This document delays the effective date from February 1, 2005, to August 1, 2005, for aflatoxin, size and quality provisions established under Marketing Order No. 983 (order). The order, which became effective in April 2004, regulates the handling of pistachios produced in California. Sections 983.38 through 983.45 of the order establish maximum aflatoxin along with minimum size and quality requirements for California pistachios, and were scheduled to become effective on August 1, 2004.

The Administrative Committee for Pistachios (Committee) recommended the delay in the effective date at a December 8, 2004, meeting. The Committee voted unanimously that postponing the effective date will provide the industry and the Committee with additional time to establish rules, regulations, and program procedures needed to implement the aflatoxin, size and quality requirements of the order. Rules, regulations and program procedures are recommended by the Committee, which is responsible for locally administering the order, for approval by the Secretary. Postponing the effective date of the order's regulatory provisions will allow the new Committee time to become more established and actively participate in implementing the order.

Also, the postponed effective date would correspond with the beginning of the 2005 crop year. Given that the California pistachio marketing order is a newly established regulatory program, the Agricultural Marketing Service deems that the coordination of program reporting and recordkeeping requirements with the beginning of the program's fiscal and crop year as important to successful implementation of the order.

Thus, the effective date of §§ 983.38 through 983.45 should be delayed until August 1, 2005. This delay will provide sufficient time for the Committee to recommend any rules and regulations deemed necessary.

On July 19, 2004, the Department of Homeland Security (DHS) and the Department of Justice (Justice) jointly published proposed rules with request for comments entitled “Execution of Removal Orders; Countries to Which Aliens May Be Removed” (69 FR 42901). In response to the proposed rulemaking, DHS received a total of 18 separate timely submissions and Justice received a total of 23 separate timely submissions. The commenters included various nongovernmental organizations (NGOs), private attorneys, and other interested individuals. Many of the submissions were duplicates sent to both DHS and Justice that either used or otherwise substantially adopted one set of comments submitted collectively by a group of NGOs. The majority of these comments did not differentiate between the authority of DHS or Justice. Accordingly, to the extent that these rules address two independent sources of authority in this area, the comments are addressed by the appropriate agency with authority over the area raised by the commenter. Additionally, because many of the comments submitted to both DHS and Justice are similar and endorse the submissions of other commenters, the Secretary and the Attorney General address the responses by topic rather than by referencing each specific commenter and comment.

DHS and Justice hereby incorporate the Supplementary Information contained in the Notice of Proposed Rulemaking, 69 FR 42901, 42902-09, and reiterate that the Secretary and the Attorney General have undertaken to publish these changes in their respective regulations in a single document as a convenience to the public. The Secretary and the Attorney General are each acting independently and within their respective statutory delegations of authority in separately amending the rules of their respective Departments as set forth in these final rules. The rules of DHS and Justice will continue to separately implement the provisions of the Immigration and Nationality Act (Act) within their respective jurisdictions.

Section 241(b)(1) and (2) of the Act, 8 U.S.C. 1231(b)(1) and (2), provides the process for determining the countries to which an alien  1 may be removed after a hearing before an immigration judge, the issuance of a final order finding that the alien is removable from the United States and not eligible for relief from removal, and disposition of any administrative and judicial appeals.

Section 241(b)(1) of the Act, 8 U.S.C. 1231(b)(1), relates to arriving aliens  1 whom DHS has placed in removal proceedings, a relatively small category because most arriving aliens are subject to expedited removal under section 235 of the Act, 8 U.S.C. 1225. It should be noted that the authority to initiate expedited removal proceedings in certain circumstances has recently been expanded. See Notice Designating Aliens for Expedited Removal, 69 FR 48877 (August 11, 2004) (authorizing expedited removal proceedings for aliens present in the United States without having been admitted or paroled, who are encountered within 100 miles of the border, and who cannot establish that they have been physically present in the United States continuously for the preceding fourteen days); Notice Designating Aliens Subject to Expedited Removal Under Section 235(b)(1)(A)(iii) of the Immigration and Nationality Act, 67 FR 68924 (November 13, 2002) (authorizing expedited removal proceedings for certain aliens who arrive in the United States by sea, who are not admitted or paroled, and who have not been continuously physically present in the United States for the preceding two years). Section 241(b)(1) of the Act provides a two-step process to determine the country of removal for an arriving alien: (1) The country from which the alien boarded a conveyance to the United States; or (2) an alternative country, such as the country of citizenship or birth.

Section 241(b)(2) of the Act, 8 U.S.C. 1231(b)(2), applies in the far more common circumstance of the removal of other ( i.e. , non-arriving) aliens. Section 241(b)(2) of the Act provides a three-step process to determine the country of removal for these aliens: (1) The country designated by the alien; (2) an alternative country of which the alien is a subject, national, or citizen, with certain conditions; and (3) an additional country, such as the country from which the alien boarded a conveyance to the United States or the country of the alien's residence or birth.

Sections 241(b)(1) and (2) of the Act use the terms “country” and “accept” without any statutory definition. Some subparagraphs within section 241(b)(2) of the Act state that the alien is to be removed to a “country” that will “accept” the alien, while other provisions do not state that a “country” must “accept” the alien. The United States courts of appeals have differed on the meaning and effect of these terms. Compare Jama v. INS, 329 F.3d 630 (8th Cir. 2003), cert. granted, 124 S.Ct. 1407 (2004) (No. 03-674), with Ali v. Ashcroft, 346 F.3d 873 (9th Cir. 2003), petition for reh'g pending (No. 03-35096, 9th Cir.). These rules implement the provisions of the Act and amend the regulations of DHS and Justice in response to this intercircuit conflict.

The following paragraphs will address each substantive issue raised in comments received by DHS and Justice. This discussion will not describe in detail the provisions outlined in the rules, but rather will address only those provisions relevant to the comments. Commenters frequently addressed identical issues in their comments, and these issues have been consolidated for the response. This discussion has been organized into sections based upon the themes of comments for the convenience of the reader.

Many commenters questioned the authority of the Secretary and the Attorney General to promulgate these final rules. Commenters questioned whether the rules had separation of power implications and whether the rules were ultra vires in light of the litigation pending around the country regarding the interpretation of section 241 of the Act, 8 U.S.C. 1231, and the language of the statute. Compare Jama , 329 F.3d 630 (8th Cir. 2003), with Ali , 346 F.3d 873 (9th Cir. 2003). In these comments, the commenters invoke the oft-quoted statement of Marbury v. Madison, 1 Cranch (5 U.S.) 137 (1803), that it is “emphatically the province and duty of the judicial department to say what the law is.”

These comments fail to appreciate the nature of rulemaking within the structure of the federal law. Accordingly, the Attorney General and the Secretary must reiterate basic principles of separation of powers and administrative law that govern rulemakings. The three Branches of government operate within defined spheres, but those spheres sometimes overlap. Congress enacts statutes, and delegates to the Executive Branch the authority to make rules that interpret and fill in the administrative details of those statutes. The interpretation of the statutes in these rules are given due deference by the courts when cases present questions of statutory interpretation. INS v. Aguirre-Aguirre, 526 U.S. 415, 423-25 (1999); Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-45 (1983). The invocation of the judicial power, however, does not stay the processes of government; Congress may amend the statute at any time. Similarly, the Executive Branch may amend the regulations under the statute at any time. Not infrequently, these amendments result in different disposition of the cases pending before the courts. See, e.g., Bell v. Wolfish, 441 U.S. 520, 549-52 (1979) (amendment of Bureau of Prisons regulations while constitutional challenge to prior regulations pending in Supreme Court); see also Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735 (1996) (amendment to the regulations interpreting “interest” as used in the National Bank Act while issue of what constituted interest was in litigation); cf. Sanks v. Georgia, 401 U.S. 144 (1971) (amendment to state statute while constitutional challenge to prior statute pending in Supreme Court). In fact, in Smiley, the Court specifically stated: “That it was litigation that disclosed the need for the regulation is irrelevant.” Smiley, 517 U.S. at 741. As these and a number of other cases make clear, exercise of authority granted to make rules pending litigation is both an acceptable and a long-standing practice.

The commenters suggest that the Executive's amendment is an interference with the authority of the courts. However, as the District of Columbia Circuit has pointed out,

Additionally, as noted in the proposed rules, the statute does not define the terms “country” and “acceptance.” Given the exclusive province of the Executive in that vast external realm of determining when a “country” has “accepted” its proffer of an alien, the Attorney General and the Secretary, as the respective delegates of the President, are providing the interpretation that conforms with the foreign policy of the United States. These regulations are, thus, wholly within their authority to promulgate.

One commenter stated that it “makes little sense for the government to expend significant staff time and expense to promulgate regulations that could need retraction or extensive overhauling in a matter of months, depending upon the Supreme Court's determination.” The Secretary and the Attorney General appreciate the commenters' suggestion but have determined that promulgation of these rules is necessary at this time.

Accordingly, the Secretary and the Attorney General promulgate the regulations as proposed, with minor changes as noted below.

Some commenters questioned the interpretation of the Secretary and the Attorney General of section 241(b) of the Act, 8 U.S.C. 1231(b), and articulated their position that the term “country” as used in that section is premised on the existence or functionality of a government in that country based on “longstanding judicial interpretations.” In support of their argument, the commenters rely on three cases that are far from dispositive of the issue. Further, the difference in terminology used within section 241(b)(2) of the Act and Supreme Court precedent support the interpretation of the Secretary and Attorney General.

First, the commenters cite three cases in support of their contention that “longstanding judicial interpretations” of “country” require the existence or functionality of a government. In all three cases cited by the commenters, the courts found that the United States could deport the aliens to the proposed country of removal, but whether “country” requires the existence or functionality of a government was not specifically at issue in any of the cases. In Chuen v. Esperdy, 285 F.2d 353 (2d Cir. 1960), the Second Circuit addressed whether “Hong Kong, a colony of the United Kingdom,” was a country for purposes of the removal statute. In a per curiam opinion of two paragraphs finding in favor of the government, the court concluded “we think that any place possessing a government with authority to accept an alien deported from the United States can qualify as a “country” under the statute.” Id. That issue is not in dispute; a place possessing a government with authority to accept an alien deported from the United States “can” qualify as a country. However, the converse does not flow from this conclusion, i.e. , that a place not possessing a government with authority to accept an alien deported from the United States cannot qualify as a country for purposes of section 241(b) of the Act. One conclusion simply does not flow from the other as a matter of logic. In fact, the court in Chuen was not faced with, nor did it address, the latter question. Accordingly, Chuen does not support the commenters' position.

Similarly, Delany v. Moraitis, 136 F.2d 129 (4th Cir. 1943), finding in favor of the government that an alien (a Greek citizen) could be deported to the custody of the Greek government in exile in England, does not support the proposition that “country” under section 241(b) of the Act requires the existence or functionality of a government. In Delany, it was not possible to deport the alien to Greece because it was under German control at the time. Id. at 130. The court framed the issue in Delany as follows: “The question presented by the appeal, therefore, is whether, under the statute, the [alien] must be allowed to remain in this country, where he has no right to remain under our laws, or whether the statute will be complied with if he be returned to the political dominion and control of the country from which he came. We think the latter is the case.” Id. Commenters, in citing Delany, focus on the following statement in support of their proposition—“a man's ‘country’ is more than the territory in which its people live. The term is used generally to indicate the state, the organization of social life which exercises sovereign power in behalf of the people.” Id. at 130. The fact that a country is “more than” the territory in which its people live—especially considering the unique factual circumstance of the case involving a government in exile recognized by the United States—does not exclude that a country is “at least” the territory in which its people live. As such, Delany does not support the proposition that “country” under 241(b) of the Act requires the existence or functionality of a government; in fact, as with Chuen, Delany simply did not address the specific issue of whether the term “country” in the removal provision requires the existence or functionality of a government. Accordingly, Delany does not support the commenters' position. It should be noted that the predecessor to section 241(b)(2)(F) of the Act was enacted post- Delany to allow for removal to governments in exile and that the Board of Immigration Appeals (Board) in Matter of Linnas, 19 I&N Dec. 302, 305 (BIA 1985), found that Delany was no longer effective law for the proposition that “country” can be construed to encompass a government in exile.

Finally, contrary to the commenters' suggestion, Rogers v. Sheng, 280 F.2d 663, 664-65 (D.C. Cir. 1960), finding in favor of the government that Formosa was a country for purposes of removal because it had a government that had “undisputed control of the island,” is also not dispositive of the current issue. Formosa had been ceded by China to Japan in 1895. Id. at 664. The alien argued that Formosa was neither a country nor part of any country. Id. at 663. The court described the status of Formosa as follows: “Following World War II, Japan surrendered all claims of sovereignty over Formosa. But in the view of our State Department, no agreement has “purported to transfer the sovereignty of Formosa to (the Republic of) China.” At the present time, we accept the exercise of Chinese authority over Formosa, and recognize the Government of the Republic of China * * * as the legal Government of China.” Id. With this background in mind, the commenters' reliance on the fact that the court found that Formosa was a country because there was “a government on Formosa which has undisputed control of the island,” id., and therefore that the existence or functionality of a government is a requirement under section 241(b) of the Act, is misplaced. As with Chuen and Delany, the court in Rogers did not address the precise question of whether the term “country” under the predecessor to section 241(b) of the Act required the existence or functionality of a government. The court simply addressed the question of whether, as espoused by the government, Formosa was a country under the predecessor to section 241(b) of the Act based on the facts of the case, and the court ruled in favor of the government. Accordingly, the commenters' assertion that these three cases are “longstanding judicial interpretations” demonstrating that the term “country” requires the existence or functionality of a government is incorrect. While the cases were decided decades ago (one in 1943, and two in 1960) and they are “longstanding” in that sense, the remainder of the commenters” proposition, i.e., that these cases demonstrate that the term “country” requires the existence or functionality of a government, does not follow from these cases. In fact, the cases did not directly address the issue of whether the term “country” as used in section 241(b) of the Act requires existence or functionality of a government. As such, the commenters' statement that the regulations are ultra vires because they contravene established precedent is simply incorrect.

Second, the specific language chosen by Congress within section 241(b) of the Act demonstrates that “country” does not require the existence or functionality of a government. It is settled that “[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” INS v. Cardozo-Fonseca, 480 U.S. 421, 432 (1987) (quoting Russello v. United States, 464 U.S. 16, 23 (1983)). A review of section 241(b) of the Act demonstrates that Congress included and excluded particular language, not only within the same statute, but within the same subsection. Specifically, section 241(b)(2) of the Act contains references to both “country” and to the “government of the country,” the latter term being used in the provisions discussing acceptance. Accordingly, the text of section 241(b)(2) of the Act itself supports the fact that “country” refers to a geographic region, without regard to the existence of functionality of a government. If Congress had intended the term “country” to also encompass an existing or functioning government, it would have been unnecessary for Congress to have also used “government of the country” within the same subsection as “country.” The fact that Congress deliberately chose both specific terms within such close proximity demonstrates that each term has a separate and distinct meaning, i.e., the term “country” does not depend on the existence or functionality of a government, but the term “government of the country,” used in the provision addressing acceptance, does encompass a “government.” Furthermore, the position of the Secretary and Attorney General is supported by the Supreme Court's decision in Smith v. United States, 507 U.S. 197 (1993). While construing the Federal Tort Claims Act (FTCA) in Smith, the Court noted that the “commonsense meaning” of the term “country” is “‘[a] region or tract of land.’” Id. at 201. Indeed, the Court held in that case that Antarctica is a “country” within the meaning of the FTCA “even though it has no recognized government.” Id. The Court in Smith did acknowledge “that this is not the only possible interpretation of the term, and it is therefore appropriate to examine other parts of the statute before making a final determination.” Id. As stated above, examining the other parts of section 241(b) of the Act mandates the conclusion that “country” does not depend on the existence or functionality of a government; if it did, other provisions within the same subsection would be rendered meaningless, a result to be avoided in statutory construction. See, e.g., Dole Food Co. v. Patrickson, 538 U.S. 468, 477 (2002) (“‘a statute must, if possible, be construed in such fashion that every word has some operative effect”’) (quoting United States v. Nordic Village, Inc., 503 U.S. 30, 36 (1992)); TRW, Inc. v. Andrews, 534 U.S. 19, 30 (2001) (“[w]e are “reluctant to treat statutory terms as surplusage in any setting”') (quoting Duncan v. Walker, 533 U.S. 167, 174 (2001)).

For these reasons, the Secretary and Attorney General reject the commenters' suggestion that the term “country” in section 241(b)(2) of the Act requires the existence or functionality of a government. Accordingly, the regulations in this area are being promulgated as proposed.

Several commenters generally contended that section 241(b)(2) of the Act, 8 U.S.C. 1231(b)(2), requires acceptance by the government of a country in all circumstances, and that, absent acceptance, the Executive Branch's authority is legally circumscribed. As discussed in more detail below, the so-called “acceptance requirement” is not a requirement that precludes the Executive Branch from exercising its authority; in fact, there is no general “acceptance requirement” that precludes action as a legal matter, with the exception contained in section 241(b)(2)(E)(iv) of the Act, where the acceptance itself provides the only connection between the alien and the removal country at issue. Instead of labeling the general acceptance language in section 241(b)(2) of the Act as a general “acceptance requirement,” it is more appropriately labeled the “acceptance exception,” in that parts of section 241(b)(2) of the Act release the Secretary of Homeland Security from the mandatory language of “shall remove” if certain circumstances are not present, one of those circumstances being acceptance by the government of a country. In this regard, there is a difference between a legal requirement that precludes the Executive Branch from exercising its authority generally, which is what the commenters' proposed interpretation would create, versus a consideration that enables the Executive Branch to carry out its obligations under the Act, while continuing to balance the foreign policy considerations of its actions. Additionally, the question of whether removal should be effectuated absent acceptance by the government of the removal country is a separate inquiry; that question has no bearing on whether the Secretary of Homeland Security is authorized to do so.

In construing the Act, the Supreme Court repeatedly has held itself “bound to assume that the legislative purpose is expressed by the meaning of the words used.” INS v. Cardozo-Fonseca, 480 U.S. 421, 431 (1987) (internal quotations omitted). That approach is consistent with the Court's more general admonition that “[t]he plain meaning of legislation should be conclusive, except in the ‘rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.’ ” United States v. Ron Pair Enters. Inc., 489 U.S. 235, 242 (1989) (alteration in original); see also Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-54 (1992) (“[A] legislature says in a statute what it means and means in a statute what it says there.”). As set forth below, except for section 241(b)(2)(E)(vii) of the Act, the language of section 241(b)(2) of the Act does not require, as a legal prerequisite, that acceptance be obtained before removal of an alien.

First, section 241(b)(2)(A)-(C) of the Act, which is generally the first step in the country-of-removal inquiry, addresses removal to a country designated by the alien. In pertinent part, those provisions state that the Secretary of Homeland Security “shall remove” an alien to the country designated by the alien (section 241(b)(2)(A) of the Act), but that the Secretary “may disregard a designation” if “the government of the country is not willing to accept the alien into the country” (section 241(b)(2)(C)(iii) of the Act) or if the Secretary “decides that removing the alien to the country is prejudicial to the United States” (section 241(b)(2)(C)(iv) of the Act). It is important to note that within this provision, Congress employed both the mandatory term “shall” and the permissive term “may.” The use of both these words within the same subsection is highly instructive. See, e.g., United States v. Rodgers, 461 U.S. 677, 706 (1983) (“The word ‘may,’ when used in a statute, usually implies some degree of discretion.”); Lopez v. Davis, 531 U.S. 230, 241 (2001) (attaching significance to the fact that “Congress’ use of the permissive ‘may’ in [18 U.S.C.] 3621(e)(2)(B) contrasts with the legislators' use of a mandatory ‘shall’ in the very same section”); Anderson v. Yungkau, 329 U.S. 482, 485 (1947) (“[W]hen the same [Federal Rule of Civil Procedure] uses both ‘may’ and ‘shall,’ the normal inference is that each is used in its usual sense—the one being permissive, the other mandatory.”). Accordingly, the statute mandates that the Secretary “shall remove” an alien to the country designated, but also provides that the Secretary “may” disregard the designated country of removal if the government of the country is not willing to accept the alien. Nowhere does it require that the Secretary must, as a legal matter, disregard that designation. Far from containing an “acceptance requirement,” section 241(b)(2)(C)(iii) of the Act contains an “acceptance exception” to removal, enabling the Secretary to disregard the designation made by an alien when the government of the country chosen by the alien is not willing to accept the alien, thereby providing the Executive Branch with discretion to act in a manner consistent with its foreign policy. Accordingly, contrary to the commenters' assertion, the first step of the country-of-removal inquiry does not support the conclusion that acceptance is a legal requirement for removal.

Second, section 241(b)(2)(D) of the Act, the second step in the country-of-removal inquiry, also does not, as a legal matter, preclude removal without acceptance. In pertinent part, that provision states that the Secretary “shall remove” the alien to a country of which the alien is a subject, national, or citizen, “unless the government of the country * * * is not willing to accept the alien.” As with section 241(b)(2)(C), that provision does not bar removal without acceptance; it requires removal to any country of which the alien is a subject, national, or citizen, but provides an exception when such a country fails to provide acceptance. Accordingly, section 241(b)(2)(D)(ii) of the Act also does not contain a legal impediment to removal; instead, like the language in section 241(b)(2)(C)(iii), it releases the Secretary from the mandatory language of “shall remove” and preserves the discretion of the Secretary of Homeland Security to act.

Finally, section 241(b)(2)(E) of the Act, the third step in the country-of-removal inquiry, does not support the commenters' position that acceptance by a country is a legal requirement to removal generally. Contrary to the commenters' assertions, neither the structure, history, nor title of section 241(b)(2)(E) of the Act supports the proposition that acceptance is a requirement. Section 241(b)(2)(E) of the Act states that the Secretary “shall remove” the alien to any of seven specified countries or categories of countries. The first six of these are countries with some prior connection to the alien and are defined without any reference to acceptance, including, for example, “[t]he country in which the alien was born,” see section 241(b)(2)(E)(iv) of the Act. The final provision, on the other hand, states: “If impracticable, inadvisable, or impossible to remove the alien to each country described in a previous clause of this subparagraph, another country whose government will accept the alien into that country,” see section 241(b)(2)(E)(vii) of the Act (emphasis added). It is in this last clause, and only in this last clause, that section 241(b)(2) of the Act contains what is appropriately labeled an “acceptance requirement.” Specifically, the wording of this last clause (“another country whose government will accept the alien into that country”) stands in stark contrast to any of the other so-called acceptance provisions discussed above. Additionally, the fact that the only reference to acceptance within section 241(b)(2)(E) of the Act is contained in clause (vii) and clearly absent from the other six clauses demonstrates that there is no general acceptance requirement within section 241(b)(2)(E) of the Act. See Cardozo-Fonseca, 480 U.S. at 432 (quoting Russello v. United States, 464 U.S. 16, 23 (1983)) (“‘Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”’). Not only did Congress include and exclude reference to acceptance within the same statute, it did so within the same subparagraphs of section 241(b)(2)(E) of the Act. Accordingly, the language of section 241(b)(2)(E) of the Act only requires acceptance as a legal prerequisite to removal in clause (vii); it does not require acceptance as a legal prerequisite to removal in clauses (i)-(vi). Additionally, it should be noted that what constitutes acceptance for purposes of the Act is a determination made by the Secretary of Homeland Security.

The commenters' contention that the history of section 241(b)(2)(E) of the Act supports a broad imposition of the acceptance requirement throughout clauses (i)-(vi) of section 241(b)(2)(E) of the Act, where no reference to acceptance exists, is also erroneous. Several commenters state that because sections 241(b)(2)(C)(iii), 241(b)(2)(D)(ii), and 241(b)(2)(E)(vii) of the Act require acceptance, and that because section 241(b)(2)(E) of the Act is an integral part of 241(b) of the Act, “only the most mechanical and contrived reading would assert that the requirement does not apply with equal force” to sections 241(b)(2)(E)(i)-(vi) of the Act. However, as already discussed above, sections 241(b)(2)(C)(iii) and (D)(ii) do not contain an “acceptance requirement,” but an “acceptance exception'; the only subsection within section 241(b)(2) of the Act that contains an acceptance requirement is 241(b)(2)(E)(vii) of the Act. There is nothing “contrived or mechanical” about reading an acceptance requirement only within that subsection. In fact, far from being “contrived or mechanical,” it is what the statute mandates, since Congress included specific words within one subsection but excluded them within the others.

Certain commenters suggest that the undeniably progressive nature of the provisions set forth in section 241 of the Act provides an “indication” that acceptance is required within all subsections of section 241(b)(2)(E) because it would “twist the removal process” if acceptance would be required from a country with the closest connection to the alien, i.e., the country of which the alien is a subject, national, or citizen, but not from countries with more attenuated connections to the alien. The Secretary of Homeland Security and the Attorney General again reiterate that, contrary to the commenters' assertion, acceptance is not generally required within section 241(b)(2) of the Act. For the reasons already discussed, there is only one acceptance requirement within section 241(b)(2) of the Act, and it is found at section 241(b)(2)(E)(vii) of the Act. Accordingly, the progressive nature of section 241(b)(2) of the Act, in terms of providing steps for determining the country of removal, has no bearing on acceptance.

Some commenters also proposed that the heading of section 241(b)(2)(E) of the Act indicates that acceptance is required in all circumstances. Commenters state that the change of the heading from “other countries” to “additional removal countries” indicates congressional intent that the countries captured by section 241(b)(2)(E) of the Act be different from the previous countries. However, the title of the section—Additional Removal Countries—is not accurately described as imposing an acceptance requirement not otherwise contained in the text of the provision. Commenters' statement correctly alludes to the proposition that the “title of a statute and the heading of a section” are “tools available for the resolution of doubt about the meaning of a statute.” Almendarez-Torres v. United States, 523 U.S. 224, 234 (1998); but see INS v. St. Cyr, 533 U.S. 289, 308-309 (2001) (noting that “title alone is not controlling”); INS v. National Center for Immigrants’ Rights, Inc., 502 U.S. 183, 189 (1991). However, contrary to the commenters' proposition, the fact that headings can be “tools available for resolution of doubt” is not instructive in this case where there is no need to resolve any doubt. The change in the heading from “other” to “additional” cannot overcome the fact that clauses (i) through (vi) of section 241(b)(2)(E) of the Act do not contain any mention of acceptance. There is simply no doubt to resolve in this case.

Finally, some commenters also suggested that section 241(b)(2)(E) of the Act generally requires acceptance by all receiving countries because to find otherwise would lead to “unmanageable” and “absurd” results in that an alien could be removed to the “country from which the alien was admitted to the United States,” under section 241(b)(2)(E)(i) of the Act, without acceptance by the government of that country, even if the country was simply a border country through which the alien was traveling or the country was simply host to a major airline. In this regard, these commenters stated that “[t]he statute did not grant unfettered discretion to the DHS to remove an alien when the agency deemed it possible to do so, and the agency does not have the power to read this authority into the statute.” In fact, the commenters are mistaken. Section 241(b)(2) of the Act simply provides a checklist of sorts outlining the countries to which an alien may be removed. Section 241(b)(2) of the Act, however, does not provide the authority for DHS to remove an alien once that alien is ordered removed; the authority is “ ‘a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control.’ ” Fiallo v. Bell, 430 U.S. 787, 792 (1977) (quoting Shaughnessy v. United States ex. rel. Mezei, 345 U.S. 206, 210 (1953)). Commenters are confusing two different concepts, i.e. , whether particular action is appropriate, as opposed to whether particular action is authorized. There is a difference between the legal authority to act and the discretion to act. The Secretary of Homeland Security is authorized to remove an alien pursuant to sections 241(b)(2)(E)(i)-(vi) of the Act, regardless of any acceptance by the government of the foreign country. Whether it is wise or practical to do so is simply a separate inquiry, not at all related to whether there is authority to do so. As stated in the Notice of Proposed Rulemaking, “the general practice of the Executive Branch is not to attempt to remove an individual under the Act to a country whose government refuses to accept him.” 69 FR at 42904. This general practice is based upon an acknowledgement that it is not generally practical to remove aliens to a country whose government refuses to accept him. However, the practice is based on considerations of foreign policy, nothing more.

Accordingly, the Secretary of Homeland Security and the Attorney General find it unnecessary to amend the proposed rules based on these comments.

Several commenters suggest that there is historical precedent from both the federal courts and the Board of Immigration Appeals (the Board) requiring acceptance. These commenters suggest that Congress “ratified” this acceptance requirement in adopting the current version of section 241 of the Act, 8 U.S.C. 1231. Neither the decisions of the federal courts or the Board support the position that acceptance is a requirement under current section 241(b)(2) of the Act, nor has Congress ratified such interpretation.

The federal court cases cited by some commenters do not support the proposition that these courts have interpreted the removal statute to require acceptance as a legal prerequisite. In fact, most of the cases cited have not specifically considered the issue of whether acceptance was a legal prerequisite. In United States ex rel. Hudak v. Uhl, 20 F.Supp. 928 (N.D.N.Y. 1937), for example, the court stated that “[i]t will be presumed in every case of deportation that the United States immigration authorities have obtained the consent of the native sovereignty to receive the deported alien.” Id. at 930. There was no clear discussion by the court whether its “presumption” was based on a legal prerequisite in the removal provision versus the practical considerations regarding what would occur if an alien is taken to a foreign sovereign and that sovereign refuses to receive the alien. As such, Hudak cannot be said to support the commenters' proposition that acceptance is a legal prerequisite to removal. In Chi Sheng Liu v. Holton, 297 F.2d 740 (9th Cir. 1962), the court noted that the appellant contended that the Act required acceptance before he could be deported. Id. at 743. The court then considered that a letter from the Consul General of the country was sufficient evidence of acceptance. Id. at 744. Because there was an indication of acceptance from the government of the proposed country of removal, there was no need for the court to consider the question of whether that acceptance was a legal prerequisite to removal. Similarly, United States ex rel. Lee Ming Hon v. Shaughnessy, 142 F.Supp 468 (S.D.N.Y. 1956), is a two-paragraph decision, the focus of which is whether a particular document is sufficient proof that the government of the proposed country of removal provided acceptance. There is no discussion regarding whether acceptance is a legal requirement to removal, as opposed to a practical obstacle to removal. Accordingly, these cases do not stand for the proposition that acceptance is a legal requirement to removal. The common thread among the cases involves the practical difficulties in removal where acceptance is lacking, a fact the Executive Branch acknowledged in its Notice of Proposed Rulemaking. See, e.g. , 69 FR at 42904.

In United States ex rel. Tom Man v. Murff, 264 F.2d 926 (2d Cir. 1959), the court did state “we think that deportation * * * is subject to the condition expressed in the seventh subdivision [the predecessor to section 241(b)(2)(E) of the Act]: i.e. , that the ‘country’ shall be ‘willing to accept’ him ‘into its territory.’ ” Id. at 928; see also Amanullah & Wahidullah v. Cobb, 862 F.2d 362 (1st Cir. 1988) (Pettine, J.) (relying on Tom Man for the proposition that acceptance is a requirement and noting that there was communication from the proposed country of removal that the aliens would not be accepted); Lee Wei Fang v. Kennedy, 317 F.2d 180 (D.C. Cir. 1963), cert. denied, 375 U.S. 833 (1963) (citing Tom Man for the proposition that acceptance is a requirement, yet not elaborating whether the requirement was legal or practical, and then focusing on what constituted a country). However, aside from the quoted statement itself, there is no elaboration by the court discussing the reason why it “thought” that deportation was subject to acceptance. Tom Man, and the cases citing it, did not engage in full analysis of the question whether acceptance is a legal prerequisite to removal.

Similarly, the decisions of the Board cited by the commenters do not support their position that acceptance is a legal prerequisite to removal. In Matter of Anunciacion, 12 I&N Dec. 815 (BIA 1968), the Board stated that the question “whether or not a specified country will accept the alien as a deportee is one of comity concerning solely the United States and the country in question.” Id. at 817. Accordingly, Matter of Anunciacion cannot fairly be described as supporting the position that acceptance is a legal, as opposed to practical, prerequisite to removal. Additionally, commenters rely on Matter of Linnas, 19 I&N Dec. 302 (BIA 1985); however, reliance on this case is also misplaced. In Matter of Linnas, the main question before the Board was whether the offices of the Republic of Estonia in New York City constituted a country for purposes of removal and whether the alien could therefore be removed to those offices. The Board answered the question in the negative. Id. at 307. In determining whether the offices in New York City constituted a country, the Board cited Tom Man, as the case arose in that circuit, and found that the language of the removal section “expressly requires, or has been construed to require, that the ‘government’ of a country selected under any of the three steps must indicate it is willing to accept a deported alien into its ‘territory.’ ” Id. However, this statement by the Board was made in the context of deciding what constituted a country for purposes of removal, and the Board was relying on Tom Man, as circuit precedent, in making this statement. The Board did not address the fact that determining what constitutes a country for purposes of removal is one inquiry; the other inquiry being whether acceptance by the government of that country is a legal prerequisite to removal. Accordingly, Matter of Linnas is not instructive on whether acceptance is a legal prerequisite to removal because that issue was not before the Board.

It is with this background regarding the existing case law that some commenters assert that Congress has ratified an acceptance requirement into section 241(b)(2) of the Act. The commenters classify the cases as being “long-standing” and having a “consistent construction” of the predecessors to section 241(b)(2) of the Act. However, as already described, there is no consistent construction that acceptance is a legal prerequisite to removal under section 241(b)(2) of the Act, except for section 241(b)(2)(E)(vii) of the Act, which does contain an acceptance requirement. Accordingly, there was no arguable settled precedent for Congress to ratify.

Accordingly, the commenters are incorrect in their assertion that Congress has ratified an acceptance requirement into the entirety of section 241(b)(2) of the Act, even where the text of the section is clear that no such acceptance is legally required. Therefore, the Secretary and the Attorney General are adopting the proposed rules in this area unchanged.

Some commenters suggest that the proposed rules would render parts of section 241(b)(2) of the Act, 8 U.S.C. 1231(b)(2), superfluous because the rule allows the Department of Homeland Security to remove an alien under section 241(a)(2)(E)(i)-(vi) of the Act to a country which, for example, would be prohibited under section 241(b)(2)(D) of the Act. The commenters' characterization is incorrect as there is no general “prohibition” on removal within section 241(b)(2) of the Act. As discussed at length above, the acceptance provisions within section 241(b)(2) of the Act do not prohibit removal; they simply release the Secretary from the requirement to take action under certain circumstances. The authority to choose not to effectuate a removal under certain circumstances, i.e., the discretion granted to the Secretary, cannot accurately be labeled a “prohibition” as these commenters suggest. Accordingly, parts of section 241(b)(2) of the Act are not rendered superfluous.

Likewise, the claim by certain commenters that section 241(a)(7)(A) of the Act, 8 U.S.C. 1231(a)(7)(A), would be rendered superfluous under these rules is incorrect. In the words of the commenters, “[i]f a receiving country's refusal to accept a deportee could so easily be overridden, this provision, too, effectively would be useless.” There is nothing “useless” or superfluous about this section. Section 241(a)(7)(A) of the Act provides that an alien ordered removed is not eligible for employment authorization unless the Secretary of Homeland Security makes a “specific finding that the alien cannot be removed due to the refusal of all countries designated by the alien or under this section to receive the alien.” If the Secretary makes a “specific finding” that the alien cannot be removed as a practical matter because of lack of acceptance, an alien may obtain employment authorization as appropriate. That is all the section provides, and it does so even though the Secretary is legally authorized to remove aliens under section 241(b)(2) of the Act, except for section 241(b)(2)(E)(vii) of the Act, without the proposed removal country's acceptance. Therefore, this section is not rendered superfluous because it continues to operate notwithstanding these rules.

Some commenters cite to the provisions relating to removal of alien terrorists in section 507(b)(2)(C) of the Act, 8 U.S.C. 1537(b)(2)(C), in the section where they are addressing superfluous provisions, yet they appear to be arguing that section 507(b)(2)(C) of the Act somehow instructs the reading of section 241(b)(2) of the Act without any further elaboration. It is unclear whether commenters are arguing that the alien terrorist removal provisions would be rendered superfluous, or whether the alien terrorist provisions mandate that an acceptance requirement be read into section 241(b)(2) of the Act where none is specifically contained. In any event, either proposition is incorrect. Congress specifically enacted separate provisions to be invoked as appropriate in dealing with alien terrorists. These provisions, detailed in sections 501 through 507 of the Act, include the establishment of a special removal court to handle alien terrorist cases, and create a framework for handling those cases. Accordingly, the provisions relating to removal of alien terrorists contained in sections 501 through 507 of the Act, 8 U.S.C. 1531-1537, are independent of the other provisions dealing with non-terrorist aliens and are not instructive regarding the general removal provisions and certainly do not in any way support the contention that section 241(b)(2) of the Act legally requires acceptance by the proposed country of removal before removal can be effectuated, except as otherwise provided by Congress in section 241(b)(2)(E)(vii) of the Act.

Some commenters also seem to suggest that section 243(d) of the Act, 8 U.S.C. 1253(d), which permits the Secretary of State to discontinue the issuance of visas to citizens, subjects, nationals, and residents of a country if the government of that country refuses to accept their return, is rendered superfluous. This is incorrect, as nothing in these rules affects the Secretary of State's legal authority to discontinue the issuance of visas for individuals of certain countries if those countries do not affirmatively accept their citizens, subjects, nationals, or residents when asked to do so by the United States. The Secretary of State may continue to take such action as he or she deems appropriate under this section notwithstanding the interpretations in these rules. Section 243(d) of the Act simply provides a potential consequence when a foreign government refuses to accept its nationals, citizens, etc. The fact that the Secretary of Homeland Security may choose to remove an alien to a foreign country without acceptance by the government of that country because the Secretary has determined that it is in the foreign policy interests of the United States does not negate the import of section 243(d) in authorizing the Secretary of State to take appropriate action against that country by discontinuing issuance of visas. What sometimes cannot be obtained through diplomacy in terms of obtaining the consent of the government of a foreign country to accept its nationals may sometimes be obtained when some adverse consequence attaches to the actions of the government of the foreign country. As a result, the Secretary of Homeland Security rejects the commenters' claim that the proposed regulations render portions of the Act superfluous.

Some commenters focus on an opinion issued by the Office of Legal Counsel (OLC) of the Department of Justice that they contend supports the position that acceptance by the government of a country is a legal prerequisite to removal. See Memorandum Opinion for the Deputy Attorney General: Re: Limitations on the Detention Authority of the Immigration and Naturalization Service (OLC Feb. 20, 2003) http://www.usdoj.gov/olc/INSDetention.htm. That opinion addressed, inter alia, the circumstances under which a removable alien may permissibly be detained for more than 90 days during the pendency of the removal process. See id. at 15-24. In explaining why the removal process may sometimes take longer than 90 days, the opinion described step three of the sequential process as follows:

Id. at 21 n.11. Importantly, the OLC opinion did not address the specific issue of whether acceptance by the government of a country was a legal prerequisite to removal under section 241(b)(2) of the Act or merely a pragmatic consideration. In fact, the section of the opinion quoted by the commenters is contained in a footnote to the opinion, where the text of the opinion is focusing on the length of time negotiating with different governments may take. As was stated in the Notice of Proposed Rulemaking, “the general practice of the Executive Branch is not to attempt to remove an individual under the Act to a country whose government refuses to accept him.” 69 FR at 42904. Accordingly, the OLC opinion was simply relying on what was the standard practice of the Executive Branch as it related to length of time it might take to negotiate with foreign governments; it was not espousing a legal position that acceptance by a government is required under section 241(b)(2) of the Act. In this rule, it is the Attorney General who is construing the legal interpretation of the Act on this particular issue (an issue which was not the focus of the OLC opinion). The Attorney General is vested with the authority to issue interpretations of the Act, and his determinations are controlling, as provided in section 103(a)(1) of the Act, 8 U.S.C. 1103(a)(1).

Some commenters cite section 243.1(c)(1) of the Immigration and Naturalization Service Operations Instructions for the following statement: “deportation cannot be effected until travel documentation has been obtained.” Based on this statement in the operating instructions, commenters contend that acceptance is generally required under section 241(b)(2) of the Act. However, agency operating instructions provide guidance to its employees and do not have the force and effect of law. See, e.g., Haitian Refugee Center v. Baker, 953 F.2d 1498, 1512 (11th Cir.), cert. denied, 502 U.S. 1122 (1992); Perales v. Casillas, 903 F.2d 1043, 1051 (5th Cir. 1990) (quoting Dong Sik Kwon v. INS, 646 F.2d 909, 918-19 (5th Cir. 1989)); see also United States v. Caceres, 440 U.S. 741 (1979) (noting that Internal Revenue Service Manual did not create enforceable rights warranting suppression of evidence obtained in violation of Manual). The operations instructions contain guidance for line officers; they are not indicative of agency authority generally. Accordingly, commenters' reliance on this 10-word phrase within the operating instructions dealing with travel documentation does not support the proposition that acceptance is a legal requirement under section 241(b)(2) of the Act. Indeed, as the Secretary of Homeland Security has already recognized, “the general practice of the Executive Branch is not to attempt to remove an individual under the Act to a country whose government refuses to accept him.” 69 FR 42904. Since it is not the general practice of the Executive Branch to do so, and since acceptance can be demonstrated by providing travel documentation, this operating instruction is not inconsistent with the fact that acceptance is not a legal requirement to removal, but a practical one. Additionally, this 10-word phrase within the operating instruction does not create an enforceable right that does not otherwise exist in the statute itself. Therefore, the agency operating instructions do not support the commenters' position that acceptance is generally required.

Certain commenters suggested that human rights concerns preclude the United States from returning aliens to countries without functioning governments, as could occur under the proposed rules. This proposition by commenters would eviscerate the specific provisions within the Act and the regulations that provide for protection under certain circumstances and would create a separate protection provision flowing solely from customary international law.

The Act and regulations provide various mechanisms whereby aliens can seek protection from removal. Specifically, an alien present in the United States may apply for asylum if he or she establishes a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, see sections 101(a)(42) and 208 of the Act, 8 U.S.C. 1101(a)(42), 1158. Similarly, an alien may apply for withholding of deportation to a particular country under section 241(b)(3)(A) of the Act, 8 U.S.C. 1231(b)(3)(A), if he or she establishes that it is more likely than not that he or she will be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion. Additionally, the regulations implementing the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (Convention Against Torture), provide protection, in the form of withholding of removal or deferral of removal, if an alien is more likely than not to be tortured if removed to the proposed country of removal. 8 CFR 208.16(c)(3), 208.17(a); see Convention Against Torture, S. Treaty Doc. No. 100-20 (1988), 23 I.L.M. 1027 (1984), approved by the United States Senate Oct. 28, 1990, 136 Cong. Rec. 36625 (1990). Except for deferral of removal under the Convention Against Torture under 8 CFR 208.17(a), however, these provisions also exclude aliens from seeking protection under certain circumstances. For example, section 208(b)(2) of the Act lists exceptions for aliens seeking asylum; section 241(b)(3)(b) of the Act lists exceptions for aliens seeking withholding of removal; and 8 CFR 208.16(d)(2) lists exceptions for aliens seeking withholding of removal under the Convention Against Torture.

Additionally, section 244 of the Act, 8 U.S.C. 1254a, provides temporary protected status for nationals of a foreign state if the Secretary of Homeland Security “finds that there is an ongoing armed conflict within the state” and returning aliens to the state “would pose a serious threat to their personal safety,” or “there exist extraordinary and temporary conditions in the foreign state that prevent aliens who are nationals of the state from returning to the state in safety, unless the [Secretary of Homeland Security] finds that permitting the aliens to remain temporarily in the United State is contrary to the national interest of the United States.” However, section 244(c)(2) of the Act also excludes certain aliens from temporary protected status.

These provisions demonstrate that Congress provided for protection from removal in specific circumstances and, even when protection is available, excluded certain aliens from obtaining such protection. The commenters' general assertions that international law prohibits removal of aliens to a country without a functioning government, notwithstanding an alien's inability to qualify for protection under any or the provisions of the Act or regulations mentioned above, are misplaced because it would create obligations for the United States that are not cognizable in domestic courts. “Several times, indeed, the Senate has expressly declined to give the federal courts the task of interpreting and applying international human rights law, as when its ratification of the International Covenant on Civil and Political Rights declared that the substantive provisions of the document were not self-executing. These reasons argue for great caution in adapting the law of nations to private rights.” Sosa v. Alvarez-Machain, 542 U.S._124 S.Ct. 2739, 2763-64 (No. 03-339, June 28, 2004) (citing 138 Cong. Rec. 8071 (1992)). For example, article 3 of the Convention Against Torture, is often relied upon for the requirement that the United States may not remove an individual to a country where it is more likely than not that the individual will be tortured. However, the Convention Against Torture is not self-executing, as the United States Senate made clear in its reservations, understandings, declarations, and provisos contained in its resolution of ratification of the Convention Against Torture. The Senate required separate implementing legislation and regulations. Regulations implementing the Convention were adopted pursuant to a congressional directive in section 2242 of the Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. 105-277, 112 Stat. 2681-761, 2681-822. See 64 FR 8478, 8488 (February 19, 1999). Thus, the protection afforded by the Convention Against Torture, cognizable in domestic courts, is contained in the implementing legislation and regulations. General reference to international law does not create more “law” in this area than was otherwise specifically domestically authorized and implemented.

Accordingly, statutory and regulatory provisions provide protection to aliens as appropriate; customary international law cannot be said to provide additional rights cognizable in domestic courts than are already provided under domestic law. Therefore, the Secretary and the Attorney General will not modify the proposed regulations in response to this comment.

Some commenters suggest that the proposed rule raises serious foreign policy concerns because nothing in the rule prohibits DHS from removing aliens to a country over the country's objection. In so doing, these commenters reference the norm of customary international law of sovereign equality. The commenters fail to recognize, however, that the rule does not need to address, nor is it the place to address, foreign policy considerations such as sovereign equality. As stated in the Notice of Proposed Rulemaking, the “general practice of the Executive Branch is not to attempt to remove an individual under the Act to a country whose government refuses to accept him.” 69 FR at 42904. The commenters, while acknowledging this statement in the Notice of Proposed Rulemaking, indicate that nothing in the Notice specifically prohibits the Executive Branch from doing so. Commenters are correct that nothing in the rule prohibits the Executive Branch from doing so because nothing in the Act prohibits the Executive Branch from doing so, and foreign policy considerations, which are entrusted to the Executive Branch, do not compel reading such a prohibition into the Act.

The Executive Branch is vested with the discretion to act in the foreign policy interests of the United States. As the Supreme Court has stressed repeatedly, the right of the Executive Branch to remove aliens “stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation.” United States ex rel. Knauff v. Shaughnessy , 338 U.S. 537, 542 (1950). The “power to expel or exclude aliens” is “a fundamental sovereign attribute exercised by the Government's political departments.” Fiallo v. Bell , 430 U.S. 787, 792 (1977). As stated in the Notice of Proposed Rulemaking, “[t]hese considerations apply with special force to immigration issues arising under the Act involving foreign countries that are either hostile, dysfunctional, or lack the capacity to exercise their sovereign authority. In particular, in exercising authority to remove aliens under the Act, the Executive Branch has the responsibility to assess,” and is in the best position to assess, the foreign policy implications of its actions. 69 FR at 42906. Therefore, sovereign equality is an issue for the Executive Branch to determine; it does not create a private right of action nor does it suggest, much less compel, that the authority of the Executive Branch to effect removals to a particular country over that country's objection is in any way affected as a matter of domestic law cognizable in domestic courts.

Some commenters state that an alien has a due process right to know the country to which he or she will be removed during the removal hearing. These commenters note that choosing the country of removal has due process implications to the extent that the proposed country or countries of removal may affect an alien's decision to apply for asylum, withholding of removal under section 241(b)(3) of the Act, 8 U.S.C. 1231(b)(3), and protection under the Convention Against Torture. Accordingly, these commenters request that the proposed rule be modified to “protect the rights of asylum applicants and those fearing persecution.”

The Secretary and Attorney General find it unnecessary to amend the proposed rule in response to this comment. In this context, it is important to differentiate between asylum, withholding of removal under section 241(b)(3) of the Act, and protection under the Convention Against Torture in discussing what protection is available to aliens. Under section 101(a)(42) of the Act, 8 U.S.C. 1101(a)(42), an alien may apply for asylum if he or she has been persecuted, or has a well-founded fear of persecution, from his or her country of nationality or the country where he or she last habitually resided. An alien in the United States may apply for asylum regardless of whether removal proceedings are pending and regardless of the country or countries designated for removal. By contrast, an alien may apply for withholding of removal under section 241(b)(3) of the Act or protection under the Convention Against Torture under 8 CFR 208.16(c)(2), 208.17(a) to prevent removal only to a specific country or countries. Accordingly, the proposed country of removal does not in any way affect an alien's ability to apply for asylum. Therefore, in discussing protection claims in the next few paragraphs, the Secretary of Homeland Security and the Attorney General will be referring to withholding of removal under 241(b)(3) of the Act and protection under the Convention Against Torture, as these are specific to the proposed country of removal, but will not be referring to asylum since it is not dependent upon the proposed country of removal.

In terms of arriving aliens who are covered under section 241(b)(1) of the Act, each potential country of removal can be identified during the removal hearing, except for section 241(b)(1)(C)(iv) of the Act, where the alien may be removed to “[a] country with a government that will accept the alien into the country's territory.” Similarly, for aliens covered under section 241(b)(2) of the Act, each potential country of removal can be identified during the removal hearing, except for section 241(b)(2)(E)(vii) of the Act, where the alien may be removed to “another country whose government will accept the alien into that country.” Thus, an alien will have the opportunity to apply for protection as appropriate from any of the countries that are identified as potential countries of removal under section 241(b)(1) or (b)(2) of the Act. In this respect, the Secretary and Attorney General are aware of the cases cited by the commenters wherein the potential countries of removal were not all specifically named and where the aliens were not afforded the opportunity to apply for protection as appropriate from those countries. See, Kossov v. INS , 132 F.3d 405 (7th Cir. 1998); Kuhai v. INS , 199 F.3d 909 (7th Cir. 1999); but see Andriasian v. INS , 180 F.3d 1033, 1041 (9th Cir. 1999) (wherein the agency agreed that alien was entitled to remand where potential country of removal was not designated until the end of the removal hearing). It is important to note, however, that there are cases where protection claims from more than one country are identified and considered at the removal hearing. See, e.g., Ambartsoumian v. Ashcroft , 388 F.3d 85 (3rd Cir. 2004). As discussed in the Notice of Proposed Rulemaking, all parties in the removal proceeding share responsibility for ensuring that the record identifies the countries to which the alien may be removed where removal is premised upon some previous connection to that country. 69 FR at 42908. Indeed, 8 CFR 1240.10(f), as amended by this rule, requires that immigration judges identify for the record the countries to which an alien may be removed. Accordingly, except for removals pursuant to sections 241(b)(1)(C)(iv) or 241(b)(2)(E)(vii) of the Act, an alien will know at the time of the removal hearing all of the potential countries of removal and may apply for protection from the country or countries as appropriate. Any protection claims will then be addressed as part of the removal hearing, which itself provides the process that is due.

The Secretary does acknowledge that identification of a removal country under sections 241(b)(1)(C)(iv) or 241(b)(2)(E)(vii) of the Act, where removal will be to a country with no connection to the alien other than a determination by the Secretary of Homeland Security that the country is willing to accept the alien, will likely not occur until after the removal proceeding is concluded. Importantly, the vast majority of removals are to countries with which the alien has some connection and for which the alien would have had ample opportunity to apply for protection as necessary. To the extent that removal will occur under section 241(b)(1)(C)(iv) or 241(b)(2)(E)(vii) of the Act, the Executive Branch will identify the particular country and then assess whether the government of the proposed country of removal is willing to accept the alien. In the exercise of its functions as it relates to removal under either of these sections, the Executive Branch, through the Secretary of Homeland Security and the Secretary of State, is aware of the relevant law as it relates to the protection of aliens being removed to any particular country. Cf. 22 CFR. 95.3 (implementing the Convention Against Torture in extradition cases and providing that allegations relating to torture will be reviewed by appropriate “policy and legal offices”). In appropriate circumstances, DHS may agree to join motions to reopen that would otherwise be barred by time and number limitations. See 8 CFR 1003.2(c)(3)(iii), 1003.23(b)(4)(iv).

Certain commenters suggested that existing regulations are not consistent with the approach taken in these rules. The commenters correctly note that with these rules, DHS is amending its regulations to reflect its interpretation of the Act. As a result of these amendments, DHS's regulations will become uniform and consistent with its interpretation of the Act.

Commenters also suggested that the language of 8 CFR 241.4(g)(2) and (3) are in conflict with the interpretation of the Act, as set forth in these regulations. As currently written, 8 CFR 241.4(g)(2) directs the local United States Immigration and Customs Enforcement Detention and Removal Office of the Department of Homeland Security responsible for an alien's case to attempt to secure travel documents for an alien, and to elevate the case to headquarters in the event that the local office is unable to secure such documents. Section 241.4(g)(3) discusses how the status of travel documents should be considered as part of a custody determination. The fact that regulations, in the section dealing with travel documents, state that the agency should attempt to obtain travel documents, and that availability of travel documents is a relevant factor in the custody determination, is not inconsistent with these rules. Because the Executive Branch does not generally “attempt to remove an individual under the Act to a country whose government refuses to accept him,” 69 FR at 42904, there is nothing inconsistent about regulations where the district director is instructed to “undertake appropriate steps to secure travel documents.” Nothing in the two regulations cited by the commenters prohibit the Secretary of Homeland Security from effectuating a removal absent those travel documents; they simply incorporate the standing practice that removals will not generally occur if the government of the proposed country of removal refuses to accept the alien. To the extent that issuance of a travel document is but one of many methods employed by the Secretary of Homeland Security to determine that the country does not refuse to accept the alien, the two regulations are nothing more than a realization of the practical aspects of removal. Accordingly, in this context, commenters again mistake the difference between the practical aspects of removal and the legal authority by which to effectuate those removals.

The Departments were also asked by one commenter what the phrase “zone of interest” meant as used in the preamble to the proposed regulations. See 69 FR at 42906. This phrase is discussed in detail in footnote 2 of the preamble to the proposed regulation, and the Secretary and Attorney General decline to address further the meaning of the phrase at this time.

An additional commenter suggested that these regulations were part of the DHS effort to streamline expedited removal. These rules only address the countries to which an alien may be removed after the alien has been ordered removed; they do not affect the expedited removal procedures. The Secretary does note, however, that the authority to initiated expedited removal proceedings has recently been expanded. See Notice Designating Aliens for Expedited Removal, 69 FR 48877 (August 11, 2004) (authorizing expedited removal proceedings for aliens present in the United States without having been admitted or paroled, who are encountered within 100 miles of the border, and who cannot establish that they have been physically present in the United States continuously for the preceding fourteen days); Notice Designating Aliens Subject to Expedited Removal Under Section 235(b)(1)(A)(iii) of the Immigration and Nationality Act, 67 FR 68924 (November 13, 2002) (authorizing expedited removal proceedings for certain aliens who arrive in the United States by sea, who are not admitted or paroled, and who have not been continuously physically present in the United States for the preceding two years).

Some commenters generally alleged that some of the factual background provided in the Notice of Proposed Rulemaking was irrelevant. The Secretary of Homeland Security and the Attorney General disagree that the factual background was irrelevant, as it was provided to assist the public in understanding the purpose and scope of this rule.

One commenter argued that the statutory limitations on motions to reopen in section 240(c)(6)(C)(ii) of the Act reflect Congress's intent to give legal effect to an immigration judge's designation of a country for removal. Accordingly, the commenter argues that the restrictions on motions to reopen do not permit removal of an alien to a third county not named by the immigration judge. The commenter further argues that at a minimum, Justice should modify 8 CFR 1003.2 and 1003.23 to account for changes in the country of intended removal. Justice disagrees with this commenter and declines to accept the proposed changes. Contrary to the commenter's claim, current immigration law provides the United States with the authority to remove aliens to countries other than those designated by an immigration judge. For aliens who have not made a formal entry into the United States, the alien may be removed to any country that satisfies the criteria listed in section 241(b)(1) of the Act, and for all other aliens, the alien may be removed to any country that satisfies the criteria listed in sections 241(b)(2)(C), (D), and (E) of the Act, without approval from an immigration judge. See also 8 CFR 1240.10(g) (recodified in 8 CFR 1240.12(d)). Additionally, for those aliens who wish to raise new issues regarding the designated country of removal, current law already provides a mechanism for reopening their cases. When appropriate, DHS may agree to waive the time and numerical limits on an alien's right to file a motion to reopen, 8 CFR 1003.2(c)(3)(iii), 1003.23(b)(4)(iv), or the immigration judge or the Board of Immigration Appeals may reopen the case sua sponte, 8 CFR 1003.2(a), 1003.23(b)(1).

One commenter addressed a portion of the Justice regulation relating to 8 CFR 1241.8, suggesting that the word “may” should be changed to “shall” in order to more accurately reflect the existing requirement in the cross-referenced section at 8 CFR 241.8. However, the Department of Justice has decided to defer making any revisions to section 1241.8, pending further consideration, and accordingly this rule makes no change in the existing language of 8 CFR 1241.8 at this time.

Similarly, DHS and Justice have decided to defer making revisions to 8 CFR 236.1 and 1236.1, pending further consideration, and accordingly this rule makes no change in the existing language of 8 CFR 236.1 and 1236.1 at this time.

Finally, Justice received several miscellaneous comments from one commenter who supported sending illegal immigrant lawbreakers back to a country of the immigration judge's choosing immediately, asserted that the United States has too many illegal immigrants (which causes taxes to go up), and that it is time we seal our borders. As discussed above, the Department declines to expand upon the authority provided by Congress in sections 241(b)(1) and (2) of the Act to allow an immigration judge to send an alien back to a country of the judge's choosing. The Department of Justice, DHS, and other agencies of the United States government vigorously enforce American immigration laws against illegal immigration, and these rules are only one aspect of the effort to ensure that the United States is able to effectuate the removal of aliens who are deportable or inadmissible. The Department of Justice believes that the remaining proposals suggested by this commenter fall outside the scope of this rule and will not be addressed.

The Secretary of Homeland Security hereby amends regulations of the Department of Homeland Security to clarify the authority for removal of aliens to specific countries in the exercise of discretion under section 241 of the Act. The Secretary is exercising his authority under sections 103 and 241 of the Act (8 U.S.C. 1103, 1231). The Attorney General hereby amends the regulations of the Department of Justice to clarify the authority and procedures before immigration judges in designating countries of removal in the record of proceedings, to clarify the scope of immigration judge orders of removal from the United States, and to provide further guidance in interpreting the Act. The Attorney General is exercising his authority under section 103(a)(1) and (g) of the Act, and his authority under 28 U.S.C. 503, 509-510.

The Secretary and the Attorney General, in accordance with 5 U.S.C. 605(b), have reviewed their respective rules and, by approving them, certify that these rules do not have a significant economic impact on a substantial number of small entities. The rules affect only individual aliens and government agencies.

These rules will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

Neither of these rules is a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 804. Neither rule will result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

These rules have been drafted and reviewed in accordance with Executive Order 12866, section 1(b), Principles of Regulation. The Departments have determined that their respective rules are significant regulatory actions under section 3(f) of Executive Order 12866, Regulatory Planning and Review. Accordingly, these rules have been submitted to the Office of Management and Budget for review.

There are no additional costs to the Department of Justice in the implementation of the rule other than the minimal amount of time required for immigration judges to explain the possibility that an alien may be removed to a country other than designated. Similarly, there are no additional costs of the Department of Homeland Security other than in the small number of cases in which execution of an order of removal will be to a country other than as previously designated, in which officials of DHS will be required to ensure compliance with United States law and international obligations. There are no costs to individuals.

The benefits of the rule lie in the clarification of the law and the elimination of delay in effecting a small number of removal orders, but these benefits are not quantifiable. In some cases, the individual alien will already be in the custody of DHS and, therefore, reducing the time required to execute an order of removal will reduce the costs of detaining that alien.

These rules 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. Therefore, in accordance with section 6 of Executive Order 13132, the respective Departments have determined that these rules do not have sufficient federalism implications to warrant a federalism summary impact statement.

These rules meet the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform.

These rules do not impose any new reporting or recordkeeping requirements under the Paperwork Reduction Act.

The substance of these special conditions has been subject to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. For this reason, and because a delay would significantly affect the certification of the airplane, which is imminent, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon issuance. We are requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment.

We invite interested persons to participate in this rulemaking by submitting written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.

We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning these special conditions. The docket is available for public inspection before and after the comment closing date. If you wish to review the docket in person, go to the address in the ADDRESSES section of this preamble between 7:30 a.m. and 4 p.m., Monday through Friday, except Federal holidays.

We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions in light of the comments we receive.

If you want the FAA to acknowledge receipt of your comments on these special conditions, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.

On August 1, 1996, Raytheon Aircraft Company, 9709 E. Central, Wichita, KS 67201, applied for a type certificate for their new Model 4000 Horizon airplane and reapplied on May 31, 2001. The Model 4000 Horizon is a twin-engine, pressurized executive jet airplane with standard seating provisions for 10 passenger/crew and allowance for baggage and optional equipment. This airplane will have a maximum takeoff weight of 36,000 pounds and will have two aft-mounted Pratt & Whitney PW 308A engines.

Under the provisions of 14 CFR 21.17, the Raytheon Aircraft Company must show that the Model 4000 Horizon airplane meets the applicable provisions of part 25, effective February 1, 1965, as amended by amendment 25-1 through amendment 25-101.

If the Administrator finds that the applicable airworthiness regulations ( i.e. , 14 CFR part 25) do not contain adequate or appropriate safety standards for the Raytheon Model 4000 Horizon airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the Raytheon Model 4000 Horizon must comply with the fuel vent and exhaust emission requirements of part 34, effective September 10, 1990, as amended by any amendment in effect on the date of certification, and the noise certification requirements of part 36, effective December 1, 1969, as amended by any amendment in effect on the date of certification, and the FAA must issue a finding of regulatory adequacy pursuant to § 611 of Public Law 92-574, the “Noise Control Act of 1972.”

Special conditions, as defined in § 11.19, are issued in accordance with § 11.38 and become part of the type certification basis in accordance with § 21.17.

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

The Raytheon Model 4000 offers interior arrangements, which include single-occupant side-facing seat installations. One arrangement includes an aft LH toilet installation, which will be approved for occupancy during taxi, takeoff, and landing. The belted toilet seat is a single-occupant side-facing seating system located directly behind the LH aft pocket door partition. It consists of a toilet assembly, toilet cabinet, forward partition, contact pad, and restraint system (lap belt).

Section 25.785(b) requires that “each seat * * * at each station designated as occupiable during takeoff and landing must be designed so that a person making proper use of these facilities will not suffer serious injury in an emergency landing as a result of the inertia forces specified in §§ 25.561 and 25.562.” Additionally, § 25.562 requires dynamic testing of all seats occupied during takeoff and landing. Side-facing seats, however, are considered a novel design for transport category airplanes that include amendment 25-64 in the certification basis, and were not considered when those airworthiness standards were established. Hence, the existing regulations do not provide adequate or appropriate safety standards for occupants of side-facing seats. In order to provide a level of safety that is equivalent to that afforded occupants of forward and aft-facing seats, additional airworthiness standards, in the form of special conditions, are necessary.

The following special conditions are considered to provide occupants of single occupancy side-facing seats a level of safety that is equivalent to that afforded occupants of forward and aft-facing seats. These special conditions supplement part 25 and, more specifically, they supplement §§ 25.785 and 25.562.

As discussed above, these special conditions are applicable to the Raytheon Model 4000 Horizon. Should Raytheon Aircraft Company apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well under the provisions of § 21.101.

This action affects only certain novel or unusual design features on the Raytheon Model 4000 Horizon airplane. It is not a rule of general applicability, and it affects only the applicant who applied to the FAA for approval of these features on the airplane.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) was published in the Federal Register on July 15, 2004 (69 FR 42356). That action proposed to require installation of improved HPT containment hardware on JT8D-209, -217, -217A, -217C, and -219 engines in accordance with Pratt & Whitney Alert Service Bulletin (ASB) No. JT8D A6346, dated September 10, 1998, or Revision 1, dated April 23, 1999, or Revision 2, dated December 1, 1999, or Revision 3, dated May 21, 2004. We published the proposed AD in the Federal Register on July 15, 2004 (69 FR 42356).

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

We provided the public the opportunity to participate in the development of this AD. We have considered the one comment received. The commenter supports the proposal.

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

There are about 2,345 PW JT8D-200 series turbofan engines of the affected design in the worldwide fleet. We estimate that 1,143 engines are installed on airplanes of U.S. registry, and that 280 engines will be affected by this AD. We estimate that 80% of the -217C and -219 engines already have the improved HPT containment hardware installed. We also estimate that no additional labor costs will be incurred when these parts are installed during engine shop visit. Required parts will cost about $19,991 per engine. Based on these figures, we estimate the total cost of the AD to U.S. operators to be $5,597,480.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. 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.

We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA 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 rulemaking action.

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

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

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

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

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

We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES. Include “AD Docket No. 92-ANE-15-AD” in your request.

The FAA proposed to amend 14 CFR Part 39 with an AD for certain Boeing Model 747-100, -100B, -100B SUD, -200B, -200C, -200F, and -300 series airplanes; and Model 747SP and 747SR series airplanes; equipped with Pratt & Whitney JT9D-3 and -7 (except -70) series engines or General Electric CF6-50 series engines with modified JT9D-7 inboard struts. That action, published in the Federal Register on September 29, 2004 (69 FR 58101), proposed to require repetitive detailed inspections of the midspar web of the inboard and/or outboard struts for cracking, disbonding, or buckling; repetitive detailed inspections of the midspar stiffeners for any crack or fracture; related investigative actions; and corrective actions, if necessary.

We provided the public the opportunity to participate in the development of this AD. We have considered the comment that has been submitted on the proposed AD. The commenter, the manufacturer, supports the proposed AD.

We have carefully reviewed the available data, including the comment that has been submitted, and determined that air safety and the public interest require adopting the AD as proposed.

There are about 228 airplanes of the affected design worldwide and 78 airplanes of U.S. registry. The actions will take about 6 to 13 work hours per airplane, at an average labor rate of $65 per work hour. Based on these figures, the estimated cost of the AD for U.S. operators is between $30,420 and $65,910, or between $390 and $845 per airplane, per inspection cycle.

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 safety 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.

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

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

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

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

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this AD. See the ADDRESSES section for a location to examine the regulatory evaluation.

The FAA proposed to amend 14 CFR part 39 with a proposed AD. The proposed AD applies to RR RB211-524 series turbofan engines. We published the proposed AD in the Federal Register on May 18, 2004 (69 FR 28094). That action proposed to require initial and repetitive borescope inspections of the head section and meterpanel assembly of the combustion liner and replacement if necessary, with serviceable parts. That action also proposed a reduction of the inspection intervals of certain RB211-524 engine models that have not been repaired to RR Field Repair Scheme FRS53667/B, and a mandatory terminating action to be completed by a certain date.

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

We provided the public the opportunity to participate in the development of this AD. We received no comments on the proposal or on the determination of the cost to the public. However, we corrected RR Service Bulletin (SB) No. RB.211-71-9670 in Compliance paragraph (q) of this AD to RR SB No. RB.211.-72-9670.

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

There are about 537 RB211-524 series turbofan engines of the affected design in the worldwide fleet. We estimate that 18 engines installed on airplanes of U.S. registry will be affected by this AD. We also estimate that it will take approximately 2.0 work hours per engine to perform the actions, and that the average labor rate is $65 per work hour. Required parts will cost about $228,389 per engine. Based on these figures, we estimate that total cost of the AD to U.S. operators to be $4,113,342.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. 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.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA 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 rulemaking action.

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

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

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

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

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

We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES . Include “AD Docket No. 2004-NE-19-AD” in your request.

The FAA proposed to amend 14 CFR part 39 with an AD for certain Bombardier Model CL-215-6B11 (CL215T variant) and CL-215-6B11 (CL415 variant) series airplanes. That action, published in the Federal Register on November 3, 2004 (69 FR 63968), proposed to require replacing the mounting pad studs of the auxiliary feather pump with new, longer studs, and installing a pressure relief valve.

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

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

The following table provides the estimated costs for U.S. operators to comply with this AD.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. 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.

We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA 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 rulemaking action.

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

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

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

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

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 2002-04-10, amendment 39-12667 (67 FR 9392, March 1, 2002), which is applicable to certain Airbus Model A319 and A320-200 series airplanes, was published in the Federal Register on April 7, 2004 (69 FR 18304). The action proposed to retain the existing requirements for repetitive inspections for loose, missing, or discrepant rivets in specified areas of the door frames of the overwing emergency exits; and measurement of the grip length of all rivets in the specified areas; and corrective action if necessary, which terminates the repetitive inspections. The proposed AD also proposed to add an inspection for correct dimensions of the interior countersinks of the rivet holes, and related corrective action.

We provided the public the opportunity to participate in the development of this AD. We have considered the comments that have been submitted on the proposed AD. The commenters support the proposed AD.

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

This AD affects about 168 airplanes of U.S. registry.

The inspections required by AD 2002-04-10 take about 1 work hour per airplane, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of those inspections is estimated to be $65 per airplane, per inspection cycle.

The new inspection required by this AD takes about 1 work hour per airplane, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of the new inspection on U.S. operators is estimated to be $10,920, or $65 per airplane.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the requirements of this AD, 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.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. 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.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA 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 rulemaking action.

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 FAA proposed to amend 14 CFR part 39 with an AD for certain Lockheed Model 1329 series airplanes. That action, published in the Federal Register on July 7, 2004 (69 FR 40821), proposed to require repetitive inspections to detect crack damage in the front spar cap assembly of the lower vertical stabilizer; reworking the spar cap doublers if no crack damage is found during any inspection; and repairing if any crack damage is found during any inspection.

We provided the public the opportunity to participate in the development of this AD. We have considered the comment that has been submitted on the proposed AD.

One commenter contends that the FAA should not classify cracking of the front spar cap assembly of the lower vertical stabilizer as a safety issue. The commenter justifies this statement by saying that we have known about the cracking for over four years, and if it is a true safety issue, we would have addressed it either many years ago, or last year when Lockheed Service Bulletin 329-302, dated July 9, 2003 (for Model 1329-23A, -23D, and -23E series airplanes); and Lockheed Service Bulletin 329II-55-4, dated July 9, 2003 (for Model 1329-25 series airplanes) were published. While the commenter does not explicitly make a request, we infer from its statements that the commenter requests to withdraw the proposed AD. The commenter also asks the following questions:

1. What analysis has been done to show that cracking will not cause a problem until 301 flight hours?

2. Have we been lucky that cracking has not caused safety issues in the last four years?

3. How could cracking possibly affect the rudder? Would the entire tail depart from the aircraft?

We do not agree with the commenter. To withdraw this action would be inappropriate, since we have determined that an unsafe condition exists and that inspections must be conducted to ensure continued safety. We have provided answers to the commenter's questions below:

1. Lockheed Martin Engineering performed damage tolerance analysis (DTA) to establish the inspection intervals for cracking. Based on this data, it has recommended inspection intervals of 300 flight hours for airplanes that have accumulated fewer than 10,000 total flight hours and 150 flight hours for airplanes that have accumulated 10,000 or more total flight hours. We agree with its analysis and the inspection intervals it recommended in Lockheed Service Bulletin 329-302; and Lockheed Service Bulletin 329II-55-4.

2. We have determined that there have not been any serious accidents related to the unsafe condition addressed in this AD because of the small number of Lockheed Model 1329 series airplanes in the U.S. fleet and the low utilization of those airplanes. Also, some operators have already found Model 1329 series airplanes with cracking of the front spar cap assembly of the lower vertical stabilizer and have repaired those airplanes.

3. Cracks in the front spar cap assembly of the lower vertical stabilizer, if allowed to propagate, substantially reduce the structural load capability of the rudder spar. This condition could lead to spar failure. Failure of the rudder spar cap could lead to operational handling problems of the rudder, which could cause loss of control of the airplane.

For clarification, we have revised the definition of a “detailed inspection” in this final rule.

We inadvertently misstated the compliance time for paragraph (g)(2) of this AD and have clarified it accordingly.

We have carefully reviewed the available data, including the comment that has been submitted, and determined that air safety and the public interest require adopting the AD with the changes described previously. We have determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.

This AD affects about 85 airplanes of U.S. registry and 98 airplanes worldwide. The required actions take about 1 work hour per airplane, at an average labor rate of $65 per work hour. No parts are required. Based on these figures, the estimated cost of the AD for U.S. operators is $5,525, or $65 per airplane.

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, Congress charges the FAA 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.

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

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

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

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

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

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

The FAA proposed to amend part 39 of the Federal Aviation Regulations (14 CFR Part 39) with an AD to supersede AD 2004-09-15, amendment 39-13604, (69 FR 24940, May 5, 2004). The existing AD applies to certain EMBRAER Model EMB-135 and EMB-145 series airplanes. The proposed AD was published in the Federal Register on August 4, 2004 (69 FR 47038), and continued to require replacing the nose landing gear wheel nuts and associated inner and outer seals, and reidentifying the landing gear strut. The proposed AD also added an airplane to the applicability and revised a part number for a replacement part.

We provided the public the opportunity to participate in the development of this AD. We have considered the comment that has been submitted on the proposed AD.

The commenter requests that a reference to replacement seal assembly part number (P/N) AEC-68-1498, which was approved as an AMOC for AD 2004-09-15, be included in the proposed AD. The commenter notes that P/N AEC-68-1498 has a parts manufacturer approval and is an FAA-approved replacement assembly for the P/N 68-1498 seal assembly. The commenter contends that P/N AEC-68-1498 should be included in the proposed AD as an approved seal assembly.

The FAA does not agree to include a reference to replacement seal assembly P/N AEC-68-1498 in this final rule. However, we do agree that AMOCs approved previously for AD 2004-09-15, amendment 39-13604, are acceptable as AMOCs for this final rule. We have revised paragraph (i) of this final rule to include the following statement: “AMOCs, approved previously in accordance with AD 2004-09-15, amendment 39-13604, are approved as AMOCs for this AD.”

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

This AD affects about 365 airplanes of U.S. registry.

The actions that are required by AD 2004-09-15, and retained in this AD, take about 1 work hour per airplane, at an average labor rate of $65 per work hour. Required parts will be provided free of charge by the airplane manufacturer. Based on these figures, the estimated cost of the currently required actions for U.S. operators is $23,725, or $65 per airplane.

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.

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

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

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

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

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

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

This amendment to part 97 of the Federal Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs). The complete regulatory description of each SIAP is contained in official FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of the Federal Aviation Regulations (FAR). The applicable FAA Forms are identified as FAA Forms 8260-3, 8260-4, and 8260-5. Materials incorporated by reference are available for examination or purchase as stated above.

The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained in FAA form documents is unnecessary. The provisions of this amendment state the affected CFR (and FAR) sections, with the types and effective dates of the SIAPs. This amendment also identifies the airport, its location, the procedure identification and the amendment number.

This amendment to part 97 is effective upon publication of each separate SIAP as contained in the transmittal. Some SIAP amendments may have been previously issued by the FAA in a National Flight Data Center (NFDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP amendments may require making them effective in less than 30 days. For the remaining SIAPs, an effective date at least 30 days after publication is provided.

Further, the SIAPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

On October 15, 2004, we published a notice of proposed rulemaking entitled, “Quality Assurance and Certification Program for NOAA Hydrographic Products” in the Federal Register (FR 69 FR 61172), and solicited comments. Eight sets of comments were received on this proposed rule and the policy statement that accompanied it. The substance of the comments and the resulting changes made to the regulation are summarized below. Most of the comments were made in the context of a single, specific hydrographic product. However, the Program has been established to accommodate the full range of potential products allowed by the law, which is extremely broad (see “Definitions” under the “Background” section below).

One set of comments stated that the Quality Assurance Program was an inappropriate activity for NOAA, and a number of reasons were listed. In response, NOAA cites the Hydrographic Services Improvement Act of 1998, as amended (codified as 33 U.S.C. 892b), which mandated the establishment of this program. Therefore, NOAA has no latitude in the matter. The comments further suggested that a substantial fee structure would be appropriate for the program. Again, NOAA refers to the enabling legislation that limits the fees NOAA may charge.

Comments were received that, in some instances, NOAA might adopt existing standards or compliance tests for purposes of the Quality Assurance Program. ISO 19379 and the RTCM standard for Electronic Chart Systems were two examples cited. NOAA recognizes this opportunity, and specifically refers to this possibility in paragraphs 2, 5, and 6 of the policy statement. New sections § 996.11(e) and § 996.12(e) have been added to the regulation, and subsequent subsections appropriately renumbered, to insure that this option is available when the program is implemented.

One set of comments stated that § 996.20, “Submission of a hydrographic product for certification,” in which an applicant submits a hydrographic product to NOAA, was unnecessary and burdensome, and that applicants should submit products directly to the compliance testing body. Upon review, it was determined that the submission required by this section is only 4 items of administrative information and should impose little burden on an applicant. However, it serves an important purpose in allowing NOAA to advise applicants on the appropriate standard and version against which to certify; identifying approved compliance testing organizations that are available; and other matters that may aid the applicant or avoid the cost of an inappropriate test. This section of the regulation was left unchanged.

One set of comments asserted that current standards for electronic charts, charting systems, distribution of digital chart data and updates, electronic charting system size and cost, and the support infrastructure had fatal shortcomings. These statements reflect obsolete information, and the writer is referred, for example, to IHO Technical Resolution A3.11—“ENC/SENC Distribution Option,” and to IEC draft standard 62376 “Electronic chart systems (ECS)—Operational and performance requirements, methods of testing, and required test results.” No specific change to the NOAA Quality Assurance Program was proposed with these comments, and none were made.

One set of comments offered that § 996.5, “Alterations,” appeared to permit NOAA to change program regulations without following the Administrative Procedure Act that allows for public comment. NOAA's intent was to follow such procedures in executing this section, but since it is redundant with NOAA's existing authority under the Administrative Procedure Act, the section was deleted from the regulations to eliminate confusion.

One set of comments thought the regulations should contain criteria for the acceptance of testing bodies, and pointed to the Coast Guard's procedures for accepting independent laboratories. § 996.20(4) of the rule was enhanced to include characteristics of such laboratories that were suggested by the commenter, but the procedures used by the Coast Guard were thought to be excessive for the NOAA program and were not added to the rule.

One set of comments objected to that portion of § 996.33, “Acceptance of program by non-Federal entities” which states that “information submitted to NOAA under this Program shall be deemed to be in the public domain, and no representation is made as to the protection of confidential, proprietary or otherwise restricted information.” The comment stated that some products might be the result of proprietary processes that a producing company would not wish disclosed. After careful review of the information submission requirements in the regulation, it was determined that all were of an administrative nature necessary to run the program, and would be unlikely to contain any proprietary information. The one exception might be § 996.23(3), “Audit and decertification of hydrographic products.” A new section, § 996.23(c), was inserted in the regulation, and the subsequent subsections appropriately renumbered, to permit producing companies to not provide information during an audit, but at the risk of decertification due to a resulting lack of information.

One set of comments queried whether foreign governments or foreign companies could participate in the Quality Assurance Program. At this time, NOAA believes the program would be open to foreign governments and foreign companies.

Comments were received that NOAA should reconsider its policy only to certify hydrographic products as meeting a standard rather than certifying them for a particular use. NOAA's policy would mean, for example, that NOAA will not certify products as suitable for a specific purpose such as a backdrop in Automated Identification Systems, or for meeting chart carriage regulations. Under the program, certification only means that there is an adopted NOAA standard, documented compliance tests, and that a product had passed the tests and was compliant with the standard. The comments asserted that such a policy did not meet the requirements of the Hydrographic Services Improvement Act; would not support the mandatory carriage of electronic charts that the Coast Guard has been directed to establish; and that it violates the Regulatory Flexibility Act.

The policy of certifying for “standards-compliance” rather than “use” recognizes that in most cases, NOAA does not have the authority to make the determination of suitability for use. The determination of suitability of a backdrop for an Automated Identification System, for example, lies with the Coast Guard. In other cases, suitability cannot be determined. For example, sport fishing maps (a potential hydrographic product) can be certified as to their data content and data quality, but in no way could NOAA certify that such maps would improve one's catch. Finally, in the specific case of electronic nautical charts, the federal government already provides official products for this purpose, and there are valid safety reasons for maintaining a single, official nautical chart or publication where federal regulations mandate carriage. NOAA's policy was supported in comments from the Hydrographic Services Review Panel, a federal advisory committee of individuals who are especially qualified to advise the Administrator of NOAA on hydrographic program matters, and which was established by Congress. The panel commented that NOAA was correct in not certifying privately made electronic charts as meeting chart carriage regulations. They cited safety as the reason and urged NOAA to continue to maintain the single, official nautical charts where federal regulations mandate chart carriage.

The comments asserting that NOAA's proposed program was not in compliance with the Hydrographic Services Improvement Act did not specify in what way the program was out of compliance. NOAA continues to believe that this policy is in full compliance with the Act. The Act only requires certification against standards promulgated by the Administrator, and makes no statement about certification for a particular use. In fact, an earlier version of the 2002 Hydrographic Services Improvement Act amendments legislation included such a mandate, but the provision was specifically removed before final passage. The Hydrographic Services Review Panel agreed with NOAA, commenting that, in its opinion, the proposed Quality Assurance Program satisfied the statutory requirement established by Congress.

NOAA has provided, however, in a separate rulemaking, a process whereby private companies may download from the NOAA Web site and market exact copies of official NOAA Electronic Navigational Charts (ENC), may reformat and market copies of NOAA ENCs, and may package additional data with those ENCs and market the result. After completing a self-certification process to become distributors, such products would comply with federal chart carriage requirements. (See Certification Requirements for Distributors of NOAA Electronic Navigational Chart/NOAA Hydrographic Products, 69 FR 61165 (Oct. 15, 2004).) This provides additional commercial opportunities for private companies while preserving the safety of navigation.

As to whether NOAA's policy would deny adequate electronic chart coverage to support the mandatory carriage of electronic charts, which the Coast Guard has been directed to implement, NOAA sees no cause for concern, nor was that necessarily the purpose of the Act. NOAA already provides 100 percent coverage of its area of responsibility with official raster navigational charts (one type of electronic chart), 45 percent coverage with official electronic navigational charts (a second type of electronic chart) with completion of the full suite scheduled during 2007, and the U.S. Army Corps of Engineers anticipates completing full coverage of primary and secondary inland river routes with official electronic charts during 2007, thus serving vessels that carry 90 percent of the inland river shipping tonnage. Also, while the Coast Guard must promulgate electronic chart carriage regulations by January 1, 2007, the effective date of those regulations; exactly which vessels are to be covered; and what waivers may be issued is left to their discretion. NOAA, the Corps of Engineers, and the Coast Guard will continue to coordinate closely to insure that electronic chart carriage is not mandated before suitable, official charts are available.

One comment stated that the rule was contrary to the Regulatory Flexibility Act, in that, since the certified products would not be certified as meeting federal chart carriage regulations, a company supplying electronic charts would be unable to broaden their markets as fully as they would if chart carriage certification were part of the process. While NOAA appreciates that carriage-compliance certification could make the benefits of NOAA certification marginally greater, the proposed program still provides a net benefit to all companies wishing to participate. The program supports companies in making and selling electronic charts into the non-regulated market, which is 2 orders of magnitude larger than the regulated market. It supports the use of privately made electronic charts aboard regulated vessels if used as an aid to navigation, rather than as the means of meeting chart carriage regulations. It does not remove a market for privately made electronic charts since they never have been certified for regulatory carriage and do not have that market. Also, because NOAA and the Corps of Engineers give away, at no cost, official electronic charts for meeting carriage regulations, it appears that the portion of the market that the program does not make readily accessible to private companies would be small.

Although NOAA intended from the outset to allow renewal of certification of products under subpart C, it became clear after the regulations were proposed that such a renewal process was not described in the regulations. NOAA considers inclusion of a renewal process to be an essential part and logical outgrowth of the certification process because it allows certified companies the option of renewing their certification for two additional years. The option to renew certifications will allow companies to continue to benefit from the increased sales of their product resulting from “certified” status. Therefore, a renewal process is now included in § 996.22(d) and (e).

Hydrographic products —any publicly or commercially available product produced by a non-Federal entity that includes or displays hydrographic data.

Hydrographic data —information acquired through hydrographic or bathymetric surveying, photogrammetry, geodetic, geospatial, or geomagnetic measurements, tide and current observations, or other methods, that is used in providing hydrographic services.

Hydrographic services —hydrographic services means:

The Hydrographic Services Improvement Act of 1998, as amended by the Hydrographic Services Improvement Act Amendments of 2002 (codified as 33 U.S.C. 892b), directs:

1. IN GENERAL—The Administrator—

A. By not later than 2 years after the date of enactment of the Hydrographic Services Improvement Act Amendments of 2002, shall, subject to the availability of appropriations, develop and implement a quality assurance program that is equally available to all applicants, under which the Administrator may certify hydrographic products that satisfy the standards promulgated by the Administrator under section 303(a)(3) of the Act;

B. May authorize the use of the emblem or any trademark of the Administration on a hydrographic product certified under subparagraph (A); and

C. May charge a fee for such certification and use.

Section 303(a)(3) referenced above states that the Administrator shall “promulgate standards for hydrographic services provided by the administration.”

NOAA will act in accordance with the following policies in fulfilling its Quality Assurance Program responsibilities under the Hydrographic Services Improvement Act.

1. NOAA interprets the Act as primarily intending to stimulate the development of hydrographic products by the private sector. The intent of NOAA's participation in this private sector activity is to provide the public a measure of confidence in the content, quality, and adherence to published standards of the resulting hydrographic products. NOAA interprets the Act in a broad sense. Therefore, “standards” and “quality assurance program” are considered to be generic terms that apply to any means of satisfying the intent of the Act and the intent of NOAA's participation, and that are within NOAA's authorities.

2. Standards, and quality assurance tests and procedures, will preferably be written in collaboration with those affected, not just written and promulgated by NOAA. In some instances, NOAA may adopt an existing standard or quality assurance program, rather than originate one. NOAA may develop standards and quality assurance tests on its own initiative should, for example, it be deemed beneficial for those standards and tests to be established before the appearance of a particular hydrographic product. This approach may be used to stimulate the production of a product that NOAA anticipates would be beneficial.

3. The level to which standards are developed, and to which quality assurance is performed, may vary for different hydrographic products. For example, certification for manufacturers making exact copies of NOAA products may be implemented in a substantially differently manner from the certification of a complex cartographic product. NOAA considers all such “standards” and “certifications” as meeting the intent of the Act.

4. NOAA will work, to the extent practicable, through existing, recognized, standards and certification bodies. This will permit the use of proven methods of developing, documenting, and implementing standards and certification. It will leverage NOAA's resources with those of such bodies. It will provide a more widely accepted result than had NOAA promulgated a standard solely under its own name.

5. NOAA will establish the required Quality Assurance Program for hydrographic products. The Quality Assurance Program will be general procedures that apply to all hydrographic products, and specific tests and procedures that apply to specific hydrographic products. The specific quality assurance tests and procedures for a particular hydrographic product will be based on the standards identified by NOAA or written collaboratively with the affected parties.

6. Certification of a specific hydrographic product under the Quality Assurance Program will be at the option of NOAA. However, certification will be the goal in cases where NOAA decides to write or adopt standards. Any non-Federal entity will be permitted to submit for certification hydrographic products that it asserts are compliant with the NOAA-adopted standards.

7. Certification of products under the Program will mean that the hydrographic product has been found to be compliant with the NOAA-adopted standards for that particular hydrographic product. Certification conveys no express or implied warranty as to the merchantability or fitness for a particular purpose; conveys no express or implied liability on the part of the Government of the United States for the hydrographic products; and conveys no automatic, direct or indirect NOAA endorsement of any product or service. NOAA may audit hydrographic products it has certified, and may decertify hydrographic products based on its findings.

8. NOAA does not intend to write standards and perform quality assurance for every hydrographic product submitted by a non-Federal entity. NOAA will select those deemed appropriate for standards and certification by taking into account:

In general, NOAA does not intend to write standards and certify products that would be used to meet the nautical chart and publications carriage requirements mandated in the Code of Federal Regulations and elsewhere. The federal government already provides official products for this purpose, and there are valid safety reasons for maintaining a single complying product for regulated carriage.

9. Use of the NOAA emblem on certified hydrographic products will require separate written permission. Use of the NOAA emblem must satisfy an interest of the Agency, and must not result in embarrassment to the Agency. If the NOAA emblem is used on products that include other data or products, clear indication will be required as to what is NOAA certified. The inclusion of other data or products will not constitute any endorsement of, or favoritism toward, the other data or products by NOAA.

10. NOAA may charge for its standards and certification activities such sums as may be permitted or required under this Act, or under other statutory authorities.

11. NOAA will operate the Quality Assurance Program in an open and public manner. All standards, tests, and procedures will be publicly available. The public will be given ample notification of activities under the Quality Assurance Program, and will be given ample opportunity to comment and have their comments heard. This opportunity to participate in the Quality Assurance Program and the opportunity to submit hydrographic products for certification under that Program will be equally available to all.

12. In all matters, NOAA will proceed in a manner that maximizes public safety.

NOAA interprets the Act as an attempt to increase the richness of the suite of hydrographic products available to the public, and to ensure the safety of those products. In addition, NOAA interprets the Act to include “services” as meeting the definition of “hydrographic products,” and may choose to write or adopt standards, quality assurance tests and procedures, and to certify appropriate services. Nautical chart updating services, or an electronic navigational chart distribution service, are examples of services that NOAA may consider a “hydrographic product” under the Act.

Other tools within NOAA's authority may be used to meet the purposes of the Act. Depending on the complexity of the hydrographic product, and the amount of risk the public would be exposed to, NOAA reserves the right to select any authorized means of establishing new products and providing a measure of confidence in the content, quality, and adherence to standards for those products. Thus, for purposes of accountability under the Act, NOAA is interpreting “standards,” “quality assurance,” and “certification” as generic terms describing an outcome rather than as a specific formalism or document. For example, some non-Federal entities may intend to reproduce exactly NOAA products such as the Tide Tables. In this case, a “standard” may be a simple agreement, in which the manufacturer agrees to certain standards of copy quality. Further, because the complexity is low, self-certification might be used as the means of compliance testing. Other such authorities available to NOAA that may be used include: business licenses, Agent Agreements, no-cost contracts, self-certification, adoption of industry standards, and the use of existing certification organizations.

Participation by the affected communities in writing standards and compliance tests provides an important guarantee that there is broad need for standards and certification, and that the resulting standard and certification meet the needs of the affected communities. Relevant communities might include: manufacturers, users, regulators, resellers, developers of products that use certified hydrographic products such as datasets, and manufacturers of competing or substitute products.

Participation in the drafting of standards and quality assurance tests and procedures must be substantive and continuing by the designated members of the affected communities. The responsibility will lie with the non-Federal entity submitting a hydrographic product for certification to propose a broadly based group of acknowledged representatives of affected groups, and to secure their participation in the writing of standards and compliance tests.

The Act leaves the certification of hydrographic products as optional for NOAA. The assumption will be, however, that if NOAA undertakes to write standards, it also intends to offer certification of the resulting hydrographic products. In general, NOAA will not undertake to write standards and compliance tests if it can foresee that certification will not be offered.

The decision to offer certification will be made on a case-by-case basis. Circumstances may arise that cause standards to be written, but certification to not be offered. Such circumstances might include:

NOAA does not intend to certify products as suitable for any specific purpose such as for use as a backdrop in Automated Identification Systems. Certification only means that there is an adopted NOAA standard, documented compliance tests; and that the subject hydrographic product has been through the tests and was determined to be compliant with the standard.

NOAA does not interpret the Act as merely a way to provide manufacturers with a marketing claim for their product, or as a means for one manufacturer to differentiate his product from the competition, although that might be a resulting effect. Neither does NOAA interpret the Act as intending to result in “private standards” that may only apply to one manufacturer's product.

In addition, NOAA interprets the Act as intending to call forth new products, not substitutes for official ones being provided by the Administration. In general, NOAA does not intend to write standards and certify products that would be used to meet the nautical chart and publications carriage requirements mandated in the Code of Federal Regulations and elsewhere. The federal government already provides official products for this purpose, and there are valid safety reasons for maintaining a single, official nautical chart or publication where federal regulations mandate carriage, and for not certifying private products for that same purpose. These reasons include:

The presumption will be that use of the NOAA emblem will be permitted if NOAA proceeds with standards and certification. However, the use of the NOAA emblem will be carefully monitored. In particular, it will be monitored to insure that the use of the emblem is not done in a manner to imply the endorsement of any manufacturer; any other data, service, or product that may be packaged with a certified hydrographic product; or any particular use of a certified hydrographic product, and to monitor that its use not bring discredit upon the Agency or the Department.

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

The Chief Counsel for Regulation of the Department of Commerce certifies to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule will not have a significant, economic impact on a substantial number of small entities. The purpose of this rule is to develop and implement a quality assurance program that is equally available to all applicants, under which the Administrator of NOAA may certify hydrographic products that satisfy standards promulgated by the Administrator. “Hydrographic products” are any publicly or commercially available product produced by a non-Federal entity that includes or displays hydrographic data. The Administrator will fulfill this mandate by establishing procedures by which hydrographic products are proposed for certification; by which standards and compliance tests are developed, adopted, and applied for those products; and by which certification may be awarded or denied. NOAA is required to develop this Quality Assurance Program under the authority of 33 U.S.C. 892b.

The Small Business Administration guideline to separate small from large businesses is $4 million for Mapmaking firms and $5 million for Navigational Services to Shipping and Other Support Activities for Water Transportation. NOAA is unable to determine the total number of small entities that will be affected by this rule, as it does not specifically track this type of information, and because the law is extraordinarily broad in the range of hydrographic products that may be submitted for certification. However, based upon general knowledge of the industry, NOAA believes the majority of the entities affected may be small businesses.

Public comments were received on the proposed rule with respect to one proposed hydrographic product—electronic nautical charts intended for use by certain classes of regulated vessels. NOAA's regulations are intended only to certify hydrographic products as meeting a standard rather than certifying them for a particular use. In evaluating the comments, NOAA concluded that in most cases NOAA does not have the authority to make the determination of suitability for use. The determination of suitability of a backdrop for an Automated Identification System, for example, lies with the Coast Guard. In other cases, suitability cannot be determined. For example, sport fishing maps can be certified as to their data content and data quality, but NOAA could not certify that such maps would improve one's catch. Finally, in the specific case of electronic nautical charts, the federal government already provides official products for this purpose, and there are valid safety reasons for maintaining a single, official nautical chart or publication where federal regulations mandate carriage. NOAA's policy was supported in comments from the Hydrographic Services Review Panel, a federal advisory committee of individuals who are especially qualified to advise the Administrator of NOAA on hydrographic program matters, and which was established by Congress. The panel commented that NOAA was correct in not certifying privately made electronic charts as meeting chart carriage regulations. They cited safety as the reason and urged NOAA to continue to maintain the single, official nautical charts where federal regulations mandate chart carriage.

While NOAA appreciates that carriage-compliance certification could make the benefits of NOAA certification marginally greater, the proposed program still provides a net benefit to all companies wishing to participate. The program supports companies in making and selling electronic charts into the non-regulated market, which is 2 orders of magnitude larger than the regulated market. It supports the use of privately made electronic charts aboard regulated vessels if used as an aid to navigation rather than as the means of meeting chart carriage regulations. It does not remove a market for privately made electronic charts since they never have been certified for regulatory carriage and do not have that market. Also, because NOAA and the Corps of Engineers give away, at no cost, official electronic charts for meeting carriage regulations, it appears that the portion of the market that the program does not make readily accessible to private companies would be small. Finally, the number of companies that NOAA estimates might be affected by this certification for “standards compliance” as opposed to certification for “use” with respect to electronic nautical charts is between 3 and 9, not all of which may be small entities. Furthermore, the impact the program has on small entities will be positive. Thus the rule does not appear to rise to the level of causing a significant economic impact on a substantial number of small businesses.

The estimated economic impact to small entities for submitting hydrographic products under this program is not expected to be greater than $600 per product submitted for labor to prepare the application. In addition, it is expected that there will be an average charge of $5,000 per product submitted for compliance testing. This proposed rule is voluntary. Only those applicants who wish to submit hydrographic products and have them certified need apply. NOAA does not believe this cost will hurt small companies, and the estimated costs incurred should be offset through the benefits in increased sales of the product because of its “certified” status or else private companies would not choose to submit their products to this voluntary program.

This rule contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA), which OMB has approved under control number 0648-0507.

The following requirements have been submitted to OMB for approval: 4 hours to prepare the application to have standards and compliance tests developed; 4 hours to prepare the application to have a specific hydrographic product certified; and 4 hours for an estimated, single request for NOAA to reconsider a decision made under the program. These estimates include the time for reviewing instructions, searching existing data sources, writing the application information and/or request for reconsideration, and for sending the applications to NOAA. Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to NOS, (see ADDRESSES ) and by e-mail to David_Rostker@omb.eop.gov , or fax to (202) 395-7285.

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

There are no duplicative, overlapping, or conflicting Federal rules associated with this proposed rule.

Section 6661 of the Code, as in effect before its repeal in 1989, imposed an addition to tax equal to 25 percent of the amount of the underpayment of tax attributable to any substantial understatement of income tax liability for a taxable year. Sections 1.6661-1 through 1.6661-6 of the Income Tax Regulations (26 CFR part 1) provided rules for determining whether an addition to tax should be imposed and for computing the amount of any such addition.

The Omnibus Budget Reconciliation Act of 1989, Public Law 101-239 (103 Stat. 2106), repealed section 6661 effective for tax returns due after December 31, 1989 (determined without regard to extensions) and substituted, in section 6662, an accuracy-related penalty applicable to those returns. The repeal of section 6661 has rendered §§ 1.6661-1 through 1.6661-6 obsolete. This Treasury decision removes those provisions and corrects an obsolete cross reference to section 6661 in the regulations under section 448 (relating to the limitation on the use of the cash method of accounting).

It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. In addition, because these regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Code, this document has been submitted to the Small Business Administration for comment on its impact on small business.

The principal author of this document is Audra M. Dineen of the Office of Associate Chief Counsel, Procedure and Administration (Administrative Provisions and Judicial Practice Division).

The temporary regulations published at 68 FR 40768, July 9, 2003, amended the then-existing regulations to make clear that any fee assessed by the IRS for furnishing copies of documents required to be made publicly available under section 6104 of the Code shall be no more than the fee under the IRS' Freedom of Information Act (FOIA) fee schedule. Those temporary regulations also amended the then-existing regulations to make clear that that an exempt organization may charge the applicable per-page copying fee under the IRS' FOIA fee schedule for any number of pages, without regard to the fee exclusion applicable to the IRS for the first 100 pages.

The IRS simultaneously published a notice of proposed rulemaking at 68 FR 40849, July 9, 2003, with a cross-reference to the text of the temporary regulations. The notice of proposed rulemaking invited public comment on the temporary regulations. The IRS has not received any public comments or any request for a public hearing. The IRS has not identified any reason that the text of the temporary regulations should be altered. The text of the temporary rule, now adopted as final, is identical to the text of that proposed rule.

It has been determined that these final regulations are not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these final regulations, and because these final regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Code, the notice of proposed rulemaking preceding these final regulations was submitted to the Chief Counsel for Advocacy of the Small Business Administration (SBA) for comment on their impact on small businesses.

The principal author of these final regulations is Sarah Tate, Office of the Associate Chief Counsel (Procedure and Administration), Disclosure and Privacy Law Division. However, other personnel from the IRS and Treasury Department participated in their development.

Title 39, Code of Federal Regulations (CFR) Part 501.23, Distribution Controls, section (r) requires postage meter manufacturers to affix a cautionary label to all postage meters to provide meter users with basic reminders on leasing, meter movement, and misuse. Further, section (r)(1) illustrates specific markings to be placed on cautionary labels. Experience with inadvertent use of the U.S. Postal Inspection Service telephone number to obtain general information has led to the need to clarify the label in order to emphasize manufacturer information and enhance direction to the customer. Section (2) currently requires a barcode label that is no longer relevant as a Postal Service requirement because of technology advances. The Postal Service has determined to remove the barcode label as an explicit requirement and leave it to the manufacturers' discretion depending on independent use of the barcode label.

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

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

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

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

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

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

In addition to using EDOCKET (http://www.epa.gov/edocket/) , you may access this Federal Register document electronically through the EPA Internet under the “ Federal Register ” listings at http://www.epa.gov/fedrgstr/ . A frequently updated electronic version of 40 CFR part 180 is available at E-CFR Beta Site Two at http://www.gpoaccess.gov/ecfr/ .

EPA issued a final rule, published in the Federal Register of November 7, 2001 (66 FR 56233) (FRL-6807-1), which announced that on its own initiative under section 408 of the FFDCA, 21 U.S.C. 346a, as amended by the FQPA (Public Law 104-170), it established a time-limited tolerance for the combined residues chlorothalonil and its metabolite, 4-hydroxy- 2,5,6- trichloroisophthalonitrile in or on ginseng at 0.10 ppm, with an expiration date of December 31, 2003. EPA established the tolerance because section 408(l)(6) of the FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under FIFRA section 18. Such tolerances can be established without providing notice or period for public comment.

EPA received a request to extend the use of chlorothalonil on ginseng for this year's growing season since the State of Wisconsin issued a crisis exemption pursuant to section 18 of FIFRA to control Botrytis cincera . Botrytis, also called gray mold, causes stem and leaf blight throughout the growing season. Ginseng is a perennial crop that is typically harvested in the third or fourth year. Registered alternatives are available for control of Botrytis during the first two years of the ginseng crop but none are registered for use during years when the crop will be harvested. After having reviewed the submission, EPA concurs that emergency conditions exist. EPA has authorized under FIFRA section 18 the use of chlorothalonil on ginseng for control of Botrytis in Wisconsin.

EPA assessed the potential risks presented by residues of chlorothalonil in or on ginseng. In doing so, EPA considered the safety standard in section 408(b)(2) of the FFDCA, and decided that the necessary tolerance under section 408(l)(6) of the FFDCA would be consistent with the safety standard and with FIFRA section 18. The data and other relevant material have been evaluated and discussed in the final rule published in the Federal Register of November 7, 2001 (66 FR 56233) (FRL-6807-1). Based on that data and information considered, the Agency reaffirms that re-establishment of the time-limited tolerance will continue to meet the requirements of section 408(l)(6) of the FFDCA. Therefore, the time-limited tolerance is re-established. EPA will publish a document in the Federal Register to remove the revoked tolerance from the Code of Federal Regulations (CFR). Although this tolerance will expire and is revoked on December 31, 2007, under section 408(l)(5) of the FFDCA, residues of the pesticide not in excess of the amounts specified in the tolerance remaining in or on ginseng after that date will not be unlawful, provided the pesticide is applied in a manner that was lawful under FIFRA and the application occurred prior to the revocation of the tolerance. EPA will take action to revoke this tolerance earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe.

Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. Although the procedures in those regulations require some modification to reflect the amendments made to the FFDCA by the FQPA, EPA will continue to use those procedures, with appropriate adjustments, until the necessary modifications can be made. The new section 408(g) of the FFDCA provides essentially the same process for persons to “object” to a regulation for an exemption from the requirement of a tolerance issued by EPA under new section 408(d) of the FFDCA, as was provided in the old sections 408 and 409 of the FFDCA. However, the period for filing objections is now 60 days, rather than 30 days.

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number OPP-2004-0409 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before March 7, 2005.

1. Filing the request . Your objection must specify the specific provisions in the regulation that you object to, and the grounds for the objections (40 CFR 178.25). If a hearing is requested, the objections must include a statement of the factual issues(s) on which a hearing is requested, the requestor's contentions on such issues, and a summary of any evidence relied upon by the objector (40 CFR 178.27). Information submitted in connection with an objection or hearing request may be claimed confidential by marking any part or all of that information as CBI. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. A copy of the information that does not contain CBI must be submitted for inclusion in the public record. Information not marked confidential may be disclosed publicly by EPA without prior notice.

Mail your written request to: Office of the Hearing Clerk (1900L), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. You may also deliver your request to the Office of the Hearing Clerk in Suite 350, # 1099 14th St., NW., Washington, DC 20005. The Office of the Hearing Clerk is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Office of the Hearing Clerk is (202) 564-6255.

2. Copies for the Docket . In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit III.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in ADDRESSES . Mail your copies, identified by docket ID number OPP-2004-0409, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. In person or by courier, bring a copy to the location of the PIRIB described in ADDRESSES . You may also send an electronic copy of your request via e-mail to: opp-docket@epa.gov . Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

A request for a hearing will be granted if the Administrator determines that the material submitted shows the following: There is a genuine and substantial issue of fact; there is a reasonable possibility that available evidence identified by the requestor would, if established resolve one or more of such issues in favor of the requestor, taking into account uncontested claims or facts to the contrary; and resolution of the factual issues(s) in the manner sought by the requestor would be adequate to justify the action requested (40 CFR 178.32).

This final rule re-establishes a time-limited tolerance under section 408 of the FFDCA. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866 due to its lack of significance, this rule 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 final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Since tolerances and exemptions that are established on the basis of a FIFRA section 18 petition under section 408 of the FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) do not apply. In addition, the Agency has determined that this action will not have a substantial direct effect on 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, entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132 requires 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.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of the FFDCA. For these same reasons, the Agency has determined that this rule does not have any “tribal implications” as described in Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000). Executive Order 13175, requires 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.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.” This rule will not have substantial direct effects on tribal governments, 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 in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule.

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 this final rule in the Federal Register . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2).

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

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

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

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

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

This is a summary of the Commission's Order on Reconsideration , CC Docket No. 96-128, FCC 04-251, adopted October 20, 2004, and released October 22, 2004. Filings and comments are also available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC, 20554. They may also be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1 (800) 378-3160 or (202) 4880-5300, facsimile (202) 488-5563, or via e-mail at http://www.bcpiweb.com.

1. In this Order on Reconsideration , we consider four petitions for reconsideration of our Report and Order adopted on September 30, 2003, which established detailed rules ensuring that PSPs are “fairly compensated” for each and every completed payphone-originated call (Implementation of the Pay Telephone Reclassification and Compensation Provisions of the Telecommunications Act of 1996, CC Docket No. 96-128, Report and Order , 68 FR 62751-01, (November 6, 2003)). This Order on Reconsideration , released on October 22, 2004, does not change this compensation framework, but rather refines and builds upon its approach. In the Order on Reconsideration , the Commission provides guidance on the types of contracts that it would deem to be reasonable methods of compensating PSPs, extends the time period that carriers must retain certain payphone records, and clarifies the rules' reporting, certification, and audit requirements.

2. The Report and Order held that the last facilities-based long distance carrier in a call path—either an interexchange carrier (IXC) or a switched-based reseller (SBR)—is responsible for compensating PSPs. For local calls, where a local exchange carrier (LEC) completes a call, that LEC is responsible for compensation. The Payphone Compensation Rules define these responsible carriers as “Completing Carriers” and require them to develop their own system of tracking calls to completion, the accuracy of which must be confirmed and attested to by a third party auditor. Completing Carriers are required to compensate the PSPs on a quarterly basis for calls that are completed on the Competing Carriers' platforms; to provide quarterly reports to the PSPs; and their chief financial officers (CFOs) must attest to the accuracy of the quarterly payment amount. The Payphone Compensation Rules also imposed reporting requirements on an “Intermediate Carrier,” defined in the rules as “a facilities-based long distance carrier that switches payphone calls to other facilities-based long distance carriers.” Additionally, the Payphone Compensation Rules also give parties flexibility to agree to alternative compensation arrangements (ACA) so that small Completing Carriers may avoid the expense of instituting a tracking system and undergoing an audit.

3. In the Order on Reconsideration , the Commission considers four petitions for reconsideration filed in response to the Report and Order in this docket. The Order on Reconsideration clarifies and modifies the Report and Order by adopting the following changes: (1) Clarifying that a Completing Carrier must give a PSP adequate notice of an ACA prior to its effective date, with sufficient time for the PSP to object to an ACA, and prior to the termination of an ACA; (2) clarifying that, in a complaint proceeding under the Payphone Compensation Rules, a Completing Carrier may assert as an affirmative defense that the PSP's objection to an ACA was unreasonable; (3) clarifying that Completing Carriers are required to report only completed calls in their quarterly reports; (4) extending the time period that carriers must retain certain payphone records, for dispute resolution purposes, from 18 to 27 months; (5) clarifying that quarterly reports should use industry standard formats; (6) clarifying the responsibilities of LECs under the Payphone Compensation Rules; (7) clarifying that a Completing Carrier may post its System Audit Report and § 64.1320(e) statement on its website or on a clearinghouse's website, instead of transmitting these documents to every PSP; (8) clarifying that a Completing Carrier's CFO may issue a single blanket certification addressed to all PSPs to which the carrier owes compensation, and such certification may be transmitted electronically or posted on the web; and (9) clarifying that where a clearinghouse is performing some of a Completing Carrier's compensation obligations, the Completing Carrier's auditor may rely upon, under certain circumstances, a third party's audit of the clearinghouse.

4. Final Paperwork Reduction Act Analysis. This document contains modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the PRA. OMB, the general public, and other Federal agencies are invited to comment on the new or modified information collection requirements contained in this proceeding. In addition, we note that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we previously sought specific comment on how the Commission might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”

5. In this present document, we have assessed the effects of extending the time period that carriers must maintain verification data. The amendment to § 64.1310(g), which extends the time carriers must maintain verification data from 18 to 27 months, will not adversely affect businesses with fewer than 25 employees. This amendment only requires carriers to maintain the data an additional 9 months and the cost and paperwork burden on carriers should be minimal. Furthermore, the amendment to § 64.1310(g) is in the public interest because it will help to ensure that the data is available throughout the statute of limitations period. We seek comment on this amendment.

6. The Commission will send a copy of the Order on Reconsideration, including a copy of this Final Regulatory Flexibility Certification, in a report to Congress pursuant to the Congressional Review Act. In addition, the Order on Reconsideration and this final certification will be sent to the Chief Counsel for Advocacy of the SBA, and will be published in the Federal Register .

7. Final Regulatory Flexibility Certification. The Regulatory Flexibility Act of 1980, as amended (RFA), requires that a regulatory flexibility analysis be prepared for notice-and-comment rulemaking proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).

8. As required by the RFA, an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Federal Register summary of the Further Notice of Proposed Rulemaking (Implementation of the Pay Telephone Reclassification and Compensation Provisions of the Telecommunications Act of 1996, CC Docket No. 96-128, Further Notice of Proposed Rulemaking, 68 FR 32720, (June 2, 2003)). The Commission sought written public comments on the proposals in the FNPRM, including comments on the IRFA. On September 30, 2003, the Commission adopted a Report and Order that included a Final Regulatory Flexibility Analysis (FRFA) that conformed to the RFA. In response to four petitions for reconsideration of the Report and Order, the Commission adopted this Order on Reconsideration.

9. In this Order on Reconsideration, the Commission clarifies its payphone compensation rules in ways that will not have a significant economic impact on a substantial number of small entities. As described below, the Order on Reconsideration essentially refines and builds upon the payphone compensation rules by clarifying certain ambiguities in the rules and by decreasing certain administrative burdens on carriers.

10. Specifically, we clarify the conditions that a payphone service provider (PSP) may impose on an alternative compensation arrangement (ACA) between an interexchange carrier (IXC) and a switch-based reseller (SBR). In the preceding Report and Order, the rules give parties flexibility to agree to ACAs to avoid compliance with any or all of the payphone compensation rules. However, in this Order on Reconsideration, we clarify that an ACA may be posted on the web to give PSPs adequate notice and time to object to the ACA. We also clarify that notice of termination may be placed on the web. This way, Completing Carriers will not be required to send a copy of the ACA and seek affirmative consent from as many as 5500 PSPs. We believe that these clarifications are merely administrative, and therefore the result of the use of the web will be to confer benefits rather than impose burdens on small SBRs. Therefore, these clarifications will not have a significant economic impact on small entities.

11. Additionally, the record in this proceeding demonstrates that PSPs might use their veto power over ACAs in a manner that would unreasonably interfere with an SBR's ability to enter into ACAs. For instance, demands by PSPs that an ACA contain a provision that forces IXCs to assume ultimate responsibility for the payphone compensation obligations of SBRs would undermine the Commission's determination in the Report and Order that IXCs are not liable for such payphone compensation. Such behavior would have the effect of deterring IXCs and SBRs from entering into ACAs. Accordingly, to ensure a level playing field for IXCs, SBRs, and PSPs, we clarify our rules to make clear that PSPs do not hold unlimited veto power over an ACA. This Order on Reconsideration therefore clarifies that, in a complaint proceeding under the rules, a Completing Carrier may assert as an affirmative defense that the PSP's objection to an ACA was unreasonable. We believe this clarification confers a benefit on small SBRs by allowing them to freely enter into ACAs, thereby avoiding the costs of maintaining a tracking system as well as the costs of a large audit liability. Small PSPs will not be burdened by this ACA procedure because they will likely receive compensation for 100% of all payphone-originated calls, regardless of whether they are completed. For these reasons, we believe this clarification will not impose a significant economic impact on small entities.

12. We also clarify that Completing Carriers are only required to report completed payphone calls and not uncompleted calls or the duration that a circuit is kept open for such calls. In the preceding Report and Order, the Commission had already placed extensive requirements on carriers to ensure that payment is based on accurate data: they were obliged to create tracking systems, file System Audit Reports, create a dispute resolution process, provide Completing and Intermediate Carrier Reports, and have their chief financial officer (CFO) certify their quarterly payments. With respect to uncompleted and call duration, we find that the burden and cost to carriers to report this information outweigh any marginal, additional benefit to PSPs. By not adding additional costly reporting requirements on carriers, this clarification instead confers a benefit on small SBRs. Since no additional costs are being incurred or additional duties imposed on carriers, this clarification adopted in this Order on Reconsideration will not have a significant economic impact on small entities.

13. The rules also extend the data retention requirement for completed call data from 18 months to 27 months, because the statute of limitations for bringing lawsuits for payphone compensation is 24 months after the close of a calendar quarter, and because the PSPs need access to this data. Although a number of small SBRs will have to retain records for an additional 9 months, we believe the effect of this revision will not be economically significant. Carriers were already required to retain this data for 18 months under the rules we adopted last year and therefore the effect of this change will be minimal. As we explain in the Order on Reconsideration, no commenter provided any data to support its position that it would unacceptably increase the cost for small entities. Should there be a minor increase in costs, that burden is outweighed by having the benefit of a more efficient record-keeping system.

14. To encourage consistency between the various reports required by the payphone compensation rules, we also clarify that carriers should follow one of the standard industry formats established by national clearinghouses. In this Order on Reconsideration, we do not require carriers to follow a particular format because we believe that it is neither appropriate nor necessary for the Commission to make up a format. Furthermore, parties did not quantify the cost to update the reports. In the event a small SBR decides to update the reports to meet industry standards, we believe the cost to do so will be minimal and therefore this clarification will not have a significant economic impact on small entities.

15. Similarly, the Commission's clarification concerning the responsibilities of local exchange carriers (LECs) as Completing Carriers does not significantly impact small entities. This clarification addresses a concern that some LECs who pay PSPs through bill credits are not compensating PSPs when a PSP is not served by the LEC or when the LEC acts as an IXC. In this Order on Reconsideration, we simply clarify that a LEC is responsible for compensation for calls made to access code numbers or subscriber toll-free numbers that a LEC maintains. We do not impose any additional responsibilities on LECs and therefore the clarification will not have a significant economic impact on small entities.

16. This Order on Reconsideration further clarifies and removes potentially burdensome paperwork requirements allowing the use of electronic methods to comply with our audit and CFO reporting requirements. First, we clarify that system audit reports may be posted on a website instead of requiring them to be sent to as many as 5500 PSPs. Second, these rules also clarify that a Completing Carrier CFO may certify the carrier's quarterly payments to all PSPs in a single document and may post this certification on the web, instead of sending individualized certifications to PSPs. The Commission believes that complying with the rules electronically is no more burdensome than submitting copies. It will also be less expensive for carriers to post the reports and certifications on the web rather than to send paper copies to PSPs. Therefore, these clarifications will not have a significant economic impact on small entities.

17. We also clarify that SBRs and other Completing Carriers may rely on a system audit of a payphone clearinghouse (instead of re-auditing the clearinghouse themselves). We expect that this clarification will benefit small SBRs economically because they will not have to pay for a separate audit of the clearinghouse.

18. Therefore, we certify that the requirements of the Order on Reconsideration will not have a significant economic impact on a substantial number of small entities.

19. Accordingly, pursuant to authority contained in sections 1, 4, and 276 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154, and 276, it is ordered that the policies, rules, and requirements set forth herein are adopted.

20. It is further ordered that part 64 of the Commission's rules, 47 CFR part 64, is amended by revising § 64.1310(a) and (g), and § 64.1320(a), (b), and (e) as set forth in Appendix B to this Order on Reconsideration.

21. It is further ordered that the Petition for Clarification or Partial Reconsideration filed by APCC is granted in part and denied in part, to the extent discussed herein.

22. It is further ordered that the petition for Clarification or, in the Alternative, Reconsideration filed by AT&T is granted, to the extent discussed herein.

23. It is further ordered that the Petition for Reconsideration and Clarification filed by the RBOC Coalition is denied.

24. It is further ordered that the Petition for Reconsideration filed by Sprint is denied.

25. It is further ordered that the Request for Stay filed by APCC is denied as moot.

26. It is further ordered that for good cause found, the rules set forth in Appendix B are effective January 5, 2005, except for § 64.1310(g) which contains information collection requirements that are not effective until approved by the Office of Management and Budget. The Commission will publish a document in the Federal Register announcing the effective date of that section.

27. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Order on Reconsideration, including the Final Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business Administration.

This is a synopsis of the Commission's Memorandum Opinion and Order, MM Docket No. 00-226, adopted December 15, 2004, and released December 17, 2004. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The document may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or http://www.BCPIWEB.com. Document is not subject to the Congressional Review Act. The Commission, is, therefore, not required to submit a copy of this Report and Order to GAO, pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A) because the proposed rule was dismissed, herein.

This is a synopsis of the Commission's Report and Order, MB Docket Nos. 04-340 and 04-327, adopted December 15, 2004, and released December 17, 2004. The full text of this Commission decision is available for inspection and copying during regular business hours at the FCC's Reference Information Center, Portals II, 445 Twelfth Street, SW., Room CY-A257, Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or http://www.BCPIWEB.com. The Commission will send a copy of this Report and Order in a report to be sent to Congress and the General Accounting Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).