the first quarter of 2004, hogs were priced at $44.18 per hundredweight (cwt). There is a 6-month production cycle for hogs. Assuming an average hog weight of 200 pounds, the average price per head is $88.36; therefore, each production unit could generate $176.72 times the current inventory per year. Producers with fewer than 4,000 head of hogs ($750,000 divided by $176.72 equals 4,244 hogs) would likely be considered small according to the SBA guidelines. 2 In 2003, 40 percent of hog producers had fewer than 99 head, and 57 percent had fewer than 500 head.

We expect that the benefits of more effective disease control will outweigh any costs to producers that may result from their participation in the NAIS. Because participation is voluntary, small entities could opt out of the program if they found that the costs outweighed the benefits. The benefit of this rule is the provision of greater flexibility in official animal and premises identification. As use of this numbering system is voluntary, no costs are imposed on participants and it is unlikely for this interim rule to have any adverse impact on small businesses.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.

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

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are in conflict with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

This rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

On April 20, 2001, Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124, applied for a type certificate design change to install inflatable lapbelts for head injury protection on certain seats in Boeing Model 777 series airplanes. The Model 777 series airplane is a swept-wing, conventional-tail, twin-engine, turbofan-powered transport. The inflatable lapbelt is designed to limit occupant forward excursion in the event of an accident. This will reduce the potential for head injury, as determined by the Head Injury Criteria (HIC) measurement. The inflatable lapbelt behaves similarly to an automotive airbag, but in this case the airbag is integrated into the lapbelt, and inflates away from the seated occupant. While airbags are now standard in the automotive industry, the use of an inflatable lapbelt is novel for commercial aviation.

Because the existing airworthiness standards of 14 CFR part 25 do not address inflatable lapbelts, the FAA developed special conditions to address this design feature. Special Conditions No. 25-187-SC were issued to Boeing Commercial Airplanes on October 3, 2001, and published in the Federal Register on October 12, 2001 (66 FR 52017).

On February 26, 2004, The Boeing Company requested that the FAA amend SC No. 25-187-SC to address flammability of the airbag material. During the development of the inflatable lapbelt the manufacturer was unable to develop a fabric that would meet the inflation requirements for the bag and the flammability requirements of Part I(a)(1)(i) of appendix F to part 25. The fabrics that were developed that meet the flammability requirement did not produce acceptable deployment characteristics. However, the manufacturer was able to develop a fabric the meets the less stringent flammability requirements of Part I(a)(1)(iv) of appendix F to part 25 and has acceptable deployment characteristics.

Part I of appendix F to part 25 specifies the flammability requirements for interior materials and components. There is no reference to inflatable restraint systems in appendix F because such devices did not exist at the time the flammability requirements were written. The existing requirements are based on both material types, as well as use, and have been specified in light of the state-of-the-art of materials available to perform a given function. In the absence of a specific reference, the default requirement would be for the type of material used to construct the inflatable restraint, which is a fabric in this case. However, in writing a special condition, the FAA must also consider the use of the material, and whether the default requirement is appropriate. In this case, the specialized function of the inflatable restraint means that highly specialized materials are needed. The standard normally applied to fabrics is a 12-second vertical ignition test. However, materials that meet this standard do not perform adequately as inflatable restraints. Since the safety benefit of the inflatable restraint is very significant, the flammability standard appropriate for these devices should not screen out suitable materials, thereby effectively eliminating use of inflatable restraints. The FAA will need to establish a balance between the safety benefit of the inflatable restraint and its flammability performance. At this time, the 2.5-inch per minute horizontal test is considered to provide that balance. As the state-of-the-art in materials progresses (which is expected), the FAA may change this standard in subsequent special conditions to account for improved materials.

The additional safety standard is added as Item 14 to existing SC 25-187-SC. Items 1 through 13 are standards already adopted in Special Conditions No. 25-187-SC.

Under the provisions of § 21.101, Boeing Commercial Airplanes must show that the Model 777 series airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. T00001SE, or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in Type Certificate No. T00001SE are as follows: Amendments 25-1 through 25-82 for the Model 777-200, and amendments 25-1 through 25-86 with exceptions for the Model 777-300. The U.S. type certification basis for the Model 777 is established in accordance with §§ 21.29 and 21.17 and the type certification application date. The U.S. type certification basis is listed in Type Certificate Data Sheet No. T00001SE.

If the Administrator finds that the applicable airworthiness regulations ( i.e. , part 25 as amended) do not contain adequate or appropriate safety standards for Boeing Model 777 series airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the Boeing Model 777 must comply with the fuel vent and exhaust emission requirements of part 34 and the noise certification requirements of part 36.

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

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

Notice of proposed amendment of Special Conditions No. 25-187-SC was published in the Federal Register on September 23, 2004 as Notice 25-04-03-SC (69 FR 56961). We received one comment.

Comment: The commenter states that the special conditions should address the Model 747, A340, and A380 airplanes as well. As written the special conditions give the Model 777 a marketing advantage over these other airplanes that are used in similar markets. The Model 747, A340, and A380 should have the ability to take advantage of this functionality until a suitable material is found that addresses the functionality of the system as well as the 12-second vertical burn requirements.

FAA Reply: The special conditions are not a rule of general applicability and therefore cannot be applied to other airplanes such as the Model 747, A340, and A380. However, should an applicant apply for certification of an airplane with the same or similar design of inflatable lapbelts, we would consider that request for a less stringent flammability requirement for the inflatable bag fabric as well. We would consider the state-of-the-art inflatable bag fabric at that time.

Under standard practice, the effective date of final or amended special conditions would be 30 days after the date of publication in the Federal Register . However, because delivery of the affected airplanes with this additional novel or unusual design feature is imminent, and because a delay would significantly affect the applicant's installation and type certification of the lapbelt, the FAA finds that good cause exists for making these amended special conditions effective upon issuance.

This action affects only certain novel or unusual design features on the Boeing Model 777 series airplanes. It is not a rule of general applicability, and it affects only Model 777 series airplanes listed on Type Certificate Data Sheet T00001SE.

As a member of the National Transportation Safety Board (NTSB) investigation team, we are investigating an incident event and possible unsafe condition on RR RB211 Trent 700 series engines. The Civil Aviation Authority (CAA), which is the airworthiness authority for the United Kingdom (UK) is helping us investigate. A report was received of a RB211 Trent 700 series engine experiencing a disk shaft separation, overspeed of the IP turbine rotor, and multiple blade release of IP turbine blades. Preliminary findings suggest these events resulted from an internal oil fire in the HP-IP turbine oil vent tubes due to coking and carbon buildup. This fire led to a second fire in the internal air cavity below the IP turbine disk drive shaft. Because the oil vent tubes on the event engine were destroyed, the partner engine on the same airplane was inspected. That inspection revealed heavy coking and carbon buildup, with partial blockage of the HP-IP turbine oil vent tubes. Both engines had the same on-wing life of 15,169 hours with 2,344 cycles-since-new. Both engines contained Mobil Jet Oil 291, which also is suspect and will be removed from the list of approved oils for these engines. The NTSB investigation is ongoing and a finding of probable cause has not yet been made. The fire, disk overspeed, and blade release appear to be the result of the coking and carbon buildup, evident in the sister engine and linked by cycles and oil use to the event engine.

We have reviewed and approved the technical contents of RR Alert Service Bulletin (ASB) No. RB.211-72-AE302, Revision 1, dated May 25, 2004, that describes procedures for:

• Initial and repetitive borescope inspections for coking and carbon buildup in the HP-IP turbine oil vent tubes; and

• Cleaning the tubes if necessary, and removing the engine from service to clean or replace the tubes.

These engine models are manufactured in the UK and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Under this bilateral airworthiness agreement, the CAA kept the FAA informed of the situation described above. As a member of the NTSB investigation team, we have examined the findings with the CAA, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.

Although no airplanes that are registered in the United States use these engines, the possibility exists that the engines could be used on airplanes that are registered in the United States in the future. The unsafe condition described previously is likely to exist or develop on other RB211 Trent 700 series turbofan engines of the same type design. We are issuing this AD to prevent internal oil fires due to coking and carbon buildup, that could cause uncontained engine failure and damage to the airplane. This AD requires:

• Initial and repetitive borescope inspections of the HP-IP turbine oil vent tubes for coking and carbon buildup; and

• Cleaning or replacing the oil vent tubes if they fail the inspection.

Since there are currently no domestic operators of this engine model, notice and opportunity for public comment before issuing this AD are unnecessary. A situation exists that allows the immediate adoption of this regulation.

These actions are interim actions and we may take further rulemaking actions in the future.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to submit any written relevant data, views, or arguments regarding this AD. Send your comments to an address listed under ADDRESSES. Include “AD Docket No. FAA-2004-19559; Directorate Identifier 2004-NE-03-AD” in the subject line of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify it.

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

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

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

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

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

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

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

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

This amendment to 14 CFR Part 71 modifies the Class D airspace designation for an airspace area from the surface up to but not including 6,600 feet MSL at Holloman Air Force Base, Alamogordo, NM and will be published in paragraph 5000 of FAA Order 7400.9M, dated August 30, 2004, and effective September 16, 2004, which is incorporated by reference in 14 CFR 71.1.

The FAA anticipates that this regulation will not result in an adverse or negative comment, and, therefore, issues it as a direct final rule. The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Unless a written adverse or negative comment, or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified. After the close of the comment period, the FAA will publish a document in the Federal Register indicating that no adverse or negative comments were received and confirming the date on which the final rule will become effective. If the FAA does receive, within the comment period, an adverse or negative comment, or written notice of intent to submit such a comment, a document withdrawing the direct final rule will be published in the Federal Register , and a notice of proposed rulemaking may be published with a new comment period.

Although this action is in the form of a direct final rule, and was not preceded by a notice of proposed rulemaking, interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications must identify both docket numbers. All communications received on or before the closing date for comments will be considered, and this rule may be amended or withdrawn in light of the comments received. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of this action and determining whether additional rulemaking action would be needed.

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

This rule does not have federalism implications, as defined in Executive Order No. 13132, because it does 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. Accordingly, the FAA has not consulted with State authorities prior to publication of this rule.

The FAA has determined that this regulation is noncontroversial and unlikely to result in adverse or negative comments. For the reasons discussed, I certify that this regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as these routine matters will only affect air traffic procedures and air navigation. I certify that this rule will not have significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Current License Requirements for Missile-Related End-Uses/End-Users. Section 742.5 of the Export Administration Regulations (EAR) requires a license for the export or reexport to all destinations (except Canada) of those dual-use items specifically identified on the Commerce Control List (CCL) as controlled for missile technology (MT) reasons. Section 744.3 of the EAR also requires a license for the export or reexport of any item subject to the EAR, when the exporter knows or has reason to know that the item (1) is destined for a missile project listed in the footnote to Country Group D:4 in Supplement 1 to part 740 of the EAR, or (2) will be used in the design, development, production, or use of missiles in or by a country listed in Country Group D:4, whether or not the use involves a project listed in the footnote. “Missile” is defined in the EAR as a rocket system or unmanned air vehicle system capable of delivering at least 500 kilograms payload to a range of at least 300 kilometers. The list of missile projects set forth in the footnote to Supplement No. 1 to part 740 includes only those projects meeting the “missile” payload and range criteria.

Removal of List of Missile Projects in D:4 Countries. This rule removes the list of missile projects in D:4 countries set forth in the footnote in Supplement No. 1 to Part 740 of the EAR because the activities subject to the license requirement set forth in 744.3 are no longer limited to “missile” projects with a certain payload and range capability. The referenced activities are expanded, by this rule, to include any rocket system or unmanned air vehicle with a range of 300 kilometers to be used in D:4 countries.

Worldwide License Requirement for Delivery Systems for Chemical, Biological or Nuclear Weapons. This rule implements a new license requirement in section 744.3 for exports, reexports and transfers to anywhere in the world that applies when you know, or are informed, that an item subject to the EAR will be used in rocket systems or unmanned air vehicles of any range for the delivery of chemical, biological or nuclear weapons.

Expansion of End-Use License Requirement for Country Group D:4 Countries. This rule revises the license requirements under section 744.3 of the EAR to provide that a license is required for the export, reexport or transfer of any item subject to the EAR if you know, or are informed, that the item will be used in the design, development, production or use of rocket systems or unmanned air vehicles capable of a range of at least 300 kilometers in or by a country listed in Country Group D:4. This rule also provides that a license is required if you know that the item will be used in the design, development, production or use of rocket systems or unmanned air vehicles in or by a country listed in Country Group D:4, but are unable to determine the characteristics ( i.e. , range capabilities) of the rocket systems or unmanned air vehicles, or whether the rocket systems or unmanned air vehicles, regardless of range capabilities, are used for the delivery of chemical, biological, or nuclear weapons.

For purposes of this rule, “rocket systems” include, but are not limited to, ballistic missile systems, space launch vehicles, and sounding rockets. “Unmanned air vehicles” include, but are not limited to, cruise missile systems, target drones and reconnaissance drones. This rule adds these definitions in a note to section 744.3 of the EAR.

This rule imposes new export controls for foreign policy reasons. As required by section 6 of the Export Administration Act of 1979, as amended (the Act), a report on the imposition of these controls was delivered to Congress on September 20, 2004.

Although the Act expired on August 20, 2001, Executive Order 13222 of August 17, 2001 (3 CFR, 2001 Comp., p. 783 (2002)), as extended by the Notice of August 6, 2004, 69 FR 48763 (August 10, 2004), continues the EAR in effect under the International Emergency Economic Powers Act.

Shipments of items that are subject to a license requirement as a result of this regulatory action that were on dock for loading, on lighter, laden aboard an exporting carrier, or en route aboard a carrier to a port of export, on November 8, 2004, pursuant to actual orders for export to a foreign destination, may proceed to that destination without a license so long as they have been exported from the United States before December 8, 2004. Any such items not actually exported before midnight, on December 8, 2004, require a license in accordance with this regulation.

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

2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act, unless that collection of information displays a currently valid Office of Management and Budget Control Number. This rule involves a collection of information subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq. ). This collection has been approved by the Office of Management and Budget under control number 0694-0088, “Multi-Purpose Application,” which carries a burden hour estimate of 58 minutes for a manual or electronic submission. Send comments regarding these burden estimates or any other aspect of these collections of information, including suggestions for reducing the burden, to David Rostker, Office of Management and Budget (OMB), by e-mail to David_Rostker@omb.eop.gov , or by fax to (202) 395-7285; and to the Office of Administration, Bureau of Industry and Security, Department of Commerce, 14th and Pennsylvania Avenue, NW., Room 6883, Washington, DC 20230.

3. This rule does not contain policies with federalism implications as that term is defined in Executive Order 13132.

4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public participation, and a delay in effective date, are inapplicable because this regulation involves a military and foreign affairs function of the United States (Sec. 5 U.S.C. 553(a)(1)). Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this interim rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under 5 U.S.C. 553 or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) are not applicable.

However, because of the importance of the issues raised by these regulations, this rule is being issued in interim form and BIS will consider comments in the development of the final regulations. Accordingly, BIS encourages interested persons who wish to comment to do so at the earliest possible time to permit the fullest consideration of their views.

The period for submission of comments will close December 23, 2004. BIS will consider all comments received before the close of the comment period in developing final regulations. Comments received after the end of the comment period will be considered if possible, but their consideration cannot be assured. BIS will not accept public comments accompanied by a request that a part or all of the material be treated confidentially because of its business proprietary nature or for any other reason. BIS will return such comments and materials to the persons submitting the comments and will not consider them in the development of final regulations. All public comments on these regulations will be a matter of public record and will be available for public inspection and copying. In the interest of accuracy and completeness, BIS requires comments in written form.

Oral comments must be followed by written memoranda, which will also be a matter of public record and will be available for public review and copying. Communications from agencies of the United States Government or foreign governments will not be available for public inspection.

The public record concerning these comments will be maintained in the Bureau of Industry and Security, Office of Administration, U.S. Department of Commerce, Room 6883, 14th Street and Constitution Avenue, NW., Washington, DC 20230; (202) 482-2165. This component does not maintain a separate public inspection facility. Requesters should first view BIS's FOIA Web site (which can be reached through http://www.bis.doc.gov/foia ). If the records sought cannot be located at this site, or if the requester does not have access to a computer, please call the phone number above for assistance.

Please refer to the ADDRESSES section cited above for comment submission.

1. This final rule revises the Federal Energy Regulatory Commission's (Commission) regulations governing delegations of authority to reflect a recent internal reorganization. The changes will become effective immediately.

2. The Commission's Division of Regulatory Audits has been moved from the Office of the Executive Director (OED) to the Office of Market Oversight and Investigations (OMOI). It has been renamed the Division of Financial Audits (DFA). Among DFA's duties are financial audits, in which it reviews the accounting records and financial statements of jurisdictional companies to determine if they are complying with requirements of the Uniform Systems of Accounts and related Regulations of the Commission. DFA also performs other types of audits, in which it reviews the performance of a program, activity, or function in order to provide information to improve public accountability and facilitate decision-making by parties with responsibility to oversee or initiate corrective action.

3. The transfer of DFA to OMOI requires several revisions to the delegations made by the Commission to the Director of OMOI, which are found at 18 CFR 375.314. The changes are as follows:

• The phrase “non-financial” has been deleted from references to “non-financial audits” or “non-financial auditing” in subsections (i) and (k).

• Subsection (j) is being revised to include the authority to pass upon actual legitimate original cost and depreciation thereon, and net investment in jurisdictional companies under the conditions contained in that provision.

• New subsection (1) is being added to allow the Director of OMOI to approve corrective measures with regard to billing errors, where the company agrees.

4. In addition, the Commission's Division of Regulatory Accounting Policy has been moved from OED to the Office of Markets, Tariffs and Rates. Accounting Policy currently is headed by the Commission's Chief Accountant. The Commission's regulations, at 18 CFR 375.303, already contain several delegations made directly to the Chief Accountant; these delegations remain unchanged, although they are being renumbered in this rule. The following delegations are being added to § 375.303 to reflect the move from OED:

• The ability to sign correspondence relating to financial matters is added in new subsection (a).

• New subsection (b) is being added to include the authority to pass upon actual legitimate original cost and depreciation thereon, and net investment in jurisdictional companies under the conditions contained in that provision.

• New subsection (h) is being added to include the authority to pass upon requests for waiver under parts 352 and 356, except in matters that are controversial or involve unusually large transactions.

As with the changes related to OMOI, parallel changes are being made to delete these authorities from the Executive Director's delegations.

5. The Office of Management and Budget's (OMB) regulations require that OMB approve certain information collection requirements imposed by agency rule. 5 CFR part 1320. This final rule contains no information reporting requirements and thus is not subject to OMB approval.

6. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment. 1 The Commission has categorically excluded certain actions from this requirement as not having a significant effect on the human environment. Included is an exemption for procedural, ministerial or internal administrative actions. 2 This rulemaking is exempt under that provision.

7. The Regulatory Flexibility Act of 1980 (RFA)  3 generally requires a description and analysis of final rules that will have significant economic impact on a substantial number of small entities. This final rule concerns a matter of internal agency procedure and the Commission therefore certifies that it will not have such an impact. An analysis under the RFA is not required.

8. In addition to publishing the full text of this document in the Federal Register , the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through FERC's home page ( http://www.ferc.gov ) and in FERC's Public Reference Room during normal business hours (8:30 a.m. to 5 p.m. eastern time) at 888 First Street, NE., Room 2A, Washington, DC 20426.

9. From FERC's home page on the Internet, this information is available in the Commission's document management system, eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field.

10. User assistance is available for eLibrary and the FERC's Web site during normal business hours. For assistance, please contact FERC Online Support at 1-866-208-3676 (toll free) or 202-502-6652 (e-mail at FERCOnlineSupport@FERC.gov ), or the Public Reference Room at 202-502-8371, TTY 202-502-8659 (e-mail at public.referenceroom@ferc.gov ).

11. In accordance with 5 U.S.C. 553(d)(3), the Commission finds that good cause exists to make this final rule effective immediately upon issuance. This rule affects only matters of internal organization. It will have no impact upon the rights of outside parties. The Commission further finds that a period for public comment on this rule is unnecessary. Under 5 U.S.C. 553(b), notice and comment procedures are unnecessary where a rulemaking concerns only agency procedure and practice, or where the agency finds that notice and comment is unnecessary. This rule concerns only matters of internal agency procedure and will not significantly affect regulated entities or the general public.

12. The provisions of 5 U.S.C. 801 regarding Congressional review of final rules do not apply to this final rule, because the rule concerns agency procedure and practice and will not substantially affect the rights of non-agency parties.

Throughout this document wherever “we,” “us,” or “our” are used we mean the EPA.

1. The Regional Office has established an electronic public rulemaking file available for inspection on EDOCKET and a hard copy file which is available for inspection at the Regional Office. EPA has established an official public rulemaking file for this action under Docket ID No. R05-AR-2004-IN-0004. The official public file consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public rulemaking file does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public rulemaking file is the collection of materials that is available for public viewing at the Air Programs Branch, Air and Radiation Division, EPA Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m. excluding Federal holidays.

2. Electronic Access. You may access this Federal Register document electronically through the regulations.gov Web site located at http://www.regulations.gov where you can find, review, and submit comments on Federal rules that have been published in the Federal Register, the Government's legal newspaper, and are open for comment.

For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing at the EPA Regional Office, as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in the official public rulemaking file. The entire printed comment, including the copyrighted material, will be available at the Regional Office for public inspection.

You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate rulemaking identification number by including the text “Public comment on proposed rulemaking Region 5 Air Docket “R05-OAR-2004-IN-0004” in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.

For detailed instructions on submitting public comments and on what to consider as you prepare your comments see the ADDRESSES section and the section I General Information of the SUPPLEMENTARY INFORMATION section of the related proposed rule which is published in the Proposed Rules section of this Federal Register.

EPA is approving revisions to VOC control requirements for the Eli Lilly pharmaceutical manufacturing facility in Marion County, Indiana. Indiana submitted Commissioner's Order #2003-02 on February 11, 2004, requesting revisions as an amendment to its SIP. The February 11, 2004 submission supplements a December 19, 2001 submission.

Indiana is seeking an exemption from 326 IAC 8-5-3 for reactors, centrifuges, filters, and vacuum dryers in Building 110, the pilot plant for Eli Lilly. This exemption can be granted under 326 IAC 8-1-5, which allows site-specific RACT plans as an alternative to 326 IAC Article 8 requirements. Other Building 110 sources such as the air dryers and the storage tanks comply with 326 IAC 8-5-3.

Indiana has determined that using primary reactor condensers operating at −10° Celsius on the reactors is RACT. Indiana has also determined that no emissions controls are feasible for the vacuum dryers. Eli Lilly must enclose all Building 110 centrifuges and filters having an exposed solvent surface. The RACT control level is the condensers set at −10°C, which meets the required control level for most VOCs that Eli Lilly will be using. However, some VOCs may be used for which 326 IAC 8-5-3 requires a lower temperature on the condensers. The temperature requirement is based on the vapor pressure of the solvent. Eli Lilly will operate its primary reactor condensers at a steady temperature, −10°C, instead of adjusting for the vapor pressure of the VOC being used because of the frequent solvent changes. Eli Lilly is required to certify that the condensers were operating at all required times.

Even with these relaxations from 326 IAC 8-5-3, the total VOC emissions from this facility will remain low because VOC emissions for Building 110 are limited to less than 10 tons per 12 consecutive months period rolled on a monthly basis. IDEM determines the Building 110 emissions using the detailed batch records kept by Eli Lilly. The records consist of the amount of each solvent contained in each input, product, and waste stream for each batch operation including: New solvent added, solvent generated during the process reactions, solvent added from another batch, waste solvent generated, solvent sent to the sewer, solvent consumed during process reactions, solvent drummed for later use, and solvent collected and emitted during product drying. Eli Lilly measures the new and recovered solvent used, the solvent in the liquid waste, and the material collected from the condenser during drying. The amount of each solvent that is generated or consumed by the chemical reactions is calculated using information found in process notebooks that are available for inspection. The air emissions are obtained by a material balance calculation by subtracting the measured waste solvent and dryer collected product and the calculated solvent consumed from the measured solvent added and the calculated solvent generated. Eli Lilly tallies the VOC emission amounts for all batches to determine the monthly VOC emissions from Building 110.

Indiana requested VOC rule revisions for sources in Eli Lilly's Building 110. Eli Lilly is also now allowed to add equipment to and move equipment around Building 110 without the need for approval of a new SIP revision. Previously, Eli Lilly had listed its equipment and the module where it was being used. Equipment changes required a permit and a SIP revision. The new process simplifies the addition of new equipment within certain parameters, while establishing a strict building-wide VOC limit. Other changes include allowing the condensers on the reactors to maintain a steady temperature. This is a change from the requirements of 326 IAC 8-5-3 (b)(1)(A), which varies the condenser temperature based on the solvent vapor pressure.

Indiana has submitted Technical Support Documents in support of the requested SIP revision. It has also provided a listing of the solvents used in the reactors. The two technically feasible control techniques for Eli Lilly to meet the 326 IAC 8-5-3 requirements are absorption and condensation. Indiana found these to be economically infeasible for both absorption and for condensation at −25°C, a level that ensures compliance with 326 IAC 8-5-3 (b)(1)(A). Indiana determined that RACT for Eli Lilly's pilot plant is operating condensers at −10°C on the reactors, enclosing all centrifuges and filters, and no controls on vacuum dryers. Air dryers, storage tanks, and in-process tanks in Building 110 comply with 326 IAC 8-5-3.

Indiana also replaced an equipment list for each module in the pilot plant as contained in a 1994 construction permit (CP 097-3341), with the requirement that Eli Lilly can add sources without a SIP revision if:

• They are part of Eli Lilly's research and development (R&D) process;

• They comply with the RACT plan provided in Commissioner's Order #2003-02, Appendix A; and,

• The total Building 110 VOC emissions remain limited to less than 10 TPY.

This gives Eli Lilly more flexibility with its R&D equipment and eliminates the need for both Indiana and EPA to review numerous SIP revisions for sources with low emissions levels.

EPA finds that these revisions can be approved. Building 110 sources are used for R&D activities. The pharmaceutical products made there are used to test more efficient production processes and to develop new pharmaceutical products. This means there are frequent changes in the equipment and solvents used in production. EPA believes that the requested revisions are appropriate considering the operations occurring in Building 110 and the annual building-wide VOC limit of less than 10 TPY.

Reactions involving VOCs and nitrogen oxides in warm air form tropospheric (ground level) ozone. The highest concentrations of ozone occur in the warm months of the year. Ozone decreases lung function causing chest pain and coughing. It can aggravate asthma and other respiratory diseases. Children playing outside and healthy adults who work or exercise outside also may be harmed by elevated ozone levels. Ozone also reduces vegetation growth and reproduction including economically important agricultural crops.

Eli Lilly's Building 110 VOC emissions are limited to less than 10 tons per 12 consecutive months period rolled on a monthly basis. Eli Lilly must keep its VOC emissions below 10 TPY, even if it adds more R&D equipment to Building 110. This should continue to protect the air quality of Marion County, Indiana. In addition, Eli Lilly remains subject to all applicable New Source Review requirements.

The EPA is approving, through direct final rulemaking, revisions to VOC emissions regulations for the Eli Lilly pharmaceutical manufacturing facility in Marion County, Indiana. The revisions include an exemption from the control requirements of 326 IAC 8-5-3 for reactors, centrifuges, filters, and vacuum dryers in Building 110, the pilot plant. This exemption can be approved under Indiana's site-specific RACT rule, 326 IAC 8-1-5. Eli Lilly is also authorized to add R&D equipment to Building 110 without additional rulemaking. Eli Lilly will follow the appropriate RACT plan for the new equipment and keep the total annual VOC limit for Building 110 to less than 10 TPY.

We are publishing this action without a prior proposal because we view these as noncontroversial revisions and anticipate no adverse comments. However, in the “Proposed Rules” section of today's Federal Register , we are publishing a separate document that will serve as the proposal to approve the SIP revision if written adverse comments are filed. This rule will be effective on January 7, 2005 without further notice unless we receive relevant adverse written comment by December 8, 2004. If the EPA receives adverse written comment, we will publish a final rule informing the public that this rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. The EPA does not intend to institute a second comment period on this action. Any parties interested in commenting on these actions must do so at this time.

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. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 804, however, exempts from section 801 the following types of rules: Rules of particular applicability; rules relating to agency management or personnel; and rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of particular applicability.

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 January 7, 2005. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2).)

This is a summary of the Federal Communications Commission's consolidated Second Report and Order in WT Docket No. 00-48 and Sixth Report and Order in PR Docket No. 92-257, FCC 04-3, adopted on January 8, 2004, and released on February 12, 2004. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street, SW., Washington, DC 20554. The complete text may be purchased from the Commission's copy contractor, Qualex International, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. The full text may also be downloaded at: http://www.fcc.gov . Alternative formats are available to persons with disabilities by contacting Brian Millin at (202) 418-7426 or TTY (202) 418-7365 or at bmillin@fcc.gov .

1. In the Second Report and Order and Sixth Report and Order , we adopt changes to parts 13 and 80 of the Commission's rules that were either proposed in or suggested in response to the Further Notice of Proposed Rule Making (“ FNPRM ”) in WT Docket No. 00-48, which was released on April 9, 2002, 67 FR 35086, May 17, 2002, and the Fourth Further Notice of Proposed Rule Making (“ Fourth FNPRM ”) in PR Docket No. 92-257, which was released on December 28, 2001, 67 FR 5080, February 4, 2002. The FNPRM proposed to amend part 80 of the Commission's rules to reflect the implementation domestically of the Global Maritime and Distress Safety System (“GMDSS”) by conforming the rules to revised and updated international standards for GMDSS; deleting or modifying rules affected by full implementation of GMDSS; and to delete or modify any other regulations pertaining to GMDSS that may be unnecessary or in need of clarification. The Fourth FNPRM invited public comment on a number of recommendations from the United States Coast Guard (“USCG”) and from MariTEL, Inc. (“Maritel”), a Commission licensee, to amend the rules pertaining to VHF public coast (“VPC”) stations.

2. The Commission takes the following significant actions in the Second Report and Order in WT Docket No. 00-48: (i) Declines to create a voluntary restricted Global Maritime Distress and Safety System (GMDSS) license for recreational boaters; (ii) clarifies the responsibilities of VPC stations that receive calls on the digital selective calling (“DSC”) distress frequency, Channel 70; (iii) clarifies that VPC stations that are not exempt from the VHF Channel 16 watch requirement must have a radio operator on duty; (iv) prohibits ship operation of any device capable of transmitting on a distress frequency without regulatory authorization; (v) redesignates Channels 75 and 76 for communications related to port operations, and establish requirements for equipment to operate on the channels with reduced carrier power; (vi) authorizes domestic use of INMARSAT-E emergency position indicating radiobeacons (“EPIRBs”) and establishes standards for such devices; (vii) requires that small passenger vessels have DSC capability one year after the USCG declares Sea Areas A1 and A2 to be operational, and establishes additional equipment requirements for such vessels; (viii) declines to specify that the qualified GMDSS operator required to be on vessels under our rules must be assigned exclusively to radio communications duties during an emergency; (ix) updates the requirements for ship radio installations to incorporate new international regulations; (x) incorporates into the rules the international requirement that all passenger ships have the ability to communicate with search and rescue personnel on two specified aeronautical frequencies; (xi) determines to continue listing the carrier frequency, rather than the assigned frequency, in part 80 tables of frequencies; and (xii) specifies the number of questions to include in the GMDSS radio operator license examinations.

3. The Commission takes the following significant actions in the Sixth Report and Order in PR Docket No. 92-257: (i) Clarifies the responsibilities of VPC stations as to when they must maintain a watch on the Channel 16 distress frequency and as to their obligation to notify the USCG of a station relocation; (ii) generally declines to impose additional technical requirements for VPC stations operating on offset channels; (iii) denies a request to reallocate nine channel pairs from public safety and other private land mobile radio operations to use by VPC stations; (iv) adopts new rules requested by the USCG to govern the implementation of Automatic Identification Systems (“AIS”); (v) establishes a new emission mask in part 80 to accommodate a wide range of data services; (vi) eliminates the station identification requirement for VPC stations licensed on a geographic area basis; (vii) authorizes VPC stations to maintain required station records in electronic form; (viii) relaxes the posting requirement for VPC stations; and (ix) clarifies that VPC stations, like other providers of commercial mobile radio services, have been relieved of certain filing requirements as a matter of forbearance.

4. The Second Report and Order and Sixth Report and Order does not contain any new or modified information collection.

5. As required by the Regulatory Flexibility Act of 1980, as amended (“RFA”), the Commission has prepared a Final Regulatory Flexibility Analysis (“FRFA”) of the rules adopted in the Second Report and Order in WT Docket No. 00-48. The Commission's Consumer and Governmental Affairs Bureau, Reference Information center, will send a copy of the Second Report and Order in WT Docket No. 00-48, including the FRFA , to the Chief Counsel for Advocacy of the Small Business Administration, in accordance with the RFA .

6. The rules adopted in the Second Report and Order are intended to further streamline, consolidate and clarify the Commission's part 80 rules; remove unnecessary or duplicative requirements; address new international maritime requirements; and promote flexibility and efficiency in the use of marine radio equipment in a manner that will further maritime safety. Specifically, in the Second Report and Order the Commission (i) declines to create a voluntary restricted Global Maritime Distress and Safety System (GMDSS) license for recreational boaters; (ii) clarifies the responsibilities of VHF public coast stations that receive calls on the DSC distress frequency, Channel 70; (iii) clarifies that VHF public coast stations that are not exempt from the VHF Channel 16 watch requirement must have a radio operator on duty; (iv) prohibits ship operation of any device capable of transmitting on a distress frequency without regulatory authorization; (v) redesignates Channels 75 and 76 for communications related to port operations, and establishes requirements for equipment to operate on the channels with reduced carrier power; (vi) authorizes domestic use of INMARSAT-E emergency position indicating radiobeacons (EPIRBs) and establishes standards for such devices; (vii) requires that small passenger vessels have digital selective calling capability one year after the U.S. Coast Guard (Coast Guard or USCG) declares Sea Areas A1 and A2 to be operational, and establishes additional equipment requirements for such vessels; (viii) declines to specify that the qualified GMDSS operator required to be on vessels under our rules must be assigned exclusively to radio communications duties during an emergency; (ix) updates the requirements for ship radio installations to incorporate new international regulations; (x) incorporates into the rules the international requirement that all passenger ships have the ability to communicate with search and rescue personnel on two specified aeronautical frequencies; (xi) determines to continue listing the carrier frequency, rather than the assigned frequency, in part 80 Tables of Frequencies; and (xii) specifies the number of questions to be included in the GMDSS radio operator license examinations.

7. No comments were submitted specifically in response to the IRFA. We note, however, that the Passenger Vessel Association (PVA) indicated that it was opposed to several of the proposed rules because of the compliance costs that would be incurred by small passenger vessel operators, many of which are small businesses. Specifically, PVA argued that the costs of compliance outweighed the safety benefits of the proposed rules requiring that the VHF and MF radios carried by small passenger vessels be upgraded to have digital selective calling (DSC) capability; that on passenger ships, at least one qualified person must be assigned to perform only radio communications duties during distress situations; and that passenger vessels be equipped with means for two-way on-scene radiocommunications for search and rescue purposes using the aeronautical frequencies 121.5 and 123.1 MHz. We have considered the potential economic impact on small entities of these rules and the other rules discussed in the IRFA, and we have considered alternatives that would reduce the potential economic impact on small entities of the rules enacted herein, regardless of whether the potential economic impact was discussed in any comments.

8. 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. The RFA 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 the Small Business Act. A small business concern is one which: (i) Is independently owned and operated; (ii) is not dominant in its field of operation; and (iii) satisfies any additional criteria established by the Small Business Administration (SBA).

9. Small businesses in the aviation and marine radio services use a marine very high frequency (VHF), medium frequency (MF), or high frequency (HF) radio, any type of emergency position indicating radio beacon (EPIRB) and/or radar, an aircraft radio, and/or any type of emergency locator transmitter (ELT). The Commission has not developed a definition of small entities specifically applicable to these small businesses. For purposes of this FRFA , therefore, the applicable definition of small entity is the definition under the SBA rules applicable to wireless telecommunications. Pursuant to this definition, a “small entity” for purposes of the ship station licensees, public coast station licensees, or other marine radio users that may be affected by these rules, is any entity employing 1,500 of fewer persons. 13 CFR 121.201 (NAICS Code 517212). Since the size data provided by the Small Business Administration do not enable us to make a meaningful estimate of the number of marine radio service providers and users that are small businesses, we have used the 1992 Census of Transportation, Communications, and Utilities, conducted by the Bureau of the Census, which is the most recent information available. This document shows that twelve radiotelephone firms out of a total of 1,178 such firms which operated in 1992 had at least 1,000 employees. Thus, we estimate that as many as 1,166 small entities may be affected.

10. Some of the rules adopted herein affect VHF public coast station licensees. The Commission has defined the term “small entity” specifically applicable to public coast station licensees as any entity employing less than 1,500 persons, based on the definition under the Small Business Administration rules applicable to radiotelephone service providers. See Amendment of the Commission's rules Concerning Maritime Communications, Third Report and Order and Memorandum Opinion and Order , 13 FCC Rcd 19853, 19893 (1998) (citing 13 CFR 121.201, Standard Industrial Classification (SIC) Code 4812, now NAICS Code 513322). Since the size data provided by the Small Business Administration do not enable us to make a meaningful estimate of the number of public coast station licensees that are small businesses, we have used the 1992 Census of Transportation, Communications, and Utilities, conducted by the Bureau of the Census, which is the most recent information available. This document shows that twelve radiotelephone firms out of a total of 1,178 such firms which operated in 1992 had 1,000 or more employees. Thus, we estimate that no fewer than 1,166 small entities will be affected.

11. Some of the rules adopted herein may also affect small businesses that manufacture marine radio equipment. The Commission has not developed a definition of small entities applicable to marine radio equipment manufacturers. Therefore, the applicable definition is that for Wireless Communications Equipment Manufacturers. The SBA has established a small business size standard for radio and television broadcasting and wireless communications equipment manufacturing. Under this standard, firms are considered small if they have 750 or fewer employees. Census Bureau data for 1997 indicate that, for that year, there were a total of 1,215 establishments in this category. 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%, so the Commission estimates that the number of wireless equipment manufacturers with employment under 500 was actually closer to 706, with and additional 23 establishments having employment of between 500 and 999. The Commission estimates that the great majority of wireless communications equipment manufacturers are small businesses.

12. In the Second Report and Order , we adopt several rule amendments that may affect reporting, recordkeeping and other compliance requirements for small entities. First, we amend § 80.203 of the rules to bar ship stations from including any device capable of transmitting on a distress frequency without regulatory authorization. This prohibition could affect small entities that manufacture ship radio equipment. Second, we amend § 80.215(g)(3) to require that ship station transmitters have Channels 75 and 76, and automatically reduce the carrier power to one watt or less when tuned those channels, with no manual override capability. This new requirement could affect small entities that manufacture or use such transmitters. Third, we adopt a number of new requirements for small passenger vessels: a requirement that the VHF and MF radios already mandated by § 80.905(a) of the rules be DSC-equipped; a requirement that the single sideband (SSB) radios required to be carried by ships operating over one hundred nautical miles from shore be DSC-equipped; a requirement that the INMARSAT ship earth stations that may be carried by ships operating more than one hundred nautical miles from shore in lieu of an SSB radio be limited to specified classes of earth stations; a requirement that vessels required to carry a SSB radio with a reserve power supply also carry a reserve power supply for the navigation receiver; and a requirement for updating position information. These requirements may have a direct economic impact on operators of small passenger vessels. Finally, we amend § 80.1085 of the rules to require that every passenger ship be provided with means for two-way on-scene radiocommunications for search and rescue purposes using the aeronautical frequencies 121.5 and 123.1 MHz from the position from which the ship is normally navigated.

13. In the IRFA accompanying the FNPRM in this proceeding, we specifically identified each of the above rule amendments as potentially affecting reporting, recordkeeping and other compliance requirements, and specifically requested comment on the economic impact of these changes.

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

15. With respect to all of the rules adopted in the Second Report and Order that may affect reporting, recordkeeping and other compliance requirements for small entities, as identified in section D of the FRFA , supra , we have considered how we might minimize the economic impact on small entities, and we have considered alternative measures that might minimize that impact. As a general matter, the alternatives considered, and in many cases adopted, include exempting small entities from the requirement; providing “grandfathering” protection from the requirement; providing a transition period to give either small entities or all affected entities additional time to come into compliance; and imposing a less burdensome requirement, either for small entities or for all affected entities. In addition, to the extent we establish here new standards for authorization of marine radio equipment, we have generally required compliance with performance standards, rather than prescribing a particular equipment design. In the IRFA accompanying the FNPRM in this proceeding, we specifically requested comment addressing particular alternatives that may be appropriate for particular rules proposed or discussed in the FNPRM . Although we received no comments specifically addressed to the IRFA, we have considered all comments to the FNPRM addressing the impact of any proposed change on small entities and all suggestions for alternative measures that would have a less significant impact on small entities. Moreover, even where we received no comments of this nature with regard to a particular new requirement, we considered the potential impact of the requirement on small entities, and considered alternatives. We discuss each of the specific new requirements adopted in the Second Report and Order, and relevant alternatives, below.

16. In the Second Report and Order , we amend § 80.203 of the rules to bar ship stations from including any device capable of transmitting on a distress frequency without regulatory authorization. This rule change had been proposed by the Coast Guard, and the FNPRM specifically asked for comment on whether this rule change would hamper the ability of manufacturers to add tone signaling capability or to otherwise improve their equipment. However, no manufacturer commented on this rule change, no commenter opposed it, and there is nothing in the record to indicate that it will adversely effect manufacturers. In any event, given that this rule change does not require manufacturers to add any features or capabilities to equipment, but merely prohibits what was never affirmatively authorized in the first place, there is no reason to phase in this requirement gradually. Further, there is no basis in the record to exempt manufacturers that are small entities from this requirement. Any such exemption, moreover, would jeopardize maritime safety since any unauthorized emissions on a distress frequency, from whatever source, could compromise the ability of the Coast Guard to process and respond to distress signals.

17. In the Second Report and Order, we amend § 80.215(g)(3) to require that ship station transmitters have Channels 75 and 76, and automatically reduce the carrier power to one watt or less when tuned those channels, with no manual override capability. In the FNPRM, the Commission expressed concern about the impact of this rule on manufacturers, and specifically solicited comment on appropriate grandfathering protection if the new requirements are adopted. No manufacturer commented on the proposed equipment requirements relating to Channels 75 and 76, and no one opposed such requirements. The only commenter responding to the Commission's request for input on appropriate grandfathering protection was the Coast Guard, which stated simply that it supports grandfathering protection of some sort. Notwithstanding the absence of comment on this issue from manufacturers or vessel operators, we have provided both grandfathering protection for existing installed equipment and a transitional period before new installations have to comply with the new requirements. Specifically, non-compliant equipment installed prior to the effective date of these rules is grandfathered indefinitely, so that it may continue to be used for its remaining useful life. In addition, we are allowing installations of non-compliant equipment until one year after the effective date of the Second Report and Order. We believe these actions will effectively minimize the compliance burden of this requirement on manufacturers and ship station licensees, especially any affected small entities. Given that no manufacturers commented on these rules, we do not believe this approach will leave manufacturers with stranded inventory. We decline to exempt small entities from these requirements because the benefits of designating Channels 75 and 76 for port operations, and the associated equipment requirements, cannot be fully realized unless access to Channels 75 and 76 is ubiquitous, and because there is nothing in the record of this proceeding to suggest a need for such an exemption, especially given the grandfathering and transition provisions we have adopted.

18. In the Second Report and Order, we adopt a requirement that the VHF and MF radios already mandated by § 80.905(a) of the rules be DSC-equipped. The Passenger Vessel Association (PVA) filed comments opposing this requirement. PVA contends that small passenger vessels that are not subject to GMDSS requirements under SOLAS should not be required to meet GMDSS-derived equipment requirements such as this. PVA further asserts that many of the vessel operators that will be affected by this requirement are small businesses, and suggested that, instead of eliminating or tightening the exemption, the Commission should broaden the exemption to cover all passenger-carrying vessels, irrespective of size, that operate in protected waterways, such as harbors, bays and waterways covered by Vessel Traffic Systems. We decline to exempt any class of vessels otherwise subject to § 80.905(a) from the new DSC requirement, even with respect to vessels owned and operated by small businesses and/or restricted to voyages in particular inland or coastal waterways. We agree with the Coast Guard and the GMDSS Task Force that the public safety benefits of imposing this requirement on small passenger vessels are paramount. DSC represents an important enhancement of maritime safety, and requiring DSC capability in small passenger vessels, even those limited to voyages on protected waterways, will provide safety benefits not only to the passengers and crew on such vessels, but to all GMDSS participating vessels. We also believe, moreover, that the compliance costs of this requirement will not be significant because, pursuant to § 80.203(n) of the Commission's rules, the Commission already requires that all VHF and MF marine radio transmitters submitted for equipment authorization have DSC capability. In fact, the DSC requirement has applied to all VHF and MF marine radio transmitters submitted for equipment authorization since June 17, 1999. As a consequence of this requirement, more and more of the new equipment available in the market will be DSC-capable. In addition, as a means to minimize whatever compliance costs are incurred by small passenger vessel operators, we have decided to defer the compliance deadline for this requirement. We will not require that VHF radios be upgraded to DSC until one year after the Coast Guard declares Sea Area A1 to be operational, and we will not require that MF radios be upgraded to DSC until one year after the Coast Guard declares Sea Area A2 to be operational. This compliance deadline is sufficiently far off that it will give affected small passenger vessel operators ample time to plan and budget for the required upgrades. In addition, as the deadline for compliance extends further into the future, it is likely that there will be fewer non-DSC transmitters in manufacturers' and retailers' inventory (because of the DSC requirement in § 80.203(n)), and we therefore expect that most new VHF and MF radio equipment available in the market during the time period immediately preceding the compliance deadline will have DSC capability, further minimizing the economic impact on small entities.

19. In the Second Report and Order, we adopt a requirement that the SSB radios required of ships operating over one hundred nautical miles from shore, pursuant to § 80.905, be DSC-equipped. The Coast Guard was the only party directly commenting on this issue, and it stated that, as in the case of VHF and MF radio equipment, requiring DSC capabilities in SSB radios will provide significant safety advantages over non-DSC equipment. No party opposed this requirement or attempted to quantify the compliance costs. On this record, then, we believe considerations of maritime safety should be given paramount weight. Indeed, given that the subject vessels by definition operate more than one hundred nautical miles from shore, the safety benefits of this requirement are even greater than those we have adopted for VHF and MF radios in vessels that do not operate so far from shore. Significantly, DSC capability will enhance the ability of passenger vessels on such voyages to contact nearby ships as well as shore facilities. Although we decline to exempt small passenger vessel operators that qualify as small entities from this DSC requirement, we have determined to give affected parties until one year after the effective date of the Second Report and Order before requiring compliance. We believe this reasonably fulfills the objective of minimizing compliance costs for small entities without compromising the objective of promoting public safety on the high seas. We do not hinge the compliance deadline in this case on the timing of the Coast Guard's declaration of Sea Area A1 or Sea Area A2 because vessels operating more than one hundred nautical miles from shore are operating in Sea Area A3.

20. In the Second Report and Order, we adopt a requirement that the INMARSAT ship earth stations that may be carried by ships operating more than one hundred nautical miles from shore in lieu of an SSB radio, pursuant to § 80.905, be limited to specified classes of earth stations. We do not believe this requirement should have a significant impact on any small entities. No commenter opposed this proposal. In addition, we note that the rule merely permits the use of an INMARSAT earth station as an alternative to other equipment, rather than mandating the use of an INMARSAT earth station in all instances. Nonetheless, we have decided to relax the requirement, as it was proposed in the FNPRM, by adding the INMARSAT Mini-M to the list of approved earth stations. As thus revised, we believe the adopted rule represents a reasonable compromise between tightening the existing rule for safety reasons while according a fair measure of flexibility to small passenger vessel operators, especially small entities, in selecting an earth station that will be deemed suitable to obviate the need for an SSB radio.

21. In the Second Report and Order, we extend the current § 80.905 SSB reserve power supply requirement to the navigation receiver. No party has opposed this proposal or provided information that would permit a quantification of estimated compliance costs. The Coast Guard, the only commenter on this issue, urges adoption of the requirement because of the safety benefits. We agree with the Coast Guard. Since this rule merely extends an existing reserve power supply requirement to an additional piece of equipment, and there have been no comments in opposition to this proposal, we see no basis for exempting small entities from this requirement or providing an extended implementation period.

22. In the Second Report and Order, we adopt a new requirement specifying that vessels subject to § 80.905 must comply with the requirement in § 80.1085(c) for updating position information. In discussing the proposal for this rule in the FNPRM, the Commission observed that its adoption would impose a GMDSS requirement on small passenger vessels. The only party commenting on this matter was the Coast Guard, which reiterated its support for this requirement because it will enable the Coast Guard to locate mariners in a more timely manner and better utilize its limited resources. No party opposed this requirement, and the record is devoid of information as to the costs of compliance. Accordingly, we find no basis in the record to exempt some small passenger vessels from this requirement or to delay its implementation through a phased-in schedule.

23. Finally, in the Second Report and Order, we amend § 80.1085 of the rules to require that every passenger ship be provided with means for two-way on-scene radiocommunications for search and rescue purposes using the aeronautical frequencies 121.5 and 123.1 MHz from the position from which the ship is normally navigated. PVA argues that a requirement for on-scene radios with aeronautical frequencies is expensive and is not useful outside of open ocean environments. It urges that this requirement not be imposed upon passenger vessels operating in or near coastal, inland, and other protected waters. More broadly, PVA complains that the USCG's proposals in this proceeding indicate that the USCG is seeking to extend equipment requirements that are justified for vessels in open-ocean service to vessels on domestic voyages. We agree with PVA that equipment requirements that make sense for vessels on the open ocean should not be extended without further analysis to vessels that stay closer to shore. However, we disagree with PVA that an on-scene capability for two-way radiocommunications with aircraft using the aeronautical frequencies 121.5 and 123.1 MHz offers no potential safety benefits to vessels on domestic voyages. We believe that the ability to communicate with helicopters or other aircraft involved in search and rescue operations could save lives where, for example, a passenger vessel catches fire and is exuding thick smoke on an inland waterway. We further believe that these safety benefits militate against exempting certain vessels from this requirement, based either on the operator's small business status or the restriction of the vessel to inland or protected waterways, or a combination of both factors. Additionally, we do not believe that adopting this requirement in the part 80 rules imposes a new compliance cost on passenger vessels since the requirement was imposed internationally under SOLAS well before the release of this order. Moreover, because the safety benefits of this requirement are not dependent on GMDSS implementation, and because passenger vessels are already required to have this capability under SOLAS, we see no reason to defer the effective date of this requirement to one year after Sea Area A1 or Sea Area A2 implementation, as we have done with some of the other requirements adopted herein in the interest of reducing compliance costs. However, we believe it is appropriate to defer the effective date for this requirement for some shorter period in order to mitigate the compliance costs for small passenger vessel operators. Accordingly, we will make this requirement effective six months after the effective date of the Second Report and Order.

24. None.

Report to Congress: The Commission will send a copy of the Second Report and Order in WT Docket No. 00-48, including the Final Regulatory Flexibility Analysis, 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 in WTB Docket No. 00-48, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the SBA.

25. As required by the RFA, the Commission has also prepared a FRFA of the rules adopted in the Sixth Report and Order in PR Docket No. 92-257. The Commission's Consumer and Governmental Affairs Bureau, Reference Information center, will send a copy of the Sixth Report and Order in PR Docket No. 92-257, including the FRFA, to the Chief Counsel for Advocacy of the Small Business Administration, in accordance with the RFA.

26. The rules adopted in the Sixth Report and Order are intended to further streamline, consolidate and clarify the Commission's part 80 rules governing VHF public coast (VPC) stations; remove unnecessary or duplicative requirements; address new international maritime requirements; and promote flexibility and efficiency in the use of marine radio equipment in a manner that will further maritime safety. Specifically, in the Sixth Report and Order the Commission (i) clarifies the responsibilities of VPC stations as to when they must maintain a watch on the Channel 16 distress frequency and as to their obligation to notify the Coast Guard of a station relocation; (ii) generally declines to impose additional technical requirements for VPC stations operating on offset channels; (iii) denies a request that nine channel pairs now allocated for public safety and other private land mobile radio operations be reallocated for use by VPC stations; (iv) adopts new rules to govern the implementation of Automatic Identification Systems; (v) establishes a new emission mask in Part 80 to accommodate a wide range of data services; (vi) eliminates the station identification requirement for VPC stations licensed on a geographic area basis; (vii) authorizes VPC stations to maintain required station records in electronic form; (viii) relaxes the posting requirement for VPC stations; and (ix) provides a clarification in the rules that VPC stations, like other providers of commercial mobile radio services, have been relieved of certain filing requirements as a matter of forbearance.

27. No comments were submitted specifically in response to the IRFA. Nonetheless, we have considered the potential economic impact on small entities of the rules discussed in the IRFA, and we have considered alternatives that would reduce the potential economic impact on small entities of the rules enacted herein.

28. 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 rules adopted herein. The RFA 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 the Small Business Act. A small business concern is one which: (i) Is independently owned and operated; (ii) is not dominant in its field of operation; and (iii) satisfies any additional criteria established by the Small Business Administration (SBA).

29. Small businesses in the aviation and marine radio services use a marine very high frequency (VHF), medium frequency (MF), or high frequency (HF) radio, any type of emergency position indicating radio beacon (EPIRB) and/or radar, an aircraft radio, and/or any type of emergency locator transmitter (ELT). The Commission has not developed a definition of small entities specifically applicable to these small businesses. For purposes of this FRFA, therefore, the applicable definition of small entity is the definition under the SBA rules applicable to wireless telecommunications. Pursuant to this definition, a “small entity” for purposes of the ship station licensees, public coast station licensees, or other marine radio users that may be affected by these rules, is any entity employing 1,500 of fewer persons. 13 CFR 121.201 (NAICS Code 517212). Since the size data provided by the Small Business Administration do not enable us to make a meaningful estimate of the number of marine radio service providers and users that are small businesses, we have used the 1992 Census of Transportation, Communications, and Utilities, conducted by the Bureau of the Census, which is the most recent information available. This document shows that twelve radiotelephone firms out of a total of 1,178 such firms which operated in 1992 had at least 1,000 employees. Thus, we estimate that as many as 1,166 small entities may be affected.

30. Some of the rules adopted herein affect VHF public coast station licensees. The Commission has defined the term “small entity” specifically applicable to public coast station licensees as any entity employing less than 1,500 persons, based on the definition under the Small Business Administration rules applicable to radiotelephone service providers. See Amendment of the Commission's Rules Concerning Maritime Communications, Third Report and Order and Memorandum Opinion and Order, 13 FCC Rcd 19853, 19893 (1998) (citing 13 CFR 121.201, Standard Industrial Classification (SIC) Code 4812, now NAICS Code 517212). Since the size data provided by the Small Business Administration do not enable us to make a meaningful estimate of the number of public coast station licensees that are small businesses, we have used the 1992 Census of Transportation, Communications, and Utilities, conducted by the Bureau of the Census, which is the most recent information available. This document shows that twelve radiotelephone firms out of a total of 1,178 such firms which operated in 1992 had 1,000 or more employees. Thus, we estimate that no fewer than 1,166 small entities will be affected.

31. Some of the rules adopted herein may also affect small businesses that manufacture marine radio equipment. The Commission has not developed a definition of small entities applicable to marine radio equipment manufacturers. Therefore, the applicable definition is that for Wireless Communications Equipment Manufacturers. The SBA has established a small business size standard for radio and television broadcasting and wireless communications equipment manufacturing. Under this standard, firms are considered small if they have 750 or fewer employees. Census Bureau data for 1997 indicate that, for that year, there were a total of 1,215 establishments in this category. 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%, so the Commission estimates that the number of wireless equipment manufacturers with employment under 500 was actually closer to 706, with and 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.

32. D. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities

33. The Sixth Report and Order does not impose any additional reporting, recordkeeping, or other compliance requirements on small entities. The rule amendments adopted in the Sixth Report and Order generally relieve VPC station licensees of existing requirements or relax those requirements. The Sixth Report and Order does amend section 80.302(a) of the Commission's rules to expressly mandate that VPC licensees subject to a Channel 16 watch requirement must notify the Coast Guard as soon as practicable of a relocation of the station. This requirement was not opposed by any party. In fact, the only parties commenting on the issue—the Coast Guard and a VPC licensee—urged the Commission to adopt this rule change. Accordingly, we do not believe this requirement will have a direct and significant economic impact on any small entities or, for that matter, any entities at all. In any event, and as we state in the Sixth Report and Order, this is not a new or additional requirement. Prior to the amendment adopted herein, section 80.302(a) specified that a VPC licensee subject to the watch requirement must notify the Coast Guard as soon as practicable when there is any change in the operation of the station that would result in a “discontinuance, reduction or suspension” of the watch. We believe this language already encompassed a requirement to notify the Coast Guard of a relocation of the watch, and we have amended the rule only to clarify the point, as requested by the commenters.

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

35. As explained in section D of the FRFA, supra, the Sixth Report and Order does not impose any additional reporting, recordkeeping, or other compliance requirements on small entities. The rule amendments adopted in the Sixth Report and Order generally relieve VPC station licensees of existing requirements or relax those requirements.

36. None.

Report to Congress: The Commission will send a copy of the Sixth Report and Order in PR Docket No. 92-257, including the Final Regulatory Flexibility Analysis, in a report to be sent to Congress pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the Sixth Report and Order in PR Docket No. 92-257, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the SBA.

33. The Commission's Consumer Information Bureau, Reference Information Center, shall send a copy of the Second Report and Order/Sixth Report and Order including the Final Regulatory Flexibility Analyses to the Chief Counsel for Advocacy of the Small Business Administration.

This is a summary of the Commission's Report and Order, MM Docket No. 01-47 adopted October 20, 2004, and released October 25, 2004. The full text of this Commission decision is available for inspection and copying during normal business hours in the Commission's Reference Center, 445 Twelfth Street, SW., Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20054, telephone 1-800-378-3160 or http://www.BCPIWEB.com. The Commission will send a copy of this Report and Order in a report to be sent to Congress and the General Accounting Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

Channel 285A can be allotted to Hico consistent with the Commission's minimum distance separation requirements at city reference coordinates. The reference coordinates for Channel 285A at Hico are 31-58-54 North Latitude and 98-01-54 West Longitude. Channel 237A can be allotted to Meridian consistent with the Commission's minimum distance separation requirements provided there is a site restriction of 7.4 kilometers (4.6 miles) northwest of the community. The reference coordinates for Channel 237A at Meridian are 31-59-07 North Latitude and 97-41-22 West Longitude. Channel 237C3 can be allotted to Teague, in compliance with the Commission's minimum distance separation requirements provided there is a site restriction of 19.6 kilometers (12.2 miles) north of the community. The reference coordinates for Channel 237C3 at Teague are 31-47-33 North Latitude and 96-12-39 West Longitude.

This is a synopsis of the Commission's Report and Order, MB Docket No. 04-33, adopted October 20, 2004, and released October 25, 2004. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The document may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or http://www.BCPIWEB.com . The Commission will send a copy of this Report and Order in a report to be sent to Congress and the General Accounting Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

This is a synopsis of the Report and Order in MB Docket No. 04-150 adopted October 20, 2004, and released October 25, 2004. The full text of this decision is available for inspection and copying during normal business hours in the FCC Reference Information Center at Portals ll, CY-A257, 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or http://www.BCPIWEB.com . The Commission will send a copy of this Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

This is a synopsis of the Commission's Report and Order in MB Docket No. 02-248, adopted October 20, 2004, and released October 25, 2004. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The document may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or http://www.BCPIWEB.com. The Commission will send a copy of this Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

The groundfish fisheries in the Exclusive Economic Zone of the GOA and the BSAI are managed under the FMPs. The Council prepared the FMPs under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801, et seq. Regulations implementing the FMPs appear at 50 CFR part 679. General regulations governing U.S. fisheries also appear at 50 CFR part 600.

The Council submitted Amendments 48/48 for Secretarial review and a notice of availability (NOA) of the FMP amendments was published in the Federal Register on July 14, 2004 (69 FR 42128), with comments on the FMP amendments invited through September 13, 2004. A complete description of the amendments is in the NOA. The proposed rule for this action was published in the Federal Register on July 27, 2004 (69 FR 44634), with comments on the proposed rule invited through September 10, 2004. Four letters of comment were received on the FMP amendments and the proposed rule. Comments are summarized and responded to under Comments and Responses, below. The Secretary approved Amendments 48/48 on October 12, 2004.

Amendments 48/48 were unanimously recommended by the Council in October 2003. These amendments revise the administrative process used to establish harvest specifications for the groundfish fisheries of the BSAI and GOA. Harvest specifications establish specific limits on the commercial harvest of groundfish and are used to manage the groundfish fisheries. Harvest specifications include total allowable catch (TAC), acceptable biological catch (ABC), overfishing levels, and prohibited species catch amounts, and apportionments thereof, which have been recommended by the Council. The current regulations authorize annual harvest specifications that are applicable January 1 through December 31. The objectives in revising the harvest specifications process are to: (1) manage fisheries based on the best scientific information available, (2) provide adequate opportunity for prior public review and comment to the Secretary on Council recommendations, (3) provide additional opportunity for Secretarial review, (4) minimize unnecessary disruption to fisheries and public confusion, and (5) promote administrative efficiency.

The changes to the harvest specifications process under Amendments 48/48 and considerations in establishing harvest specifications are described in the proposed rule (69 FR 44634, July 27, 2004). This action provides consistency between the groundfish FMPs for the harvest specifications process and provides flexibility during the harvest specifications process to react to the best available science. Amendments 48/48 allow harvest specifications to be effective for up to two fishing years, allowing for the use of either an annual or biennial harvest specifications process. For species on an annual harvest specifications process schedule, two years of harvest specifications will be established, with the second year of specifications being superceded in approximately March or June of the second year by the new set of two years of harvest specifications established each year. Specifying annually two-year harvest specifications is necessary to allow for Administrative Procedure Act rulemaking requirements to be met after the December Council recommendations without disrupting the start of the groundfish fisheries and to ensure that harvest specifications can be updated on an annual basis. A full second year of harvest specifications also is necessary to provide the annual TAC basis for the seasonal apportionment of harvest and associated fisheries that are conducted in the early part of the fishing year.

The stock assessment models used for determining the harvest specifications use two-year projections for biomass and ABC. The frequency of fishery resource surveys also affects whether new information is available to support adjustments to harvest specifications on an annual or biennial basis. Allowing specifications to be effective for up to two years fits well with the frequency of stock projections that must be used for the harvest specifications and provides the Council and NMFS the flexibility to adjust the specifications process frequency in response to potential changes in the frequency of stock assessment surveys or other stock assessment data or administrative issues.

Amendment 48 to the BSAI FMP revises the title of the FMP to read “The Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area.” This change provides a more concise description of the BSAI FMP, establishes consistency with the name of the GOA groundfish FMP, and reduces confusion for users of the two documents. In § 679.1(b), the title of the BSAI FMP is revised to reflect the new title resulting from the approval of Amendment 48 to the BSAI FMP.

Sections 679.20 and 679.21 are revised to implement the new administrative process for harvest specifications under Amendments 48/48. In §§ 679.20(c)(1) and (c)(3) and 679.21(d)(1)(i), (e)(1)(ii), (e)(1)(iii), and (e)(6)(i), the revisions authorize harvest specifications to remain in effect for up to two fishing years, allowing time to comply with rulemaking requirements and ensuring that management is based on the best scientific information available.

Section 679.20(c)(1) is further revised to remove the requirement to address the U. S. harvesting and processing capacity in the proposed harvest specifications. This requirement was necessary when foreign groundfish fishing occurred before the 1990s. Harvesting and processing groundfish in Alaskan waters are performed exclusively by U. S. owned and operated vessels and processors under the Magnuson-Stevens Act and the American Fisheries Act (AFA). Amendments 48/48 remove references to allocations to foreign fishing in the FMPs, and this revision makes the regulations consistent with the FMPs.

The final rule allows NMFS to specify the length of the public comment period for the proposed harvest specifications when the proposed specifications are published. Current regulations require a public comment period of 30 days (§§ 679.20(c)(1), 679.21(d)(2), and 679.21(e)(6)(ii)). The final rule affords NMFS the discretion to specify a comment period of a reasonable period given the length of the document and the complexity of the issues presented when the proposed specifications are published.

The final rule rescinds provisions for interim harvest specifications at § 679.20(c)(2) on April 1, 2005. However, as NMFS implements the new harvest specification process, interim harvest specifications are needed in 2005 until the new harvest specifications are effective. The use of interim harvest specifications until April 1, 2005, ensures no disruption to the 2005 groundfish fisheries prior to the effective date of the final 2005 harvest specifications. Once harvest specifications are implemented under Amendments 48/48, interim harvest specifications no longer are needed. Thus, the applicable regulatory provision authorizing interim harvest specifications is rescinded on April 1, 2005.

The species listed for seasonal allowances for the final harvest specifications under §§ 679.20 (c)(1)(ii), (c)(1)(iii), (c)(3)(ii) and (c)(3)(iii) are revised by the final rule. The Steller sea lion protection measures (68 FR 204, January 2, 2003) require the seasonal apportionment of the harvest of Pacific cod, pollock, and Atka mackerel in the BSAI and of Pacific cod and pollock in the GOA. The current regulations reference seasonal harvest specifications only for pollock in the BSAI and GOA. The final rule adds Pacific cod and Atka mackerel seasonal allowances to the BSAI harvest specifications and Pacific cod seasonal allowances to the GOA harvest specifications. Paragraphs (c)(1)(ii) and (c)(1)(iii) of the same section also are revised to be consistent with (c)(3)(ii) and (c)(3)(iii) of the same section so that proposed and final harvest specifications contents are consistent.

The final rule revises §§ 679.20(c)(5) and (c)(6), and 679.62(a)(3) to remove references to interim harvest specifications. Interim harvest specifications will not be used once the new harvest specifications process is effective. These revisions will be effective April 1, 2005, when the regulations for interim harvest specifications at § 679.20(c)(2) are removed.

No changes were made to the final rule from the proposed rule.

Four letters containing 11 unique comments were received regarding the amendments and proposed rule. The comments are summarized and responded to below.

Comment 1. Concern exists regarding use of a biennial harvest specifications process for rockfish species which have TACs established at or near the ABCs. Rockfish species are of particular concern because of their biological sensitivity and high economic value. Significant changes have occurred for some of these species between the proposed and final TAC values based on information available between surveys. Allowing specifications for rockfish to be based on two year old surveys may harm the stocks by allowing too much harvest or may unnecessarily constrain the fishery. Under the future management programs, rockfish harvest likely will be conducted up to the TAC level, so that a TAC set at too high a level has more potential for adverse impacts on the stock.

Response. Amendments 48/48 allow NMFS to adjust the frequency of harvest specifications for a particular species or species group to ensure the use of best available science information. Specifications may be effective for up to two years, but the final rule does not require a biennial harvest specifications process for any GOA species. The EA/RIR/IRFA for Amendments 48/48 (see ADDRESSES ) analyzes the impact of using a biennial process for certain long-lived GOA species, including rockfish, so that the Council and NMFS can make an informed decision during the harvest specifications process in October through December of each year as to whether a particular species should be managed using biennial or annual harvest specifications. The Council has recommended that GOA rockfish be managed on a biennial harvest specifications process based on the information available in the EA/RIR/IRFA for Amendments 48/48. However, new fishery information will be considered during the development of harvest specifications to determine the appropriate effectiveness period of specifications for GOA rockfish species within the two-year maximum. Concerns about the frequency of the harvest specifications process should be brought to the Council's groundfish plan teams and Science and Statistical Committee for consideration during their September and October meetings, respectively.

Comment 2. The primary objective of this rule should be fish health and abundance. The allowance of continual overfishing is severely impacting our children's heritage. The intention of this rule is to add more bureaucracy to confuse the public on how much of our children's heritage is being taken by commercial fisheries.

Response. NMFS' primary objective during the harvest specifications process is the conservation and management of fish resources. Annual or biennial review of the stock assessments for each managed species and the setting of TACs at levels that prevent overfishing help accomplish this objective. Currently, no Alaska groundfish species are known to be experiencing overfishing. This rule provides a meaningful opportunity to the public to review and comment on harvest specifications and is not bureaucratic.

Comment 3. Making a point of helping small businesses is ridiculous. Small businesses may instantly access decisions by computers.

Response. The commentor may be referring to the IRFA analysis completed for this action and the description of the results in the preamble to the proposed rule. This analysis of the potential impacts on small businesses is required by the Regulatory Flexibility Act. The analysis is intended to identify aspects of the action that may be further refined to prevent disproportional adverse impacts on small businesses.

Comment 4. A preferred alternative means that anything the environmental public say will be ignored.

Response. A preferred alternative in a draft EA identifies to the reader the alternative at the time of the draft analysis that is deemed to be the most likely alternative to be implemented based on the results to date in the analysis. Identification of the preferred alternative focuses public comment on the most likely alternative, but comments from all members of the public regarding any proposed rule, FMP amendment, and the supporting draft analyses for both are carefully reviewed and considered before a final decision is made. Public comments can and do influence the development of the final analyses and rules and play a critical role in NMFS' rulemaking process.

Comment 5. Quotas should be cut by 50 percent the first year and 10 percent each year after. Marine sanctuaries should be established.

Response. This action revises the administrative process used to establish harvest levels for a fishing year. The specification of harvest levels is done by separate rulemaking during the harvest specifications process. The decisions on the amount of harvest are based on the best available science and socioeconomic considerations. Whether quotas should be reduced or not is a decision made during the development of harvest specifications and is not germane to this action.

Additionally, this action does not address the creation of marine sanctuaries. The concept of establishing marine reserves is explored in the draft environmental impact statement (EIS) for essential fish habitat (EFH) dated January 2004. Further information on the draft EIS may be found at the NMFS Alaska Region website at www.fakr.noaa.gov .

Comment 6. The Pew Foundation reports on overfishing and regional fishery management council bias and the United Nations report on overfishing are incorporated into the comments from this commentor.

Response. This action has no relationship to overfishing concerns or the membership of regional fishery management councils. The specific concerns and relationship to this action that are represented by these reports are not presented by the commentor. Because no further details are provided by the commentor, NMFS is unable to respond further to this comment.

Comment 7. The proposed rule is written to confuse the public and should be rewritten so that a 12 year old may understand the rule. The proposed rule should be written in compliance with the law that requires the use of plain English.

Response. NMFS strives to use plain language in all documents it creates, including this rule. NMFS has reviewed the language of this rule and believes it is clearly written.

Comment 8. The term “maximizing” is the same as “overfishing.” A two year schedule is an invitation to overfish.

Response. Maximizing the harvest of managed species is not the same as overfishing. Overfishing is defined in section 3 of the Magnuson-Stevens Act as a rate or level of fishing mortality that jeopardizes the capacity of a fishery to produce the maximum sustainable yield on a continuing basis. None of the groundfish species managed in Alaska are known to be experiencing overfishing or are overfished. Maximizing harvest is an important goal related to the Magnuson-Stevens Act and the FMPs. The final rule ensures that harvest levels set for a two-year time period are adjusted through the harvest specifications process to prevent overfishing and to provide for the optimum yield on a continuing basis.

Comment 9. The preamble of the proposed rule should explain the criteria used to determine “good cause” to waive the prior public review and comment on changes made in the harvest specifications between the proposed and final rule under the APA. The criteria should include the use of the best scientific information and consideration of achieving the optimum yield, as described in national standards 1 and 2 of the Magnuson-Stevens Act. This would ensure the “good cause” waiver may be used to adjust TACs either up or down.

Response. “Good cause” to waive prior public review and comment under APA during rulemaking will be determined specific to the relevant circumstances at the time the determination is to be made, and must be based upon specific criteria enumerated in the APA.

Comment 10. NMFS should not use the standard of a “logical outgrowth” in evaluating the differences between the proposed and final harvest specifications. Logical outgrowth is a legal test that is developed in common law. If a “substantial relation” test is used that applies technical expertise and evaluation, NMFS' decision may be accorded more deference in court.

Response. The notice and comment procedures of the APA provide for public participation in the development of rules and produce more informed agency decisionmaking. In order to accomplish these goals, notices of proposed rulemaking must inform the public of the issues in the rulemaking. If a final rule differs to such an extent from the proposed rule that the public was inadequately informed of the issues at stake in the rulemaking, a court may vacate that final rule on the ground that the notice of proposed rulemaking did not provide the public adequate notice. The question of providing the public with adequate notice in a particular rulemaking depends very much on the specific facts and circumstances of the rulemaking. Courts have developed the logical outgrowth test to evaluate the adequacy of notice by determining whether a particular final rule was a logical outgrowth of its notice of proposed rulemaking - that is, whether the purposes of notice and comment were adequately served in the proposed rule. NMFS believes that this is the appropriate standard to apply to notices of proposed and final specifications to ensure achievement of the APA's objectives and success in litigation over fishery specifications.

Comment 11. Harvest specifications should be effective for no more than 18 months rather than for up to two years. NMFS should not depart from using the most recent survey to calculate harvest specifications and should not abandon annual surveys or rulemaking proceedings for cost or other reasons. Allowing harvest specifications to be effective for up to two years was not contemplated during or analyzed in development of Amendments 48/48 and requires a new amendment process to implement.

Response. The rule does not require NMFS to change the current frequency of surveys or to abandon the annual harvest specifications process; however, it does allow NMFS and the Council to implement harvest specifications that will be effective for up to two years when the best available science indicates that a fishery should be managed on a biennial basis.