The final regulations that are the subject of this correction revised §§ 51.2544, Tolerances, and 51.2557, Tolerances.

As published, minor insect injury or vertebrate injury was inadvertently omitted from regulatory text § 51.2544, Table II paragraph (b) and § 51.2557, Table I paragraph (b). Additionally, mold, rancid, decay was incorrectly listed in § 51.2544, Table II paragraph (b)(1), and § 51.2557, Table I paragraph (b)(1). This document corrects those errors. The corrected tables conform to the definitions of serious damage in § 51.2547 and § 51.2560.

The ELRRPP provides direct payments to sheep producers in order to help the U.S. sheep industry achieve sustained competitiveness. A reduction in sheep producer income has experienced reduced production of sheep and lambs and flock size. The domestic sheep industry has experienced reduced market prices, production, flock size, and investment in improving sheep flocks. In addition, persistent drought conditions in major U.S. sheep-producing areas have reduced available feed and forage capacity. The ELRRPP will help alleviate some of the financial stress that sheep producers are facing with an infusion of funds to improve their flocks or meet other obligations.

The Farm Service Agency published a proposed rule for ELRRPP regulations on September 7, 2004, with a 30-day comment period which ended on October 7, 2004. The proposed rule provided that ELRRPP be based on ewe lambs held in the period between August 1, 2003, through July 31, 2004, and then, on through the end of the lamb's own offspring lambing cycle, end at the conclusion of the application period and disbursement of allotted funds. The program will operate under regulations codified in 7 CFR part 784.

The Agency received 21 public comments during the 30-day comment period. One comment was received from a marketing cooperative, 8 comments were received from sheep and lamb producer associations, and 12 comments were received from individual members of sheep and lamb companies or ranch operations. All comments received were in support of the Ewe Lamb Replacement and Retention Payment Program and expressed the need for the program because of bad drought conditions that have severely impacted the sheep and lamb industry over the past few years. In addition, 19 out of 21 of the comments received requested the Agency implement an expeditious sign-up and conclusion so that payments can be issued to producers before the end of the calendar year. No substantive changes were made from the regulations contained in the proposed rule. However, clarifying changes were made to conform the new program with that previously administered and to promote efficiency. An unnecessary and inaccurate reference to a finality rule has been eliminated. Also, a clarifying provision has been added, among others, to specify that a purchase without possession during the base period would not constitute an acquisition in the base period. As clarified, a qualifying ewe lamb must at some point in the base period have been under 18 months old and not have, at that time, produced an offspring of its own. To receive payment, the applicant must certify that the lamb meets program conditions. The certification must show that, as of the time of certification, the lamb does not have parrot mouth, foot rot, or scrapie. Spot checks will be conducted and lambs found to have these conditions will be ineligible for payment. Other requirements apply, including holding the lamb for a specified period of time tied to the lambing cycle. Funding of the program is limited, and claims will accordingly be limited. A few comments indicated confusion with the information collection requirements of the program. These comments will be addressed in the Agency's submission of the information collection to the Office of Management and Budget (OMB) under the Paperwork Reduction Act.

This rule is issued in conformance with Executive Order 12866. This rule has been determined to be “Not Significant,” and was not reviewed by OMB.

The Regulatory Flexibility Act is not applicable to this rule because FSA is not required by 5 U.S.C. 533 or any other law to publish a notice of proposed rulemaking for the subject matter of this rule.

It has been determined by an environmental assessment (EA) that the actions of the Ewe Lamb Replacement and Retention Payment Program (ELRRPP) will have no significant impact on the quality of the human environment. Therefore, an Environmental Impact Statement is not necessary to address the potential impacts of this rule.

This rule has been reviewed in accordance with Executive Order 12988. This rule preempts State laws that are inconsistent with this rule. Before any legal action may be brought regarding determinations made under 7 CFR part 784, administrative appeal provisions set forth at 7 CFR parts 11 and 780 must be exhausted.

This program is not subject to the provisions of Executive Order 12372. See 48 FR 29115 (June 24, 1983) for the notice related to 7 CFR part 3014, subpart V.

This rule contains no Federal mandates for State, local, and tribal governments or the private sector under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA). Thus, this rule is not subject to the requirements of sections 202 and 205 of the UMRA.

The information collection required to support ELRRPP has been approved by OMB and assigned OMB control number 0560-0246.

This rule has no Federalism implications warranting a Federalism Assessment. This rule will not affect States, or their political subdivisions, or the distribution of power and responsibilities among levels of government.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to all Boeing Model 747 series airplanes was published in the Federal Register on May 7, 2004 (69 FR 25519). That notice of proposed rulemaking (NPRM) proposed to require repetitive inspections for cracking of the top and side panel webs and panel stiffeners of the nose wheel well (NWW), and corrective actions if necessary.

Since the issuance of the NPRM, Boeing has issued and we have reviewed Revision 2 of Boeing Alert Service Bulletin 747-53A2465, dated November 11, 2004 (the NPRM referred to Revision 1 of the service bulletin as the appropriate source of service information for accomplishing the proposed actions). Revision 2 of the service bulletin describes procedures for performing repetitive external detailed inspections for cracking of the top and side panel webs of the NWW (specified as Area 1 and Area 2 in the service bulletin), as applicable; performing repetitive internal detailed and surface high frequency eddy current (HFEC) inspections for cracking of the top and side panel stiffeners of the NWW (specified as Area 3 in the service bulletin); replacing cracked stiffeners with new stiffeners; and repairing any cracked panel web.

We have revised the final rule by adding new paragraph (a)(2) as an option to accomplishing the repetitive inspections required by paragraph (a)(1) (specified as paragraph (a) of the NPRM). The option allows operators to do the repetitive inspections specified in Revision 2 of the service bulletin. The compliance time intervals for the new, optional repetitive inspections are: (1) 1,000 flight cycles for the external detailed inspection, and (2) 6,000 flight cycles for the internal detailed and suface HFEC inspections, which is less stringent than the 1,000 flight-cycle interval for the repetitive inspections required by paragraph (a)(1) of this final rule.

We have also added Revision 2 of the service bulletin to paragraph (b) of the final rule to allow repairs to be done according to either Revision 1 or Revision 2 of the service bulletin, as applicable.

Accomplishing the actions specified in either Revision 1 or Revision 2 of the service bulletin at the times specified in the final rule is intended to adequately address the identified unsafe condition.

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

Two commenters request that the NPRM be revised or cancelled due to the upcoming release of Revision 2 of Boeing Alert Service Bulletin 747-53A2465. One commenter, the airplane manufacturer, notes that Revision 2 of the service bulletin will have different inspections and compliance times than what is specified in paragraph (a) of the NPRM. The commenter states that the procedures for ultrasonic inspection will be removed from the service bulletin and that the repetitive interval recommended for the detailed inspection of the NWW sidewall and top webs will be changed. The commenter notes that the detailed inspection will be performed every 1,000 flight cycles, starting at 16,000 total flight cycles, and then, after accumulating 25,000 flight cycles, the detailed inspection will be performed every 100 flight cycles for the web common to the fore-aft stiffeners at water lines (WL) 150, 160 and 170 (left and right sides). The commenter suggests that paragraph (a) of the NPRM be revised to reflect these changes.

The other commenter suggests that the NPRM be revised or cancelled because of the differences between the NPRM and Revision 2 of the service bulletin. The commenter also asks that a new proposal be issued that cites the changes specified in Revision 2 of the service bulletin.

We do not agree with the commenters' requests to revise or cancel the NPRM. Revision 2 of the service bulletin does not contain a 25,000 flight-cycle inspection threshold to reduce the repetitive inspection interval. In addition, as stated earlier, we have revised the final rule by adding the actions specified in Revision 2 of the service bulletin as an option to doing the actions specified in Revision 1 of the service bulletin.

One commenter requests that the second inspection threshold be extended from 25,000 flight cycles to 28,000 flight cycles for Model 747-400D series airplanes. The commenter states that the fatigue cracks are caused by cabin pressurization and Model 747-400D series airplanes operate with lower cabin differential pressure.

We do not agree with the commenter. We infer that the commenter is referring to Revision 2 of Boeing Alert Service Bulletin 747-53A2465, but as stated earlier, Revision 2 does not contain a second inspection threshold. No change is made to the final rule in this regard.

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

There are approximately 1,127 airplanes of the affected design in the worldwide fleet. We estimate that 255 airplanes of U.S. registry will be affected by this AD.

It will take approximately 42 work hours per airplane to accomplish the required inspections specified in Boeing Service Bulletin 747-53A2465, Revision 1, dated October 16, 2003, and that the average labor rate is $65 per work hour. Based on these figures, the cost impact of the required inspections on U.S. operators is estimated to be $2,730 per airplane, per inspection cycle.

In lieu of the inspections specified in Revision 1 of Boeing Service Bulletin 747-53A2465, it will take approximately 87 or 97 work hours per airplane (depending on the airplane configuration) to accomplish the required inspections specified in Boeing Alert Service Bulletin 747-53A2465, Revision 2, dated November 11, 2004, and that the average labor rate is $65 per work hour. Based on these figures, the cost impact of the required inspections on U.S. operators is estimated to be $5,655 or $6,305 per airplane, per inspection cycle (depending on the airplane configuration).

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, the FAA is charged with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this AD.

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

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

The DOD contracts for passenger and air cargo movements from air carriers certificated by the FAA. The DOD is congressionally mandated to conduct capability evaluations of contracted carriers. These evaluations ensure each carrier is able to satisfy the unique requirements of military contracts and to adhere to the DOD Commercial Air Carrier Quality and Safety Requirements. These evaluations apply only to carriers under contract with the DOD or carriers wanting to enter into contracts with the DOD.

DOD commercial air carrier evaluators require uninterrupted access to the flight deck to perform their reviews. For many years, DOD commercial air carrier evaluators relied on the FAA, the air carrier, and the pilot in command authorizing their access to conduct the air carrier evaluation mission. Language contained in 14 CFR parts 121 and 135 did not include DOD commercial air carrier evaluators among those individuals authorized access to the flight deck.

The absence of direct authority in the regulation listing and the lack of a well-known DOD evaluator credential significantly hindered the congressionally mandated DOD air carrier evaluations.

The amendments in the final rule make clear the authority of DOD commercial air carrier evaluators to conduct cockpit evaluations by including them in the regulation text. These changes, with the creation of the S&A Form 110B evaluator credential, have alleviated the problems DOD commercial air carrier evaluators have faced in the field.

The FAA received comments from a private citizen and a commercial air carrier. The content of the two letters was identical. These comments are addressed below.

The commenters stated that allowing cockpit access to the DOD evaluators was not “prudent or necessary” and the potential existed for DOD evaluators to abuse the process by wanting “free rides.”

FAA response: The FAA does not agree with the commenters. The DOD is required by law to conduct carrier evaluations including cockpit observations. The DOD coordinates these observations in advance with the air carrier. Flight crews are made aware of the presence of the DOD evaluator before the flight. Surprise evaluations are not part of this program and DOD evaluators must show proper documentation, including their S&A Form 110B credential and military orders, to gain access to the aircraft. Additionally, these evaluations only occur on air carriers participating, or applying to participate, in the DOD program. The process currently in place safeguards the security of the aircraft and does not allow for “free ride” abuse by the evaluators.

The FAA received comments regarding the possible falsification of the new credential being issued to DOD evaluators and the potential for increased costs to the air carrier by having to verify the evaluator's documentation.

FAA response: The FAA does not agree that the credential is easily falsified. The new credential issued to DOD air carrier evaluators has the same security features as the credentials carried by FAA inspectors and are difficult to falsify. In addition, DOD evaluators must present military orders with their S&A Form 110B credential. Verifying the credential and military order should not take any more time than in the past, and we expect the costs to be minimal. Again, these evaluations only occur on air carriers participating, or applying to participate, in the DOD program.

After consideration of the comments submitted in response to the final rule, the FAA has determined that no further rulemaking action is necessary. The final rule, “DOD Commercial Air Carrier Evaluators” remains in effect as adopted.

The Bureau of Industry and Security (BIS) is amending the Export Administration Regulations (EAR) by revising Export Control Classification Number (ECCN) 2B351 on the Commerce Control List (CCL) (Supplement No. 1 to Part 774 of the EAR) to conform with the Australia Group (AG) “Control List of Dual-Use Chemical Manufacturing Facilities and Equipment and Related Technology.” The AG is a multilateral forum, consisting of 38 participating countries, that maintains export controls on a list of chemicals, biological agents, and related equipment and technology that could be used in a chemical or biological weapons program. The AG periodically reviews items on its control list to enhance the effectiveness of participating governments' national controls and to achieve greater harmonization among these controls.

Specifically, this rule revises ECCN 2B351 by removing the Technical Note at the end of the entry. BIS is removing this Technical Note because it is not included in the AG “Control List of Dual-Use Chemical Manufacturing Facilities and Equipment and Related Technology” and its inclusion in ECCN 2B351 resulted in controls on certain toxic gas monitoring systems and devices not designed for the detection of chemical warfare agents or precursors. The wording of the Technical Note indicated that the toxic gas monitoring systems controlled under ECCN 2B351.a included systems (such as environmental air pollution detectors, anesthetic gas monitors for patients, and sulfur hexafluoride detectors) that have a detection capability for chemicals, which contain phosphorus, sulfur, fluorine or chlorine, but are not controlled under ECCN 1C350.

As a result of the removal of the Technical Note by this final rule, ECCN 2B351.a no longer controls toxic gas monitoring systems that have a detection capability for chemicals (other than chemical warfare agents), which contain phosphorus, sulfur, fluorine or chlorine, but are not controlled under ECCN 1C350. A license no longer is required, for chemical/biological (CB) reasons, to export or reexport such systems; however, such systems may require a license for reasons specified elsewhere in the EAR ( e.g. , the end-user/end-use restrictions described in Part 744 of the EAR or the restrictions described in Part 746 of the EAR that apply to embargoed countries). Systems designed for continuous operation that are capable of detecting chemical warfare agents or any of the chemicals controlled under ECCN 1C350 (including those containing phosphorus, sulfur, fluorine or chlorine), at concentrations of less than 0.3 mg/m 3 , continue to be controlled under ECCN 2B351.a and continue to require a license, for CB reasons, to destinations listed in Country Group D:3 (as specified in Supplement No. 1 to Part 740 of the EAR).

Although the Export Administration 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 Regulations in effect under the International Emergency Economic Powers Act .

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 of 1995 (44 U.S.C. 3501 et seq. ) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This rule contains a collection of information subject to the requirements of the PRA. This collection has been approved by OMB under Control Number 0694-0088 (Multi-Purpose Application), which carries a burden hour estimate of 58 minutes to prepare and submit form BIS-748. Send comments regarding this burden estimate or any other aspect of this collection 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 Regulatory Policy Division, Bureau of Industry and Security, Department of Commerce, P.O. Box 273, Washington, DC 20044.

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 (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 final 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.

Therefore, this regulation is issued in final form. Although there is no formal comment period, public comments on this regulation are welcome on a continuing basis.

In a notice published in the Federal Register of March 13, 2003 (68 FR 12087), FDA announced that a food additive petition (FAP 3M4745) had been filed by Ion Beam Applications (IBA), 6000 Poplar Ave., suite 426, Memphis, TN. Since the publication of this notice, IBA has been sold to PPM Ventures, which subsequently changed its name to Sterigenics International, Inc., 2015 Spring Rd., suite 650, Oak Brook, IL 60523. As a result, the rights to FAP 3M4745 have been transferred from IBA to Sterigenics International, Inc. The petition proposed that the food additive regulations in § 179.26 Ionizing radiation for the treatment of food (21 CFR 179.26) be amended by increasing the maximum permitted energy level of x rays for treating food to 7.5 MeV from the currently permitted maximum level of 5 MeV. Higher x ray energy will result in an increased concentration of x rays in the forward direction and increased penetration of these x rays in materials. This increased emission efficiency (i.e., concentration of x rays produced in the forward direction) will result in reduced treatment time for food, and therefore, higher production rates and lower treatment costs. The increased penetration of 7.5 MeV versus 5 MeV x rays will allow for the irradiation of larger packages.

A source of radiation used to treat food meets the definition of a food additive under section 201(s) of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 321(s)). Under section 409(c)(3)(A) of the act (21 U.S.C. 348(c)(3)(A)), a food additive cannot be approved for a particular use unless a fair evaluation of the data available to FDA establishes that the additive is safe for that use. FDA's food additive regulations in 21 CFR 170.3(i) define safe as “a reasonable certainty in the minds of competent scientists that the substance is not harmful under the intended conditions of use.”

The maximum energy limit of an x-ray machine is the maximum energy of the individual x-ray photons produced by that machine. When individual photons of x rays are absorbed by food, the absorbed energy causes atoms to be ionized until all the energy is converted into heat or chemical change. The amount of change in the food will depend on the total energy absorbed (i.e., dose). Because this petition seeks only to raise the maximum energy limit for x rays used for treating food, with no change in the maximum doses currently permitted by § 179.26, FDA concludes that the petition presents no new chemical issue, and that the only safety issue to be addressed is the potential for inducing radioactivity in the food.

Food, as well as other natural materials, displays low levels of naturally occurring radioactivity, such as that due to the presence of potassium-40 or carbon-14. To assess the safety of increasing the maximum energy of x rays to 7.5 MeV, the petitioner evaluated the potential for 7.5 MeV x rays to induce additional radioactivity in food. X rays with energies above an atom's threshold energy are capable of ejecting neutrons or protons from the nuclei of some atoms that have absorbed the x-ray energy. The threshold energy needed to cause the emission of a proton is higher than 7.5 MeV; therefore, the primary mechanism for inducing radioactivity in food by 7.5 MeV x rays will be from the loss of a neutron. This may in some cases result in the formation of radioactive nuclei. Radioactive nuclei are unstable and decay to a more stable form, spontaneously emitting particles and electromagnetic radiation in the form of gamma rays (i.e., high-energy photons). Often, this transition can occur very rapidly, such that an isotope produced in food from x rays will decay to a stable, nonradioactive state before leaving the irradiation facility. However, some radioactive isotopes could be sufficiently stable to be present in food when ingested. Radioactive atoms decay at a rate specific to their identity and, if taken into the body, could emit ionizing energy that would be absorbed in tissues in the body. Whether any emitted energy would increase the risk of harm to health depends on the amount and type of radiation absorbed by the body and the site of absorption.

Two reports in the petition provide the petitioner's primary basis that the petitioned use of 7.5 MeV x-ray radiation is safe. One report, from the International Atomic Energy Agency (IAEA), addresses natural and induced radioactivity in food treated with radiation, including high energy x rays (Ref. 1). The second report, by Gregoire et al., assesses the induced activities in fresh meat and in meat ash irradiated with high-energy x rays using evidence provided by theoretical calculations and experimental measurement (Ref. 2). As part of its review, FDA contracted with the Department of Energy, Oak Ridge National Laboratory (ORNL), for an independent evaluation of data in the petition (Ref. 3).

The IAEA report provides a compilation of available data on natural and induced radioactivity in food and investigates to what extent increases in absorbed dose in food or increased energy levels of radiation sources used to irradiate food could induce radioactivity in the food. One of the scenarios considered in the report was the potential for inducing radioactivity in food after being irradiated with 7.5 MeV x rays (using an x-ray target of tantalum or gold) to a dose of 30 kiloGray (kGy). 1 The report compared possible radiation exposure in humans from induced radioactivity in food to that from natural radioactivity in food. A reference food model was used for this analysis with an elemental composition similar to that of meat. 2 The report concluded that consuming 40 kilograms (kg) (88 pounds) per year of reference food with an absorbed dose of 30 kGy (a dose more than six times the maximum permitted dose level of 4.5 kGy permitted by FDA for refrigerated meat and meat products), would result in an estimated human radiation exposure of 1.3 x 10 -3 millisieverts/year (yr) (mSv/yr) (a dose 300 times less than the yearly dose due to natural radioactivity from food) (Ref. 1). The calculation assumed that the food would be eaten immediately after being irradiated. However, the radioisotopes with the greatest probability of being produced decay quite rapidly. Therefore, because of radioactive decay, any radioactivity in the treated food, which would normally be consumed more than 24 hours after treatment, would actually be significantly less at the time of consumption.

The report by Gregoire et al. provided theoretical estimates and experimental results of the radiological implications of irradiating meat with higher energy x rays. Induced activities in meat irradiated at 15 kGy with 7.5 MeV x rays and a resultant human exposure to radiation were calculated. Based on the most abundant isotopes produced in meat by neutron capture reactions at thresholds below 7.5 MeV, and assuming a person consumes 40 kg of meat per year and a 24-hour delay between irradiation and consumption, the corresponding dose to humans was calculated to be 0.2 x 10 -3 mSv/yr.

Theoretical estimates of induced activity can be more reliable than direct measurements, especially for low levels of activity. However, to check the validity of the theoretical estimates, Gregoire et al. compared their predictions with experimental data. Experimental results from a 1991 study by Wakeford and Blackburn were discussed. This study investigated the irradiation of codfish, rice, and a macerated meat product with x rays produced by an electron linear accelerator that generated electrons at energies up to 12 MeV and predominately at 8 MeV (Ref. 4). These foods received radiation doses ranging from 8.8 to 14 kGy. Induced activities in the foods were reported to be approximately the same as natural background levels, and dropped quickly. The report also summarized the results from another study in which induced activities in fresh meat and in meat ash were measured after being irradiated with x rays generated at 7.3 MeV and 8.1 MeV at doses of 15 kGy and 8.6 kGy, respectively. Based on the measured activity from the two experiments and assuming a consumption of 40 kg/y of irradiated meat and a 24-hour delay time between irradiation and consumption, the total annual dose from meat due to treatment with higher energy x rays was determined to be 0.24 to 0.29 x 10 -3 mSv/yr, a dose about 1,500 times lower than the 0.39 mSv received per year from consumption of food due to naturally occurring radionuclides (Ref. 3). Because most meat would be consumed more than 24 hours after treatment, the annual dose from the irradiated meat would be far less than the dose indicated from these experiments.

ORNL evaluated the information in the IAEA report. ORNL estimated induced activities in beef irradiated to 15 kGy with 7.5 MeV x rays and the resultant dose from consumption of the treated food (Ref. 3). ORNL used the elemental composition of beef for their analysis because its composition is similar both to that of the reference food used in the IAEA report and to food in general. From this information, ORNL determined induced radioactivity in beef and used this to estimate a potential radiation dose to humans from consumption of the food. The annual effective dose based on consumption of 40 kg/yr of beef was calculated to be 0.4 x 10 -3 mSv, which is approximately 1,000 times less than the annual effective dose from consumption of foods due to naturally occurring radioactivity, and is consistent with the results from both the IAEA report and the Gregoire et al. report. In addition to beef, ORNL also calculated the effective annual dose from consumption of pork, poultry, and eggs treated with 7.5 MeV x rays and an absorbed dose of 15 kGy, ORNL determined that based on the average quantity of beef, pork, poultry, and eggs consumed in a year, the total effective annual human exposure from consumption of these irradiated foods would be 1.0 x 10 -3 mSv/yr, which is about 400 times less than the 0.39 mSv/yr that people receive due to natural radioactivity in food. It is also important to note that this estimated exposure is highly conservative because it assumes the following: (1) That all of the beef, pork, poultry, and eggs that a person consumes in a year has been irradiated, (2) that these foods are consumed within 24 hours after irradiation, and, (3) that such foods would be treated with an average dose of 15 kGy, which is significantly higher than both the currently maximum permitted dose for these foods as well as doses that would be practical to apply to foods in commerce.

The results discussed previously considered potential radiation exposure for humans from consumption of various foods irradiated with high energy x rays. Although foods other than those that were studied may be irradiated with 7.5 MeV x rays, the compositions of the foods that were considered are representative of foods in general. Even at absorbed doses that are higher than those normally used in practice, the results clearly show that any radioactivity that may be induced in any food treated with 7.5 MeV x rays will be trivially low and that any potential human exposure due to consumption of irradiated food will be inconsequential compared to that from radionuclides that are present naturally in food.

Neutrons emitted from the x-ray target in the x-ray generator can also enter food and induce radioactivity. Therefore, FDA considered whether there is a need to specify or limit the x-ray target material to minimize neutron production from this source. Materials with photoneutron threshold energies below 7.5 MeV can produce photoneutrons, which could also be captured in the foods being irradiated. The petitioner has proposed the use of tantalum and gold as x-ray target materials. The x-ray energy levels needed to eject a neutron from the two common isotopes of tantalum (Ta-180 and Ta-181) are 6.6 and 7.6 MeV, respectively, but the neutron production from 7.5 MeV x rays is insignificant, and considerably less than from tungsten, a common x-ray target material (Refs. 1 and 3). Gold also does not produce significant numbers of neutrons when impinged with 7.5 MeV x rays (Ref. 1). Therefore, FDA concludes that tantalum and gold are acceptable x-ray target materials for the proposed use and is specifying these two x-ray target materials as a condition of safe use for machine sources of 7.5 MeV x rays.

FDA has evaluated the data submitted in the petition and other relevant material and concludes that any added radioactivity in food from the use of 7.5 MeV x rays will be trivial compared to that from radionuclides that are present naturally in food. Therefore, the agency concludes that the proposed use of 7.5 MeV x rays for treating food is safe and that the conditions listed in § 179.26 should be amended as set forth in this document.

In accordance with § 171.1(h) (21 CFR 171.1(h)), the petition and the documents that FDA considered and relied upon in reaching the agency's decision to approve the petition are available for inspection at the Center for Food Safety and Applied Nutrition by appointment with the information contact person (see FOR FURTHER INFORMATION CONTACT ). As provided in § 171.1(h), the agency will delete from the documents any materials that are not available for public disclosure before making the documents available for inspection.

The agency has previously considered the environmental effects of this rule as announced in the notice of filing for FAP 3M4745 (68 FR 12087). No new information or comments have been received that would affect the agency's previous determination that there is no significant impact on the human environment and that an environmental impact statement is not required.

This final rule contains no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.

Any person who will be adversely affected by this regulation may file with the Division of Dockets Management (see ADDRESSES ) written or electronic objections by (see DATES ). Each objection shall be separately numbered, and each numbered objection shall specify with particularity the provisions of the regulation to which objection is made and the grounds for the objection. Each numbered objection on which a hearing is requested shall specifically so state. Failure to request a hearing for any particular objection shall constitute a waiver of the right to a hearing on that objection. Each numbered objection for which a hearing is requested shall include a detailed description and analysis of the specific factual information intended to be presented in support of the objection in the event that a hearing is held. Failure to include such a description and analysis for any particular objection shall constitute a waiver of the right to a hearing on the objection. Three copies of all documents are to be submitted and are to be identified with the docket number found in brackets in the heading of this document. Any objections received in response to the regulation may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.

The following references have been placed on display in the Division of Dockets Management (see ADDRESSES ) and may be seen by interested persons between 9 a.m. and 4 p.m., Monday through Friday.

1. International Atomic Energy Agency, “Natural and Induced Radioactivity in Food,” IAEA-TECDOC-1287, Food and Environmental Protection Section, IAEA, Vienna, 2002.

2. Gregoire, O., Cleland, M. L., Wakeford, Mittendorfer, et al., “Radiological Safety of Food Irradiation With High Energy X-Rays: Theoretical Expectations and Experimental Evidence,” 2002.

3. Easterly, C. E., Eckerman, K. F., Ross, R. H., et al., “Assessment of Petition to Increase the Maximum X-Ray Energy to 7.5 MeV from the Value of 5.0 MeV for the Treatment of Food by Ionizing Radiation,” ORNL-2003-1, Oak Ridge National Laboratory, Life Sciences Division, 2003.

4. Wakeford, C. A., Blackburn R., and Swallow, A. J., “Induction and Detection of Radioactivity in Foodstuffs Irradiated With 10 MeV Electrons and X-Rays,” Radiation Physics and Chemistry, vol. 38, No. 1, pp. 29-38, 1991.

(a) * * *

(3) X rays generated from machine sources at energies not to exceed 5 million electron volts (MeV), except as permitted by paragraph (a)(4) of this section.

(4) X rays generated from machine sources using tantalum or gold as the target material and using energies not to exceed 7.5 (MeV).

FinCEN is publishing this interpretation to clarify that the filing of required blocking reports with OFAC on transactions involving an individual or entity designated as a Specially Designated Global Terrorist, Specially Designated Terrorist, Foreign Terrorist Organization, Specially Designated Narcotics Trafficker Kingpin, or Specially Designated Narcotics Trafficker shall be deemed to satisfy the requirement, under existing and any forthcoming suspicious activity reporting regulations, that financial institutions file suspicious activity reports based on the fact of such a match.

NARA published a final rule on December 15, 2004, at 69 FR 74976. The second sentence in the Supplementary Information contains an error. This correction inserts the missing word.

In the final rule published at 69 FR 74976, make the following correction. On page 74977, in the first column, insert the word “not” in line 6 so that the line reads “* * * Executive Order 12866 and has not been * * *”.

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This section provides additional information by addressing the following questions:

This action applies to large stationary sources of NO X (such as electric generating units that produce electricity for sale, other large boilers that produce steam and/or electricity but do not sell electricity, and cement kilns) in the southern counties (Allegan, Barry, Bay, Berrien, Branch, Calhoun, Cass, Clinton, Eaton, Genesee, Gratiot, Hillsdale, Ingham, Ionia, Isabella, Jackson, Kalamazoo, Kent, Lapeer, Lenawee, Livingston, Macomb, Mecosta, Midland, Monroe, Montcalm, Muskegon, Newaygo, Oakland, Oceana, Ottawa, Saginaw, Saint Clair, Saint Joseph, Sanilac, Shiawassee, Tuscola, Van Buren, Washtenaw, Wayne) of Michigan. This action also applies to the unit at DTE Energy's Harbor Beach facility in Huron County.

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

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

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

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

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

(d) Describe any assumptions and provide any technical information and/or data that you used.

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

(f) Provide specific examples to illustrate your concerns, and suggest alternatives.

Section 110 of the Clean Air Act (CAA) requires states to develop air pollution regulations and control strategies to ensure that state air quality meets the national ambient air quality standards established by EPA. These ambient standards are established under section 109 of the CAA, and they currently address six criteria pollutants. These pollutants are: carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide. Each state must submit these regulations and control strategies to us for approval and incorporation into the federally-enforceable SIP. Each federally-approved SIP protects air quality primarily by addressing air pollution at its point of origin. These SIPs can be extensive and contain state regulations or other enforceable documents, as well as supporting elements such as emission inventories, monitoring networks, and modeling demonstrations.

For state regulations to be incorporated into the federally-enforceable SIP, states must formally adopt the regulations and control strategies consistent with state and federal requirements. This process generally includes a public notice, public hearing, public comment period, and a formal adoption by a state-authorized rulemaking body. Once a state rule, regulation, or control strategy is adopted, the state submits it to us for inclusion into the SIP. We must provide public notice and seek additional public comment regarding the federal action on the state submission. If adverse comments are received, they must be addressed prior to any final federal action. All state regulations and supporting information approved by EPA under section 110 of the CAA are incorporated into the federally-approved SIP. EPA has codified its actions on state SIP submittals in the Code of Federal Regulations (CFR) at Title 40, part 52, entitled “Approval and Promulgation of Implementation Plans.” The actual state regulations which are approved are not reproduced in their entirety in the CFR, but are “incorporated by reference,” which means that we have approved a given state regulation with a specific effective date.

On October 27, 1998, EPA published a final rule entitled, “Finding of Significant Contribution and Rulemaking for Certain States in the Ozone Transport Assessment Group Region for Purposes of Reducing Regional Transport of Ozone,” otherwise known as the “NO X SIP Call.” See 63 FR 57356 (October 27, 1998). The NO X SIP Call requires 22 states and the District of Columbia to meet NO X emission budgets during the five month period from May 1 through September 30 in order to reduce the amount of ground level ozone that is transported across the eastern United States. EPA discussed the history of the SIP Call extensively as part of the conditional approval of Michigan's NO X trading program (see 69 FR 8905).

On April 3, 2003, MDEQ submitted to EPA for approval a SIP to address the Phase I NO X SIP Call requirements. While the rules submitted by MDEQ generally met the requirements for approval, we identified a number of deficiencies preventing full approval of the NO X SIP at that time. EPA published a proposed conditional approval of Michigan's submittal on February 26, 2004 (69 FR 8905), and finalized the conditional approval on April 16, 2004 (69 FR 20548). EPA required that MDEQ address these deficiencies and submit revised approvable regulations by May 31, 2004, or the conditional approval would automatically convert to a disapproval.

In the review of Michigan's April 3, 2003 NO X SIP submittal, EPA identified six deficiencies that MDEQ had to correct before EPA could fully approve Michigan's submittal. EPA communicated these deficiencies to MDEQ, and, in most cases, EPA suggested language that Michigan could adopt to address each concern. On May 27, 2004, MDEQ submitted revised regulations to address the deficiencies.

Following is a list of the identified deficiencies and a description of how MDEQ addressed them:

1. Deficiency: Rule 802(5) states, “An oxides of nitrogen budget unit that is subject to a rule promulgated under section 126 of the Clean Air Act shall not be subject to this rule until the section 126 requirements no longer apply.” Under this language, those oxides of nitrogen budget units that are subject to the Section 126 Rule and that would be subject to controls under the Michigan SIP are not covered by the SIP. The Section 126 Rule remains in place and will remain effective until EPA approves the Michigan SIP. The EPA cannot approve the Michigan SIP, and move forward to remove the Section 126 requirements, unless the SIP has in place regulations to achieve the necessary emissions reductions to meet the Phase I budget. In evaluating the SIP, EPA cannot take into consideration the emissions reductions required by the Section 126 Rule. Because the Section 126 Rule would still be in place at the time EPA takes action on the Michigan SIP, oxides of nitrogen budget units that would otherwise be subject to controls under the Michigan SIP would not be covered at that time. Therefore, the SIP would not be providing sufficient emissions reductions to meet the Phase I budget and would not be approvable. This language must be removed from the State's rules. EPA will then take action to ensure that no unit is subject to both trading programs.

Correction: MDEQ has removed this language.

2. Deficiency: The applicability of these rules is based on named counties in the southern portion of Michigan. While this applicability is sufficient to meet the requirements found in the SIP Call, it is not enough to remove all of the Section 126 requirements from the State. This is because there is one source, DTE's Harbor Beach unit, that is affected by Section 126 requirements, but is not in one of the counties affected by Michigan's NO X SIP call rule. Michigan has indicated a desire to include the Harbor Beach unit in the trading program in order to satisfy the Section 126 requirements for this source. To address this situation and enable EPA to remove all of the Section 126 requirements from Michigan after the Michigan NO X SIP has been approved, MDEQ must extend the applicability of the Michigan NO X SIP to that one source.

Correction: The applicability section of this rule now includes the unit at DTE's Harbor Beach facility in Huron County.

3. Deficiency: Twenty-five ton exemption—States may develop alternative 25-ton NO X exemptions to the one included in the model rule provided they are based on permit restrictions that limit a unit's potential to emit during an ozone season to 25 tons or less and are not inconsistent with 40 CFR part 75 monitoring requirements. Michigan's regulation, Part 8. Emissions Limitations and Prohibitions—Oxides of Nitrogen, includes in Rule 802(2) the 25-ton exemption. The rule language is based on the model rule but provides additional options for qualifying for the exemption that involve emission monitoring or testing that is inconsistent with Part 75.

In addition, when a unit receives a 25-ton exemption, the unit's potential emissions (reflected as an equivalent number of allowances) must be removed from the trading budget to avoid double counting. An exempt unit's emissions are included in the state's large Electric Generating Unit (EGU) or large non-EGU emissions budget and therefore as allowances in the state's trading budget. EPA is concerned that Michigan's rule does not account for potential emissions from the exempt units. Neither the rule nor the SIP submittal specifies a procedure for removing from the trading budget the allowances reflecting the exempt unit's potential emissions. To address the deficiencies related to the 25 ton exemption provisions including the related budget adjustments, Michigan must modify its regulations to ensure an exempt source's emissions are less than 25 tons in each ozone season and provide a process for adjusting the trading budget accordingly. EPA provided MDEQ suggested language modifying the regulations.

Correction: Language has been added to require monitoring in accordance with 40 CFR part 75, subpart H. Also, MDEQ has adopted the language suggested by EPA to address EPA's other concerns.

4. Deficiency: New source set-aside—The new source set-aside provisions of section 811(1)(a) specify the set-aside pool allocation. The rule contains a typographical error regarding the number of allowances to be set-aside after 2006. A footnote in the Michigan SIP submittal highlights this error and indicates the correct number. This error should be corrected since the official regulations are the basis for all allocations.

Also, section 811(2) appears to address the issue of adjusting a new source's allowances to account for reduced utilization, but is incomplete and, for example, lacks the adjustment formula. This section also appears to specify how remaining set-aside allowances are determined, but that matter is also addressed in section 811(3). Michigan must clarify these provisions. EPA provided MDEQ suggested language to clarify these provisions.

Correction: The typographical error has been corrected and MDEQ has adopted the language suggested by EPA to address EPA's other concerns.

5. Deficiency: Language in section 802(1)(a) appears to allow the State to exempt an EGU for which applicability has not been determined. EPA cannot approve any exemption that is solely at the discretion of the State and does not include EPA approval as well. The language relating to exemptions based solely on the State's discretion must be removed as a condition of final approval.

Correction: This language has been removed in the version submitted by MDEQ for approval.

6. Deficiency: Language in section 804 relating to retired unit exemptions must be modified to include the requirement that a unit that qualifies for this exemption, is not required to have a permit, and subsequently resumes operation will lose the exemption at the time of resumption of operation. EPA provided MDEQ suggested language modifying this section of the regulations.

Correction: The “loss of exemption” language suggested by EPA has been adopted and submitted by MDEQ.

On April 3, 2003, MDEQ submitted a final revision to its SIP to meet the requirements of the Phase I NO X SIP Call. EPA found that the initial submittal generally complied with section 110 of the Act and the Phase I NO X SIP Call but that it had several minor deficiencies. Therefore, EPA conditionally approved the submittal. On May 27, 2004, MDEQ submitted another SIP revision that addressed all of the issues raised in EPA's April 16, 2004 conditional approval.

Public hearings were held on December 3, 2001 and January 22, 2003 for the April 3, 2003 submittal. A public hearing was held on March 11, 2004 for the May 27, 2004 submittal. MDEQ holds public hearings on rules at the end of a 30-day public comment period. MDEQ either modified its rules to accommodate the comments received or explained why the rules were not changed in light of the comments.

Michigan allows, as in the model rule, EGUs and non-EGUs to participate in the multi-state cap and trade program. Cement kilns are not included in the trading program, but will be required to install low NO X burners, mid-kiln firing system or technology that achieves the same emission decreases (a 30% reduction). Michigan's SIP revision to meet the requirements of the NO X SIP Call consists of the revision of Michigan Rules 802 through 817. The regulations 802 through 816 affect EGUs and non-EGUs. Rule 817 applies requirements to cement manufacturing facilities.

Michigan's SIP revision to meet the requirements of the NO X SIP Call consists of the following Michigan Rules:

• 802 Applicability under oxides of nitrogen budget trading program

• 803 Definitions for oxides of nitrogen budget trading program

• 804 Retired unit exemption from oxides of nitrogen budget trading program

• 805 Standard requirements of oxides of nitrogen budget trading program

• 806 Computation of time under oxides of nitrogen budget trading program

• 807 Authorized account representative under oxides of nitrogen budget trading program

• 808 Permit requirements under oxides of nitrogen budget trading program

• 809 Compliance certification under oxides of nitrogen budget trading program

• 810 Allowance allocations under oxides of nitrogen budget trading program

• 811 New source set-aside under oxides of nitrogen budget trading program

• 812 Allowance tracking system and transfers under oxides of nitrogen budget trading program

• 813 Monitoring and reporting requirements under oxides of nitrogen budget trading program

• 814 Individual opt-ins under oxides of nitrogen budget trading program

• 815 Allowance banking under oxides of nitrogen budget trading program

• 816 Compliance supplement pool under oxides of nitrogen budget trading program

• 817 Emission limitations and restrictions for Portland cement kilns

Michigan's Oxides of Nitrogen Budget Trading Program (Rules 802 through 816) establishes and requires participation in a NO X allowance trading program for large EGUs and non-EGUs. These rules establish a NO X cap and allowance trading program for the ozone control seasons beginning May 31, 2004. Michigan Rule 817, not part of the trading program, applies to cement kilns and also requires control during the ozone season starting on May 31, 2004. Beginning in 2005, the ozone control period is May 1 through September 30.

The State of Michigan chose to follow EPA's model NO X budget and allowance trading rule, 40 CFR part 96, that sets forth a NO X emissions trading program for EGUs and non-EGUs. Michigan's Oxides of Nitrogen Budget Trading Program is based upon EPA's model rule, therefore, Michigan sources are allowed to participate in the interstate NO X allowance trading program that EPA is administering for the participating states. Under Rule 810, Michigan allocates NO X allowances to the EGU and non-EGU units that are affected by these requirements. The NO X trading program applies to EGUs (fossil fuel fired boilers and turbines serving a generator with a nameplate capacity greater than 25 MW that sell any amount of electricity) as well as non-EGUs (fossil fuel fired industrial boilers and turbines that have a maximum design heat input greater than 250 mmBtu per hour). Each NO X allowance permits a source to emit one ton of NO X during the seasonal control period. NO X allowances may be bought or sold. Unused NO X allowances may also be banked for future use, with certain limitations.

Source owners will monitor and report their NO X emissions by using methodologies that meet the requirements of 40 CFR part 75, subpart H, and report resulting data to EPA electronically. Each budget source complies with the program by demonstrating at the end of each control period that actual emissions do not exceed the amount of allowances held for that period. However, regardless of the number of allowances a source holds, it cannot emit at levels that would violate other federal or State limits, for example, reasonably available control technology (RACT), new source performance standards, or Title IV (the Federal Acid Rain program).

Michigan's Oxides of Nitrogen Budget Trading Program establishes requirements for cement manufacturing facilities. These sources are subject to NO X reduction requirements but do not participate in the NO X trading program. Michigan's submittal does not rely on any additional reductions beyond the anticipated federal measures in the mobile and area source categories.

Michigan's submittal demonstrates that the Phase I NO X emission budgets established by EPA will be met because MDEQ agrees with all of the assumptions, projections, etc. used by EPA to determine the 2007 budgets. Because Michigan has adopted all of the same controls assumed by EPA in developing the State's NO X budget, the actual emissions in 2007 should be the same as those EPA has projected to be the State's 2007 budget.

To provide additional flexibility for complying with emission control requirements associated with the NO X SIP Call, the final NO X SIP Call rule provided each affected state with a “compliance supplement pool.” The compliance supplement pool is a quantity of NO X allowances that may be used to cover excess emissions from sources that are unable otherwise to meet control requirements during the 2004 and 2005 ozone season. Allowances from the compliance supplement pool will not be valid for compliance past the 2005 ozone season. The NO X SIP Call included these voluntary provisions in order to address commenters' concerns about the possible adverse effect that the control requirements might have on the reliability of the electricity supply or on other industries required to install controls as the result of a state's response to the NO X SIP Call.

A state may issue some or all of the compliance supplement pool via two mechanisms. First, a state may issue some or all of the pool to sources with credits from implementing NO X reductions beyond all applicable requirements after September 30, 1999, but before May 31, 2004 ( i.e. , early reductions). This allows sources that cannot install controls prior to May 31, 2004, to purchase other sources' allowances reflecting early reduction credits in order to comply. Second, a state may issue some or all of the pool to sources that demonstrate a need for an extension of the May 31, 2004 compliance deadline due to undue risk to the electricity supply or other industrial sectors, and where allowances reflecting early reductions are not available (See 40 CFR 51.121(e)(3)). Michigan has opted to issue the State's compliance supplement pool through the Early Reduction Credit program only.

All of the existing sources in the SIP Call area that are subject to EPA's Section 126 Rule are also subject to Michigan's NO X rules.

EPA is fully approving the NO X SIP submitted on April 3, 2003 as modified on May 27, 2004. EPA finds that Michigan's submittals are fully approvable because the initial April 3, 2003 submittal was conditionally approved and the conditions for full approvability were met in the May 27, 2004 submittal. In combination, these two submittals meet the requirements of the Phase I NO X SIP Call.

We are approving: Michigan's revision of the ozone SIP that responds to EPA's Phase I NO X SIP Call. This revision consists of Michigan Air Pollution Control Rules 803, 805-810, and 812-817 as submitted on April 3, 2003 and Michigan Air Pollution Control Rules 802, 804 and 811 as submitted May 27, 2004. A combined package of these rules 802-817 as submitted on April 3, 2003 and May 27, 2004 was submitted as a supplement to the May 27, 2004 submittal for ease of incorporation by reference. This supplemental submittal was sent by MDEQ to EPA on August 5, 2004.

By this action, we are also vacating our April 16, 2004 (69 FR 20548) conditional approval of Michigan's earlier NO X SIP submittal.

The EPA is publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the state plan if relevant adverse comments are filed. This rule will be effective February 22, 2005 without further notice unless we receive relevant adverse written comments by January 24, 2005. If we receive such comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will then be addressed in a subsequent final rule based on the proposed action. The EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. If we do not receive any comments, this action will be effective February 22, 2005.

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.

Because this action does not significantly affect energy supply, distribution or use, it is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001).

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

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

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

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

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 CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 22, 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).)

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

On October 27, 2004 (69 FR 62589), we published a final rulemaking action announcing approval of a revision to the Maryland State Implementation Plan (SIP) pertaining to control of volatile organic compounds (VOC) emissions from yeast manufacturing operations (COMAR 26.11.19.17). In our approval action, EPA incorporated by reference (IBR'd) the State rule and codified this IBR action at § 52.1070(c)(189).The effective date of the action is December 27, 2004. Subsequently, on November 29, 2004 (69 FR 69304), we published an administrative rulemaking action announcing format revisions to the Identification of plan section in 40 CFR part 52, subpart V (Maryland), as well as changes to the format for materials which are incorporated by reference (IBR). This administrative rulemaking action both recodified the existing § 52.1070 as § 52.1100 entitled “Original Identification of plan section,” and created a new § 52.1070 entitled “Identification of plan.” We are revising the entry for COMAR 26.11.19.17 in § 52.1070(c), effective December 27, 2004, so that it reflects EPA's October 27, 2004 approval action of the revised COMAR 26.11.19.17.

In rule document 04-23948 published in the Federal Register on October 27, 2004 (69 FR 62589), on page 62591 in the second column, Amendatory Instruction Number 2 is withdrawn.

Section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. We have determined that there is good cause for making today's rule final without prior proposal and opportunity for comment because we are merely correcting an incorrect citation in a previous action. Thus, notice and public procedure are unnecessary. We find that this constitutes good cause under 5 U.S.C. 553(b)(B).

Under Executive Order (E.O.) 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore not subject to review by the Office of Management and Budget. 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)). Because the agency has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the Administrative Procedures Act or any other statute as indicated in the Supplementary Information section above, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C 601 et seq ), or to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of UMRA. This rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it 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 governments, as specified by Executive Order 13132 (64 FR 43255, August 10, 1999). This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

This technical correction action does not involve technical standards; 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. The rule also does not involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994). In issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct, as required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996). EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1998) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under 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 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary or contrary to the public interest. This determination must be supported by a brief statement. 5 U.S.C. 808(2). As stated previously, EPA had made such a good cause finding, including the reasons therefore, and established an effective date of December 27, 2004. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This correction to 40 CFR 52.52.1070(c) for Maryland is not a “major rule” as defined by 5 U.S.C. 804(2).

On April 16, 2004, the District of Columbia (the District) submitted several revisions to its SIP. The SIP revisions include both new regulations and amendments to Title 20 of the District of Columbia Municipal Regulations (20 DCMR). The new regulations in Title 20 DCMR (Environment), Subtitle A: Air Quality, Chapter 7, Volatile Organic Compounds are:

(1) New Section 718—“Mobile Equipment Repair and Refinishing”.

(2) New Sections 719 through 734—“Consumer Products”.

(3) New Sections 735 through 741—“Portable Fuel Containers and Spouts”.

(4) New Sections 742 through 748—“Solvent Cleaning”.

(5) New Sections 749 through 754—“Architectural and Industrial Maintenance Coating”.

The April 16, 2004 submittal also includes new definitions that were added in section 799, a new section 307 to Chapter 3—to provide for a fee penalty pursuant to section 185 of the Act, and amendments to Chapters 1, 2, 6, 7, and 8 to satisfy the Act's requirements for severe ozone nonattainment areas pursuant to the Metropolitan Washington DC 1-hour ozone nonattainment area's reclassification on January 24, 2003, from serious to severe nonattainment.

On September 20, 2004, the District supplemented its April 16, 2004 submittal. This supplemental submittal provides copies of standards that are incorporated by reference in the District's new and amended regulations and a copy of the District's responses to comments it received during its rule adoption process. On November 26, 2004, the District submitted another supplemental revision to its April 16, 2004 submittal. This supplemental submittal consists of revised versions of the new VOC regulations. These are minor revisions to the regulations which clarify the standards that are incorporated by reference and correct cross-referencing and typographical errors.

This action pertains only to the addition of section 718, Mobile Equipment Repair and Refinishing, and revised section 799, containing the associated definitions for the Mobile Equipment Repair and Refinishing regulation. The remaining portions of the April 16, 2004 submittal and the supplemental submittals of September 20, 2004 and November 26, 2004, are the subject of separate rulemaking actions.

As stated previously, this approval pertains only to the District's regulations for mobile equipment repair and refinishing. The standards and requirements contained in the District's regulations for mobile equipment repair and refinishing are based on the Ozone Transport Commission (OTC). The OTC developed control measures into model rules for a number of source categories. The OTC mobile equipment repair and refinishing model rule is based on the existing rules developed by the California Air Resources Board, which were analyzed and modified by the OTC workgroup to address VOC reduction needs in the Ozone Transport Region (OTR).

On April 16, 2004, the District of Columbia Department of Health submitted a formal revision to its SIP. The SIP revision consists of VOC emission standards for mobile equipment repair and refinishing operations in the District of Columbia. The District of Columbia mobile equipment repair and refinishing rule (section 718) applies to each person who sells, supplies, offers for sale, manufactures or applies repair and refinishing or color-matched coatings for or to mobile equipment or mobile equipment components on or after January 1, 2005 in the District of Columbia. The rule does not apply to the following: (a) where the surface coating process is subject to other federal requirements including, but not limited to, miscellaneous metal parts finishing requirements relating to surface coating processes; (b) where the surface coating process is at an automobile assembly plant; or (c) where the person applying the coatings is in a non-commercial facility and does not receive compensation for the application of the coatings. The rule mandates that repair and refinishing coatings that contain volatile organic compounds (VOCs) in excess of the limits specified below in Table 1, including any VOC containing materials added to the original coating supplied by the manufacturer, shall not be applied to mobile equipment or mobile equipment components.

The regulation also requires that any person who sells, supplies, offers for sale, or manufactures mobile equipment repair and refinishing coatings subject to this section, to provide documentation with the product concerning the VOC content of the coatings, in pounds per gallon, calculated in accordance with the equations provided in this regulation.

A person at a facility subject to the provisions of this regulation must use one or more of the following application techniques to apply any repair and refinishing coatings listed in Table 1: (a) Flow/curtain coating, (b) dip coating, (c) roller coating, (d) brush coating, (e) cotton-tipped swab application, (f) electrodeposition coating, (g) high volume low pressure (HVLP) spraying, (h) electrostatic spray, (i) airless spray, or ((j) other coating application methods that demonstrate emission reductions equivalent to HVLP or electrostatic spray application methods.

The regulation also provides exemptions from the application equipment requirements for spray guns, and housekeeping and pollution prevention and training measures. The District of Columbia's regulation to control emissions from mobile equipment repair and refinishing operations includes requirements sufficient to determine compliance. The test methods used to test coatings must be the most current approved method at the time testing is performed. Compliance with the rule will be required by January 1, 2005.

EPA is approving a revision to the District of Columbia SIP which establishes VOC emission standards from mobile equipment repair and refinishing operations. The implementation of this rule strengthens the District of Columbia SIP, and will result in the reduction of VOC emissions from mobile equipment repair and refinishing operations in the District of Columbia. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register , EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on February 22, 2005. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001). This action merely proposes to approve 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 proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 22, 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, pertaining to the District of Columbia's Mobile Equipment Repair and Refinishing rule, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Regulated Entities. The regulated category and entities affected by this action include:

This table is not intended to be exhaustive, but rather provides a guide for readers likely to be interested in the revisions to the regulation affected by this action. To determine whether your facility, company, business, organization, etc., is regulated by this action, you should carefully examine all of the applicability criteria in 40 CFR 63.100. If you have questions regarding the applicability of the amendments to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

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

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

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

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

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

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

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

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

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

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

Public Hearing. Persons interested in presenting oral testimony or inquiring as to whether a hearing is to be held should contact Mr. Randy McDonald, Organic Chemicals Group, Emission Standards Division (Mail Code C504-04), U.S. EPA, Research Triangle Park, North Carolina 27711, telephone number (919) 541-5402, electronic mail address mcdonald.randy@epa.gov., at least 2 days in advance of the potential date of the public hearing. Persons interested in attending the public hearing must also call Mr. Randy McDonald to verify the time, date, and location of the hearing. The public hearing will provide interested parties the opportunity to present data, views, or arguments concerning these proposed emission standards.

Comments. We are publishing the direct final rule without prior proposal because we view it as noncontroversial and do not anticipate 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 in the event that adverse comments are filed. If we receive any adverse comments on a specific element of the direct final rule, we will publish a timely withdrawal in the Federal Register informing the public which amendments will become effective and which amendments are being withdrawn due to adverse comment. We will address all public comments in a subsequent final rule based on the proposed rule amendments. Any of the distinct amendments in the direct final rule for which we do not receive adverse comment will become effective on the date set out above. We will not institute a second comment period on the direct final rule. Any parties interested in commenting must do so at this time.

World Wide Web (WWW). In addition to being available in the docket, electronic copies of today's action will be posted on the Technology Transfer Network's (TTN) policy and guidance information page http://www.epa.gov/ttn/caaa. The TTN provides information and technology exchange in various areas of air pollution control. If more information regarding the TTN is needed, call the TTN HELP line at (919) 541-5384.

Judicial Review. Under section 307(b)(1) of the CAA, judicial review of the direct final rule is available only by filing a petition for review in the U.S. Court of Appeals for the District of Columbia by February 22, 2005. Under section 307(d)(7)(B) of the CAA, only an objection to the direct final rule that was raised with reasonable specificity during the period for public comment can be raised during judicial review.

Outline. The information presented in this preamble is organized as follows:

We are publishing the amendments without prior proposal because we view the changes as noncontroversial and anticipate no adverse comment. The final rule amendments to the HON increase flexibility by adding a new compliance option. The final rule amendments do not alter the stringency of the standards, have no adverse health or environmental impacts, and will not increase costs. The compliance option of vapor balancing and use of a pressure setting to comply with storage tank control requirements has been used in several maximum achievable control technology (MACT) standards including the NESHAP for Pharmaceuticals Production, the NESHAP for Pesticide Active Ingredient Production, and the NESHAP for Miscellaneous Organic Chemical Manufacturing.

However, in the proposed rules section of this Federal Register , we are publishing a separate document that will serve as the proposal in the event that adverse comments are filed. If we receive any adverse comments on the direct final rule, we will publish a timely withdrawal in the Federal Register informing the public that the amendments are being withdrawn due to adverse comment. We will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second comment period on the direct final rule. Any parties interested in commenting must do so at this time.

We are amending the HON to allow vapor balancing in conjunction with the use of a tank pressure setting to comply with the storage tank control requirements. Vapor balancing captures the displaced emissions, or working losses, from the storage tank and returns the vapors to the tank truck, railcar, or barge. To eliminate diurnal breathing losses from storage vessels, the vapor balancing provisions require a pressure setting of 2.5 pounds per square inch gage (psig) on the pressure-relief valve on storage vessels. The vapor balancing provision requires that displaced vapors from tank trucks and railcars be controlled at the reloading or cleaning facility to at least 95 percent, the control level of the standard.

As a means of demonstrating continuous compliance with the pressure setting requirement, the provisions require the owner or operator to record the pressure vent setting during each transfer operation and to monitor the pressure relief valve on a quarterly basis to ensure no breathing losses. To demonstrate compliance with the offsite provisions, the owner or operator must obtain a certification from the cleaning and reloading facility indicating that the control requirements will be met. In addition, tank trucks, railcars, and barges would be required to have current certification of compliance with pressure test requirements, and the owner or operator would be required to keep a record of the certifications.

We are making the direct final rule amendments because they provide the industry with another compliance option, one that will result in emissions reductions equal to, or greater than, those achieved by the existing control options. The direct final rule amendments would also result in a more efficient use of resources because a tank owner would not have to purchase and operate control equipment if a liquid supplier agrees to capture the vapors from the tank and treat them offsite. Vapor balancing provisions identical to those we are adding to the HON are already included in the promulgated NESHAP for Pharmaceuticals Production, Pesticide Active Ingredient Production, and Miscellaneous Organic Chemical Manufacturing.

Under Executive Order 12866, (58 FR 51735, October 4, 1993) the Agency must determine whether the regulatory action is “significant” and, therefore, subject to Office of Management and Budget (OMB) review and the requirements of the Executive Order. The Executive Order defines “significant regulatory action” as one that is likely to result in a rule that may:

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

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

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

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

It has been determined that the final rule amendments are not a “significant regulatory action” under the terms of Executive Order 12866 and are, therefore, not subject to OMB review.

This action does not impose any new information collection burden. This action gives a source owner or operator the option of using vapor balancing to comply with the standards. Since it is only an option, this action will not increase the information collection burden. However, the OMB has previously approved the information collection requirements contained in the existing regulations under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. , and has assigned OMB control number 2060-0282 (EPA ICR No. 1414.04).

A copy of the OMB approved Information Collection Request (ICR) may be obtained from Susan Auby, Collection Strategies Division; U.S. EPA (2822T); 1200 Pennsylvania Ave., NW, Washington, DC 20460, or by calling (202) 566-1672. Include the ICR or OMB number in any correspondence.

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

An Agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.

The EPA has determined that it is not necessary to prepare a regulatory flexibility analysis in connection with the final rule.

For purposes of assessing the impacts of today's amendments on small entities, a small entity is defined as: (1) A small business in the North American Industrial Classification System (NAICS) code 325 that has up to 500 employees; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of today's amendments on small entities, EPA has concluded that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact, since the primary purpose of the regulatory flexibility analysis is to identify and address regulatory alternatives “which minimize any significant economic impact of the proposed rule on small entities (5 U.S.C. sections 603 and 604).” Thus, any agency may conclude that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden or otherwise has a positive economic effect on all of the small entities subject to the rule. The amendments add a compliance option granting greater flexibility to small entities subject to the HON that may result in a more efficient use of resources for them and, therefore, impose no additional regulatory costs or requirements on owners or operators of affected sources.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, the EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires the EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least-costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows the EPA to adopt an alternative other than the least-costly, most cost effective, or least-burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before the EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

The EPA has determined that the final rule amendments do not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any 1 year. The final rule amendments provide a source owner or operator with another option to comply with the standards. Therefore, the final rule amendments are not subject to the requirements of sections 202 and 205 of the UMRA.

Executive Order 13132 (64 FR 43255, August 10, 1999) requires the EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

The final rule amendments do not have federalism implications. They will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The final rule amendments provide a source owner or operator with another option to comply with the standards and, therefore, impose no additional burden on sources. Thus, Executive Order 13132 does not apply to the final rule amendments.

In the spirit of Executive Order 13132 and consistent with EPA policy to promote communications between the EPA and State and local governments, the EPA specifically solicits comment on the final rule amendments from State and local officials.

Executive Order 13175 (65 FR 67249, November 9, 2000) requires the EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” The final rule amendments do not have tribal implications, as specified in Executive Order 13175. The final rule amendments provide a source owner or operator with another option to comply with the standards and, therefore, impose no additional burden on sources. Thus, Executive Order 13175 does not apply to the final rule amendments.

The EPA specifically solicits additional comment on the final rule amendments from tribal officials.

Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that the EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the EPA must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the EPA.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. Today's final rule amendments are not subject to Executive Order 13045 because they are based on technology performance, not health or safety risks. Furthermore, the final rule amendments have been determined not to be “economically significant” as defined under Executive Order 12866.

The final rule amendments are not subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because they are not a significant regulatory action under Executive Order 12866.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law No. 104-113, 12(d) (15 U.S.C. 272 note), directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g. , materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs the EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

No new standard requirements are cited in the final rule amendments. Therefore, the EPA is not proposing or adopting any voluntary consensus standards in the final rule amendments.

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. The EPA will submit a report containing the direct final rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the direct final rule in the Federal Register . The direct final rule is not a “major rule” as defined by 5 U.S.C. 804(2).

(1) The vapor balancing system must be designed and operated to route organic HAP vapors displaced from loading of the storage tank to the railcar, tank truck, or barge from which the storage tank is filled.

(2) Tank trucks and railcars must have a current certification in accordance with the U.S. Department of Transportation pressure test requirements of 49 CFR part 180 for tank trucks and 49 CFR 173.31 for railcars. Barges must have a current certification of vapor-tightness through testing in accordance with 40 CFR 63.565.

(3) Hazardous air pollutants must only be unloaded from tank trucks or railcars when vapor collection systems are connected to the storage tank's vapor collection system.

(4) No pressure relief device on the storage tank, or on the railcar or tank truck, shall open during loading or as a result of diurnal temperature changes (breathing losses).

(5) Pressure relief devices must be set to no less than 2.5 psig at all times to prevent breathing losses. Pressure relief devices may be set at values less than 2.5 psig if the owner or operator provides rationale in the notification of compliance status report explaining why the alternative value is sufficient to prevent breathing losses at all times. The owner or operator shall comply with paragraphs (g)(5)(i) through (iii) of this section for each pressure relief valve.

(i) The pressure relief valve shall be monitored quarterly using the method described in § 63.180(b).

(ii) An instrument reading of 500 ppmv or greater defines a leak.

(iii) When a leak is detected, it shall be repaired as soon as practicable, but no later than 5 days after it is detected, and the owner or operator shall comply with the recordkeeping requirements of § 63.181(d)(1) through (4).

(6) Railcars, tank trucks, or barges that deliver HAP to a storage tank must be reloaded or cleaned at a facility that utilizes the control techniques specified in paragraph (g)(6)(i) or (ii) of this section.

(i) The railcar, tank truck, or barge must be connected to a closed-vent system with a control device that reduces inlet emissions of HAP by 95 percent by weight or greater.

(ii) A vapor balancing system designed and operated to collect organic HAP vapor displaced from the tank truck, railcar, or barge during reloading must be used to route the collected HAP vapor to the storage tank from which the liquid being transferred originated.

(7) The owner or operator of the facility where the railcar, tank truck, or barge is reloaded or cleaned must comply with paragraphs (g)(7)(i) through (iii) of this section.

(i) Submit to the owner or operator of the storage tank and to the Administrator a written certification that the reloading or cleaning facility will meet the requirements of this section. The certifying entity may revoke the written certification by sending a written statement to the owner or operator of the storage tank giving at least 90 days notice that the certifying entity is rescinding acceptance of responsibility for compliance with the requirements of this paragraph (g)(7).

(ii) If complying with paragraph (g)(6)(i) of this section, comply with the requirements for a closed vent system and control device specified in §§ 63.119 through 63.123.

(iii) If complying with paragraph (g)(6)(ii) of this section, keep the records specified in § 63.123(i)(3).

On November 19, 2004, EPA published a direct final rule (69 FR 67647) and a notice of proposed rulemaking (69 FR 67695) promulgating and proposing, respectively, amendments to grant a site-specific treatment standard variance from the Land Disposal Restrictions (LDR) treatment standards for a selenium-bearing hazardous waste to Chemical Waste Management, Chemical Services LLC. EPA indicated that it was promulgating this site-specific treatment variance as a direct final rule because it believed this action to be non-controversial. However, the Agency further stated that if it received any adverse comments by December 20, 2004 on the direct final rule, it would publish a timely withdrawal of the direct final rule in the Federal Register , and address the adverse comments and determine what action to take in a future Federal Register document.

This is a summary of the Commission's Order, DA 04-3408, adopted on October 26, 2004, and released on October 28, 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, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554. The full text may also be downloaded at: 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. The Order amends § 80.373(f) of the Commission's rules to make VHF marine Channel 71 (156.575 MHz) available for intership port operations communications in Puget Sound, the Straits of Juan de Fuca, and the approaches thereto. This amendment will allow the vessel traffic in Puget Sound to be managed more efficiently and will protect the marine environment by preventing vessel collisions and groundings.

2. In 2000, the Commission amended § 0.331 of its rules to delegate authority to the Wireless Telecommunications Bureau (Bureau) to designate, by footnote to the frequency table in § 80.373(f), frequencies available for intership port operations communications in defined port areas. In the Report and Order, WT Docket No. 99-332, 15 FCC Rcd 11302 (2000), the Commission indicated that it was authorizing the Bureau to act on requests from the United States Coast Guard (Coast Guard) to make frequencies available for intership communications related to port operations in order to alleviate communications congestion related to such port operations.

3. On March 12, 2004, the Coast Guard submitted a request to the Bureau's Public Safety and Critical Infrastructure Division recommending that VHF marine Channel 71 be authorized for use by the Puget Sound Pilots for intership port operations communications at a normal power of one watt (exceptionally ten watts) in Puget Sound, the Straits of Juan de Fuca, and the approaches thereto Enclosed was a letter from the Puget Sound Pilots asking the Coast Guard to request that the Commission designate VHF marine Channel 71 as a port operations channel in the area under the jurisdiction of the Captain of the Port Puget Sound, with its use limited to intership communications with pilots regarding the movement and docking of ships at a normal power of one watt. The Coast Guard also enclosed letters from the North Pacific Marine Radio Council (NPMRC), the Puget Sound Harbor Safety and Security Committee (PSHSSC), the Recreational Boating Association of Washington (RBAW), and the Captain of the Port Puget Sound, all concurring with the request.

4. We agree with the Coast Guard that the proposed designation will enhance maritime safety in this busy waterway. In this type of environment, harbor pilots rely upon clear and effective radio communications with tugs to help ensure the safe ingress and egress of large vessels. The parties assert that there is a critical need for an additional VHF channel for communications between large commercial vessels, tankers and other vessels carrying hazardous cargoes, and pilots and tugs in the Vessel Traffic Service Puget Sound (VTS Puget Sound). They note that the only frequency dedicated to intership communications related to port operations, VHF marine Channel 77 (156.875 MHz), is frequently congested. Congestion is intensified by the Canadian use of this channel for ship movement and docking at Delta Port, British Columbia, near the northern border of VTS Puget Sound.

5. The parties submit that VHF marine Channel 71, which currently is designated for noncommercial intership and ship-to-coast use, is a good candidate for a port operations channel because it carries very little recreational traffic, even during the summer months. RBAW agrees that recreational vessels have sufficient other channels to meet their VHF communication needs.

6. Based on the foregoing, we hereby amend the frequency table in § 80.373(f) of the Commission's rules to make VHF marine Channel 71 available for intership port operations communications in Puget Sound, the Straits of Juan de Fuca, and the approaches thereto. The normal output power must not exceed one watt, and the maximum output power must not exceed ten watts. This action will allow more efficient management of vessel traffic in the area, thereby increasing navigational safety and protecting the marine environment in this busy port.

7. We will permit private coast stations currently authorized to operate on VHF marine Channel 71 within VTS Puget Soundto continue operation until the end of their current license term on a non-interference basis. NPMRC has contacted the owners of these stations, and they have agreed to change to another appropriate frequency. Bureau staff will assist affected licensees in finding suitable alternative channels. No fee will be charged for affected stations that request an alternative channel before their next license renewals.

8. Finally, Puget Sound Pilots also request that VHF marine Channel 76 (156.825 MHz), which recently was designated for port operations communications, be limited to intership communications with pilots regarding the movement and docking of ships. The Coast Guard, however, did not support this request. We agree with the Coast Guard and do not believe that it is necessary to so limit the use of Channel 76. We believe that in redesignating Channels 75 (156.775 MHz) and 76, the Commission (which acted after Puget Sound Pilots submitted their request to the Coast Guard) addressed the needs for additional spectrum for navigation-related port operation communications. Therefore, we will not amend our rules to limit such communications.

9. The Commission will send a copy of this 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).

10. Accordingly, it is ordered, that pursuant to the authority contained in sections 4(i) and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r), and § 0.331 of the Commission's rules, 47 CFR § 0.331, part 80 of the Commission's rules is amended as set forth in Appendix A, effective January 24, 2005.

On December 27, 2002, the agency published in the Federal Register (67 FR 79416) a final rule establishing Federal Motor Vehicle Safety Standard (FMVSS) No. 403, Platform lift systems for motor vehicles, and FMVSS No. 404, Platform lift installation on motor vehicles (final rule). These two new standards provide practicable, performance-based requirements and compliance procedures to ensure the safety of platform lifts and vehicles equipped with those lift systems.

FMVSS No. 403 establishes requirements for platform lifts that are designed to carry passengers who rely on wheelchairs, scooters, canes, and other mobility aid devices in entering and exiting motor vehicles. The standard requires that these lifts meet minimum platform dimensions and maximum size limits for platform protrusions and gaps between the platform and either the vehicle floor or the ground. The standard also requires handrails, a threshold warning signal, and retaining barriers. Performance tests are specified for wheelchair retention on the platform, lift strength, and platform slip resistance requirements. A set of interlocks is prescribed to prevent accidental movement of a lift and the vehicle on which a lift is installed.

FMVSS No. 404 establishes requirements for vehicles equipped with platform lifts. Vehicle manufacturers must install lifts certified as meeting FMVSS No. 403. The vehicle standard requires that the lifts be installed according to the lift manufacturer's instructions and must continue to meet all of the applicable requirements of FMVSS No. 403. The standard also requires that specific information is made available to lift users.

The December 27, 2002 final rule established a compliance date of December 27, 2004 for both FMVSS Nos. 403 and 404.

On October 1, 2004, in response to petitions for reconsideration, the agency revised the standards by amending the definitions of certain operational functions, the requirements for lift lighting on public lifts, the interlock requirements, compliance procedures for lifts that manually deploy/stow, the environmental resistance requirements, the edge guard requirements, the wheelchair test device specifications, and the location requirements for public lift controls (69 FR 58843). The October 2004 final rule did not amend the compliance date for the standards.

The agency has received several telephone requests from vehicle manufacturers to delay the compliance date of FMVSS No. 404. Specifically, several over-the-road coach and bus manufacturers have stated that compliant lifts have not been available to allow for the production of FMVSS No. 404-compliant vehicles by the compliance date. While lift manufacturers have informed the agency that they will be able to produce compliant lifts by the compliance date, vehicle manufacturers will need additional time to incorporate these lifts in their vehicle production.

Additionally, some lifts relied upon by specialty or niche vehicle manufacturers ( i.e., street “trolley” and motor home manufacturers) will no longer be produced. These companies stated that the lack of compliant lifts has been a recent development and that additional time is required to find replacement lifts.

The agency has also received numerous inquiries regarding the applicability of the standards. There appears to be some confusion as to the applicability to lifts manufactured prior to the compliance date, aftermarket installation of lifts to vehicles manufactured prior to the compliance date, and aftermarket installation of lifts to vehicles manufactured after the compliance date.

Petitions for reconsideration of the October 2004 final rule were received from a school bus manufacturer, Blue Bird Body Company (Blue Bird); two school bus manufacturer associations, School Bus Manufacturers Technical Council (SBMTC) and Manufacturers Council of Small School Buses (Manufacturers Council); a mobility industry association, Adaptive Driving Alliance (Driving Alliance); and a vehicle systems manufacturer, Safety Systems and Controls, Inc. (Safety Systems).

A majority of the comments focused on the transfer of the lighting requirements from FMVSS No. 403, the equipment standard to FMVSS No. 404, the vehicle standard. As originally established in December 2002, the agency structured the lighting requirements so that a platform lift system would be a complete, self-contained system ready for installation upon delivery to the vehicle manufacturer. FMVSS No. 403 required a lift manufacturer to provide the hardware and instructions necessary to install lighting in a manner that complies with the requirements of the standard. In response to petitions for reconsideration of the December 2002 final rule, the agency moved the responsibility for the lighting requirements from the platform lift manufacturer to the vehicle manufacturer. We explained that vehicle manufacturers have traditionally provided lift lighting. Additionally, the manufacturers of vehicles that are required by FMVSS No. 404 to be equipped with lighted platform lifts already must comply with American with Disabilities Act  1 (ADA) lighting standards.

In their petitions for reconsideration, Blue Bird, SBMTC, and Manufacturers Council stated that not all vehicles required to have lighted platform lifts are subject to the ADA requirements, notably school buses. Petitioners requested that the lighting requirements be shifted back to FMVSS No. 403. They further stated that school bus manufacturers would have difficulty in complying with the new lighting requirement in the time between the October 2004 final rule and the December 2004 compliance date. These petitioners also raised concern that the luminescence requirements of the standard would require lights that produce high levels of heat, which could potentially burn occupants, and could potentially cause glare and distraction problems. 2 At a minimum, these petitioners requested that the agency delay the compliance date of the standards while we contemplated their petitions.

Additionally, Safety Systems requested that the interlock requirements be amended to include provisions for “malicious release.” The Driving Alliance requested a clarification of the applicability of the standards to aftermarket installation of certified and non-certified lifts to vehicles manufactured before and after the compliance date.

Today's final rule delays the compliance date of FMVSS No. 403 until April 1, 2005, and FMVSS No. 404 until July 1, 2005. This delay will prevent the disruption in the availability of vehicles manufactured to accommodate individuals with disabilities. The delay will also permit the agency to address any outstanding issues and confusion as to the applicability of the standards.

The delay in the compliance date will provide relief to vehicle manufacturers that would have been unable to incorporate compliant lifts into their vehicles by the December 27, 2004 effective date because of delays in receiving compliant lifts. The delay to the compliance date for FMVSS No. 404 also provides manufacturers an opportunity to secure replacement lifts for those lifts that will no longer be produced. This will further afford vehicle manufacturers and lift manufacturers an opportunity to perform any final engineering analysis required to incorporate compliant lifts into vehicle production.

The staggered compliance dates will ensure that vehicle manufacturers will have at least three months of lead time to incorporate compliant lifts before the compliance date for the vehicle standard. Additionally, we fully expect that lift manufacturers intending to distribute compliant lifts beginning December 27, 2004, will still do so. This will provide vehicle manufacturers adequate lead time to comply with FMVSS No. 404.

The agency recognizes that the installation of a compliant lift onto a vehicle that is not required to comply with FMVSS No. 404 may require removal or alteration of elements installed on the lift for purposes of compliance with FMVSS No. 403; e.g., removal or alteration of the threshold warning system or interlock system. Because the vehicle is not required to be equipped with an FMVSS No. 403 compliant lift, we would not consider alterations to the lift in this situation as making the lift inoperative with FMVSS No. 403 within the meaning of 49 U.S.C. 30122.

The agency also recognizes that there is some confusion within the mobility industry as to the applicability of FMVSS Nos. 403 and 404 to aftermarket lift installations. The agency is in the process of responding to several requests for interpretation that will address this and related issues. These responses will be publicly available in advance of the new compliance dates.

Further, the agency is in the process of responding to petitions for reconsideration of the October 2004 final rule. The agency's response could affect the certification responsibility of platform lift and vehicle manufacturers as well as the requirements for platform lift lighting systems. The six-month delay in the compliance date relieves vehicle manufacturers of the potential of installing systems for which requirements may be amended.

Because the December 27, 2004 effective date for FMVSS Nos. 403 and 404 is fast approaching, NHTSA finds for good cause to issue this interim final rule to delay the compliance date. Further we find good cause that it should take effect immediately. Today's interim final rule makes no substantive change to the standard, but delays the compliance dates for FMVSS Nos. 403 and 404 for a period of three and six months, respectively. We are excepting comments on this delay. See, Request for Comments section below.

Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), provides for making determinations whether a regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and to the requirements of the Executive Order. The Order defines a “significant regulatory action” as one that is likely to result in a rule that may:

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

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

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

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

This rulemaking document was not reviewed under Executive Order 12866. It is not significant within the meaning of the DOT Regulatory Policies and Procedures. It does not impose any burden on manufacturers, and extends the compliance date FMVSS Nos. 403 and 404 for 3 and 6 months, respectively. The agency believes that this impact on manufacturers is so minimal as to not warrant the preparation of a full regulatory evaluation. Additionally, because the Federal standards incorporate the most relevant industry standards and guidelines, the agency believes that any impact on the benefits of the Federal standards will be minimal.

Pursuant to the Regulatory Flexibility Act, we have considered the impacts of this rulemaking action will have on small entities (5 U.S.C. 601 et seq. ). I certify that this rulemaking action will not have a significant economic impact upon a substantial number of small entities within the context of the Regulatory Flexibility Act. The following is our statement providing the factual basis for the certification (5 U.S.C. 605(b)). The final rule affects manufacturers of platform lifts for motor vehicles and vehicles equipped with platform lifts. According to the size standards of the Small Business Association (at 13 CFR 121.601), manufacturers of platform lifts are considered manufacturers of “All Other Motor Vehicle Parts Manufacturing” (NAICS Code 336399). The size standard for NAICS Code 336399 is 750 employees or fewer. The size standard for manufacturers of “Light Truck and Utility Vehicle Manufacturing” (NAICS Code 336112) is 1,000 employees or fewer. This Final Rule will not have any significant economic impact on a substantial number of small businesses in these industries because the rule only delays by three and six months, respectively, the compliance dates of previously published final rules. Small organizations and governmental jurisdictions that purchase platform lifts and vehicles equipped with platform lifts will not be significantly affected because this rulemaking will not cause price increases. Further, the delay in compliance dates will avoid a disruption in the manufacturing and sales that would have occurred for some lift-equipped vehicles. Accordingly, we have not prepared a Final Regulatory Flexibility Analysis.

E.O. 13132 requires NHTSA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” E.O. 13132 defines the term “Policies that have federalism implications” to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under E.O. 13132, NHTSA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or NHTSA consults with State and local officials early in the process of developing the proposed regulation.

This final rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government as specified in E.O. 13132. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually. This action, which extends the compliance date of FMVSS Nos. 403 and 404, will not result in additional expenditures by state, local or tribal governments or by any members of the private sector. Therefore, the agency has not prepared an economic assessment pursuant to the Unfunded Mandates Reform Act.

Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) (PRA), a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. Since it only delays the compliance date of a final rule, this final rule does not impose any new collection of information requirements for which a 5 CFR part 1320 clearance must be obtained.

This final rule does not have any retroactive effect. Under 49 U.S.C. 30103(b), whenever a Federal motor vehicle safety standard is in effect, a state or political subdivision may prescribe or continue in effect a standard applicable to the same aspect of performance of a Federal motor vehicle safety standard only if the standard is identical to the Federal standard. However, the United States Government, a state, or political subdivision of a state, may prescribe a standard for a motor vehicle or motor vehicle equipment obtained for its own use that imposes a higher performance requirement than that required by the Federal standard. 49 U.S.C. 30161 sets forth a procedure for judicial review of final rules establishing, amending, or revoking Federal motor vehicle safety standards. A petition for reconsideration or other administrative proceedings are not required before parties file suit in court.

Executive Order 12866 requires each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions:

Comment is solicited on the extent to which this final rule effectively uses plain language principles.

Under the National Technology and Transfer and Advancement Act of 1995 (NTTAA) (Pub. L. 104-113), “all Federal agencies and departments shall use technical standards that are developed or adopted by voluntary consensus standards bodies, using such technical standards as a means to carry out policy objectives or activities determined by the agencies and departments.”

The equipment standard was drafted to include or exceed all government and voluntary consensus standards. This final rule extends the compliance date of that final rule to July 1, 2004.

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

We have not conducted an evaluation of the impacts of this final rule under the National Environmental Policy Act. This rulemaking action extends the date by which the manufacturers must comply with the newly upgraded requirements of FMVSS No. 205. This rulemaking does not impose any change that would have any environmental impacts. Accordingly, no environmental assessment is required.

This rule is not subject to E.O. 13045 because it is not “economically significant” as defined under E.O. 12866, and does not concern an environmental, health or safety risk that NHTSA has reason to believe may have a disproportionate effect on children.

Your comments must be written and in English. To ensure that your comments are correctly filed in the Docket, please include the docket number of this document in your comments. Your comments must not be more than 15 pages long. (49 CFR 553.21). We established this limit to encourage you to write your primary comments in a concise fashion. However, you may attach necessary additional documents to your comments. There is no limit on the length of the attachments. Please submit two copies of your comments, including the attachments, to Docket Management at the address given above under ADDRESSES. Comments may also be submitted to the docket electronically by logging onto the Docket Management System Web site at http://dms.dot.gov. Click on “Help & Information” or “Help/Info” to obtain instructions for filing the document electronically. If you are submitting comments electronically as a PDF (Adobe) file, we ask that the documents submitted be scanned using Optical Character Recognition (OCR) process, thus allowing the agency to search and copy certain portions of your submissions. 3 Please note that pursuant to the Data Quality Act, in order for substantive data to be relied upon and used by the agency, it must meet the information quality standards set forth in the OMB and DOT Data Quality Act guidelines. Accordingly, we encourage you to consult the guidelines in preparing your comments. OMB's guidelines may be accessed at http://www.whitehouse.gov/omb/fedreg/reproducible.html. DOT's guidelines may be accessed at http://dmses.dot.gov/submit/DataQuality Guidelines.pdf.

If you wish Docket Management to notify you upon its receipt of your comments, enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail.

If you wish to submit any information under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Chief Counsel, NHTSA, at the address given above under FOR FURTHER INFORMATION CONTACT. In addition, you should submit two copies, from which you have deleted the claimed confidential business information, to Docket Management at the address given above under ADDRESSES. When you send a comment containing information claimed to be confidential business information, you should include a cover letter setting forth the information specified in our confidential business information regulation. (49 CFR part 512.)

We will consider all comments that Docket Management receives before the close of business on the comment closing date indicated above under DATES. To the extent possible, we will also consider comments that Docket Management receives after that date. If Docket Management receives a comment too late for us to consider in developing a final rule (assuming that one is issued), we will consider that comment as an informal suggestion for future rulemaking action.

You may read the comments received by Docket Management at the address given above under ADDRESSES. The hours of the Docket are indicated above in the same location. You may also see the comments on the Internet. To read the comments on the Internet, take the following steps:

(1) Go to the Docket Management System (DMS) Web page of the Department of Transportation ( http://dms.dot.gov ).

(2) On that page, click on “Simple Search.”

(3) On the next page ( http://dms.dot.gov/search ), type in the four-digit docket number shown at the beginning of this document. Example: If the docket number were “NHTSA-1998-1234,” you would type “1234.” After typing the docket number, click on “Search.”

(4) On the next page, which contains docket summary information for the docket you selected, click on the desired comments. You may download the comments. However, since the comments are imaged documents, instead of word processing documents, the downloaded comments are not word searchable.

Please note that even after the comment closing date, we will continue to file relevant information in the Docket as it becomes available. Further, some people may submit late comments. Accordingly, we recommend that you periodically check the Docket for new material.

Federal regulations at 50 CFR part 679 implementing the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) govern the groundfish fisheries in the BSAI. The North Pacific Fishery Management Council (Council) prepared the FMP, and NMFS approved it under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). General regulations that also pertain to the U.S. fisheries appear at subpart H of 50 CFR part 600.

The Council met in October 2004 to review scientific information concerning groundfish stocks, including the 2003 SAFE report and the EA (see ADDRESSES ), and to recommend 2005 proposed harvest specifications. The Council recommended a proposed total acceptable biological catch (ABC) of 3,345,963 metric tons (mt) and a proposed total TAC of 2,000,000 mt for the 2005 fishing year. The proposed TAC amounts for each species were based on the best available biological and socioeconomic information.

Under § 679.20(c)(1), NMFS published in the Federal Register the 2005 proposed harvest specifications for BSAI groundfish (December 8, 2004, 69 FR 70974). That document contains a detailed discussion of the 2005 proposed TACs, initial TACs (ITACs) and related apportionments, CDQ reserves, ABC amounts, overfishing levels, PSC allowances, PSQ reserve amounts, and associated management measures of the BSAI groundfish fishery.

This action provides interim harvest specifications and apportionments thereof for the 2005 fishing year that will become available on January 1, 2005, and will remain in effect until superseded by the 2005 final harvest specifications. Background information concerning the 2005 harvest specification process on which this interim action is based is provided in the above mentioned proposed harvest specification document.

Section 679.20(b)(1)(i) requires that 15 percent of the TAC for each target species and species group, except for pollock and the hook-and-line and pot gear allocation of sablefish, be placed in a non-specified reserve. The AFA supersedes this provision for pollock by requiring that the TAC for this species be fully allocated among the CDQ program, incidental catch allowance (ICA), and inshore, catcher/processor, and mothership directed fishery allowances. Section 803 of the Consolidated Appropriations Act of 2004 (CAA), Public Law (Pub. L.) 108-199, supersedes portions of the AFA and allocates the AI directed pollock fishery (DPF) to the Aleut Corporation after subtraction for the CDQ directed fishing allowance and ICA. Amendment 82 to the FMP would establish the management measures for the AI DPF. The proposed rule to implement Amendment 82 was published in the Federal Register for public comment and review on December 7, 2004 (69 FR 70589). If Amendment 82 is approved, final regulations implementing Amendment 82 are anticipated to be effective by March 2005.

Section 679.20(b)(1)(iii) requires that one half of each TAC amount placed in the non-specified reserve, with the exception of squid, be allocated to the groundfish CDQ reserve and that 20 percent of the hook-and-line and pot gear allocation of sablefish be allocated to the fixed gear sablefish CDQ reserve. Sections 679.20(a)(5)(i)(A) and 679.31(a)(2) require that 10 percent of the pollock TAC be allocated to the pollock CDQ reserve. With the exception of the hook-and-line and pot gear sablefish CDQ reserve, the CDQ reserves are not further apportioned by gear. Section 679.21(e)(1)(i) also requires that 7.5 percent of each PSC limit, with the exception of herring, be withheld as a PSQ reserve for the CDQ fisheries. Regulations governing the management of the CDQ and PSQ reserves are set forth at §§ 679.30 and 679.31.

Section 679.20(c)(2) requires interim harvest specifications to be effective at 0001 hours, A.l.t., January 1, and remain in effect until superseded by the final harvest specifications. Section 679.20(c)(2)(ii) provides that the interim harvest specifications will be established as one-fourth of each proposed ITAC amount and apportionment thereof (not including pollock, Pacific cod, Atka mackerel, and the hook-and-line and pot gear allocation of sablefish), one-fourth of each proposed PSQ reserve and PSC allowance established at § 679.21, and the proposed first seasonal allowance of pollock, Pacific cod and Atka mackerel TAC. As stated in the proposed harvest specifications (69 FR 70974), no harvest of groundfish is authorized before the effective date of this action implementing the interim harvest specifications.

Table 1 provides interim TAC and CDQ amounts and apportionments. Section 679.20(c)(2)(ii) does not provide for an interim harvest specification for the hook-and-line and pot gear allocations of sablefish for the CDQ reserve or for sablefish managed under the Individual Fishing Quota (IFQ) program. As a result, directed fishing for the hook-and-line and pot gear allocations of CDQ sablefish and IFQ sablefish is prohibited until the effective date of the 2005 final harvest specifications.

Under § 679.21(e), annual PSC limits are specified for red king crab, Chionoecetes bairdi Tanner crab, and C. opilio crab in applicable Bycatch Limitation Zones (see § 679.2) of the Bering Sea subarea, and for Pacific halibut and Pacific herring throughout the BSAI. Section 679.21(e) authorizes the apportionment of each PSC limit into PSC allowances for specified fishery categories. Under § 679.21(e)(1)(i), 7.5 percent of each PSC limit specified for halibut, crab, and salmon is allocated as a PSQ reserve for use by the groundfish CDQ program.

Section 679.20(c)(2)(ii) provides that one-fourth of each proposed PSQ reserve and PSC allowance be made available on an interim basis for harvest at the beginning of the fishing year, until superseded by the final harvest specifications. Table 2 lists the PSQ reserves and fishery specific interim PSC allowances for halibut and crab effective at 0001 hours, A.l.t., January 1, 2005.

In accordance with § 679.20(d)(1)(i), if the Administrator, NMFS, Alaska Region (Regional Administrator) determines that any allocation or apportionment of a target species or “other species” category has been or will be reached, the Regional Administrator may establish a directed fishing allowance for that species or species group. If the Regional Administrator establishes a directed fishing allowance, and that allowance is or will be reached before the end of the fishing year, NMFS will prohibit directed fishing for that species or species group in the specified subarea or district (§ 697.20(d)(1)(iii)). Similarly, under regulations at § 679.21(e), if the Regional Administrator determines that a fishery category's bycatch allowance of halibut, red king crab, C. bairdi crab or C. opilio crab for a specified area has been reached, the Regional Administrator will prohibit directed fishing for each species in that category in the specified area.

The Regional Administrator has determined that the remaining allocation amounts in Table 3 will be necessary as incidental catch to support other anticipated groundfish fisheries for the 2005 fishing year.

Consequently, in accordance with § 679.20(d)(1)(i), the Regional Administrator establishes the directed fishing allowances for the above species or species groups as zero.

Therefore, in accordance with § 679.20(d)(1)(iii), NMFS is immediately prohibiting directed fishing for these species in the specified areas in Table 3. These closures will remain in effect from 0001 hrs, A.l.t., January 1, 2005, until superseded by the 2005 final harvest specifications for BSAI groundfish or for the AI DPF on the approval of Amendment 82 and the effective date of its implementing regulations.

In addition, the BSAI Zone 1 annual red king crab allowance specified for the trawl rockfish fishery (see § 679.21(e)(3)(iv)(D)) is 0 mt and the BSAI first seasonal halibut bycatch allowance specified for the trawl rockfish fishery is 0 mt. The BSAI annual halibut bycatch allowance specified for the trawl Greenland turbot/arrowtooth flounder/sablefish fishery categories is 0 mt (see § 679.21(e)(3)(iv)(C)). Therefore, in accordance with § 679.21(e)(7)(ii) and (v), NMFS is prohibiting directed fishing for rockfish by vessels using trawl gear in Zone 1 of the BSAI and directed fishing for Greenland turbot/arrowtooth flounder/sablefish by vessels using trawl gear in the BSAI from 0001 hrs., A.l.t., January 1, 2005, until superseded by the final 2005 harvest specifications for BSAI groundfish. NMFS is also prohibiting directed fishing for rockfish outside Zone 1 in the BSAI until 1200 hrs, A.l.t, July 1, 2005.

While these closures are in effect, the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a fishing trip. These closures to directed fishing are in addition to closures and prohibitions found in regulations at 50 CFR part 679. Areas are defined in § 679.2. In the BSAI, “Other rockfish” includes Sebastes and Sebastolobus species except for Pacific ocean perch, shortraker, rougheye, and northern rockfish.

Section 679.4(1) sets forth procedures for AFA inshore catcher vessel pollock cooperatives to apply for and receive cooperative fishing permits and inshore pollock allocations. Table 4 lists the interim pollock allocations to the seven inshore catcher vessel pollock cooperatives for 2005. Allocations for cooperatives and vessels not participating in cooperatives are not made for the AI subarea because the CAA requires the non-CDQ directed pollock fishery to be fully allocated to the Aleut Corporation.