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

In accordance with this rule: (1) All State and local laws and regulations that are in conflict with this rule will be preempted, (2) no retroactive effect will be given to this rule, and (3) administrative proceedings in accordance with 7 CFR part 11 must be exhausted before bringing suit in court challenging action taken under this rule, unless those regulations specifically allow bringing suit at an earlier time.

The Administrator of the Rural Housing Service has determined that this rule will not have a significant economic impact on a substantial number of small entities as defined in the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). New provisions included in this rule will not impact a substantial number of small entities to a greater extent than large entities. Therefore, a regulatory flexibility analysis was not performed.

There are no new reporting and recordkeeping requirements associated with this rule.

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

This document has been reviewed in accordance with 7 CFR part 1940, subpart G, “Environmental Program.” RHS has determined that this action does not constitute a major Federal action significantly affecting the quality of the human environment, and, in accordance with the National Environmental Policy Act of 1969, Public Law 91-190, an Environmental Impact Statement is not required.

The programs affected are listed in the Catalog of Federal Domestic Assistance under Number 10.410, Very Low to Moderate Income Housing Loans, and Number 10.415, Rural Rental Housing Loans. Rural Rental Housing Loans will be affected for those construction contracts above the applicable Rural Development area loan limit.

RHS conducts intergovernmental consultation in the manner delineated in RD Instruction 1940-J, “Intergovernmental Review of Rural Development Programs and Activities,” and in 7 CFR part 3015, subpart V. The Very Low to Moderate Income Housing Loans Program, Number 10.410, is not subject to the provisions of Executive Order 12372, which requires intergovernmental consultation with State and local officials. Rural Rental Housing Loans Program, Number 10.415, conducts intergovernmental reviews on a case-by-case basis. An intergovernmental review for this revision is not required or applicable.

It is the policy of the Rural Housing Service (RHS) to publish rules determined to be non-controversial and unlikely to result in adverse comments as direct final rules. RHS policy for direct final rules was published on March 27, 2003, at 68 FR 14889. No adverse comments are anticipated on the changes in this rule. Adverse comments suggest that the rule should not be adopted or that a change should be made to the rule. Unless an adverse comment is received within 60 days from the date of publication, this rule will be effective 90 days from the date of publication. If RHS receives one or more written adverse comments within 60 days from the date of publication, a document withdrawing the direct final rule prior to its effective date will be published in the Federal Register stating that adverse comments were received.

RHS administers the Direct Single Family Housing Loan and Grant program pursuant to 7 CFR part 3550, designed to assist very low and low-income households to obtain modest, decent, safe, and sanitary housing for use as permanent residences in rural areas. Direct loans may be used to buy, build, or improve the applicant's permanent residence. RHS regulations in 7 CFR part 1924, subpart A, contain requirements for construction which is funded with direct RHS loans, including direct single family housing loans. The regulation also applies to larger direct funded construction projects by other agencies in the Rural Development mission area. This regulation was originally promulgated on March 13, 1987 in 52 FR 41833. One of the requirements in this regulation is that for construction work performed by the contract method (where the borrower contracts with a builder for the construction), the builder must obtain a surety bond guaranteeing payment and performance in the amount of the contract when the contract exceeds $100,000. This amount has remained unchanged since 1987. In 1987, a single family house constructed and financed under the direct single family housing loan program would not exceed $100,000. Since 1987, construction costs for single family houses financed by RHS have dramatically increased so that now construction costs frequently exceed $100,000. The requirement that builders obtain surety bonds when the construction contract exceeds $100,000 has made it difficult for contractors to compete for direct single family housing projects financed by RHS. While the regulation contains internal exceptions for the $100,000 requirement, none of these exceptions satisfactorily resolves the cost burden for builders of direct single family housing.

The revision to 7 CFR 1924.6(a)(3)(i)(A) will facilitate the process of construction by raising the threshold when the contractor must acquire surety bonds. The purpose of this regulation is to remove the surety bond requirement for direct funded single family housing. The new threshold will be when the contract exceeds the applicable RHS area single family housing loan limit as established pursuant to 7 CFR 3550.63 and the limit for any particular area is available from any Rural Development office.

The provisions in 7 CFR 1924.6(a)(3)(i) that require payment and performance bonds when construction is under this threshold amount remain unchanged. RHS has determined that changing the threshold for payment and performance bonds provides for more flexibility, is locality based, borrowers are adequately protected, and housing costs are reduced.

The FAA has determined that notice and opportunity for prior public comment hereon are impracticable because these procedures would significantly delay issuance of the design approval and thus delivery of the affected aircraft. In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA, therefore, finds that good cause exists for making these special conditions effective upon issuance.

Interested persons are invited to submit such written data, views, or arguments as they may desire. Communications should identify the regulatory docket or notice number and be submitted in duplicate to the address specified above. All communications received on or before the closing date for comments will be considered by the Administrator. The special conditions may be changed in light of the comments received. All comments received will be available in the Rules Docket for examination by interested persons, both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerning this rulemaking will be filed in the docket. Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must include a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. CE215.” The postcard will be date stamped and returned to the commenter.

The New Piper Aircraft, Inc., Vero Beach, Florida, has made application to revise the type design of the PA-46-350P and PA-46-500TP model airplanes. The models are currently approved under the type certification basis listed on Type Certificate Data Sheets (TCDS) A25SO. The proposed modification incorporates a novel or unusual design feature, such as digital avionics consisting of an EFIS that is vulnerable to HIRF external to the airplane.

Under the provisions of 14 CFR part 21, § 21.101, The New Piper Aircraft, Inc., must show that affected airplane models, as changed, continue to meet the applicable provisions of the regulations identified on the appropriate TCDS. In addition, the type certification basis of the airplanes embodying this modification, which will include the additional certification basis for installation of the Avidyne Entegra EFIS, is:

PA-46-350P model aircraft: 14 CFR part 23 regulations §§ 23.301, 23.337, 23.341, 23.473, 23.561, 23.607, 23.611, as amended by Amdt. 23-48; §§ 23.305, 23.613, 23.773, 23.1525, 23.1549 as amended by Amdt. 23-45; §§ 23.777, 23.1191, 23.1337 as amended by Amdt. 23-51; §§ 23.867, 23.1303, 23.1307, 23.1309, 23.1311, 23.1321, 23.1323, 23.1329, 23.1351, 23.1353, 23.1359, 23.1361, 23.1365, 23.1431 as amended by Amdt. 23-49; § 23.1305 as amended by Amdt. 23-52; §§ 23.1322, 23.1331, 23.1357 as amended by Amdt. 23-43; §§ 23.1325, 23.1543, 23.1545, 23.1555, 23.1563, 23.1581, 23.1583, 23.1585 as amended by Amdt. 23-50; § 23.1523 as amended by Amdt. 23-34; § 23.1529 as amended by Amdt. 23-26; and the special conditions adopted by this rulemaking action.

PA-46-500TP model aircraft: 14 CFR part 23 regulations § 23.607 as amended by Amdt. 23-48; § 23.613 as amended by Amdt. 23-45; §§ 23.1351, 23.1365, 23.1431 as amended by Amdt. 23-49; §§ 23.1545, 23.1563 as amended by Amdt. 23-50; § 23.1523 as amended by Amdt. 23-34; and the special conditions adopted by this rulemaking action.

If the Administrator finds that the applicable airworthiness standards do not contain adequate or appropriate safety standards because of novel or unusual design features of an airplane, special conditions are prescribed under the provisions of § 21.16.

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

Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model already included on the same type certificate to incorporate the same novel or unusual design feature, the special conditions would also apply to the other model under the provisions of § 21.101.

The New Piper Aircraft, Inc., plans to incorporate certain novel and unusual design features into an airplane for which the airworthiness standards do not contain adequate or appropriate safety standards for protection from the effects of HIRF. These features include EFIS, which are susceptible to the HIRF environment, that were not envisaged by the existing regulations for this type of airplane.

Protection of Systems From High Intensity Radiated Fields (HIRF): Recent advances in technology have given rise to the application in aircraft designs of advanced electrical and electronic systems that perform functions required for continued safe flight and landing. Due to the use of sensitive solid-state advanced components in analog and digital electronics circuits, these advanced systems are readily responsive to the transient effects of induced electrical current and voltage caused by the HIRF. The HIRF can degrade electronic systems performance by damaging components or upsetting system functions.

Furthermore, the HIRF environment has undergone a transformation that was not foreseen when the current requirements were developed. Higher energy levels are radiated from transmitters that are used for radar, radio, and television. Also, the number of transmitters has increased significantly. There is also uncertainty concerning the effectiveness of airframe shielding for HIRF. Furthermore, coupling to cockpit-installed equipment through the cockpit window apertures is undefined.

The combined effect of the technological advances in airplane design and the changing environment has resulted in an increased level of vulnerability of electrical and electronic systems required for the continued safe flight and landing of the airplane. Effective measures against the effects of exposure to HIRF must be provided by the design and installation of these systems. The accepted maximum energy levels in which civilian airplane system installations must be capable of operating safely are based on surveys and analysis of existing radio frequency emitters. These special conditions require that the airplane be evaluated under these energy levels for the protection of the electronic system and its associated wiring harness. These external threat levels, which are lower than previous required values, are believed to represent the worst case to which an airplane would be exposed in the operating environment.

These special conditions require qualification of systems that perform critical functions, as installed in aircraft, to the defined HIRF environment in paragraph 1 or, as an option to a fixed value using laboratory tests, in paragraph 2, as follows:

(1) The applicant may demonstrate that the operation and operational capability of the installed electrical and electronic systems that perform critical functions are not adversely affected when the aircraft is exposed to the HIRF environment defined below:

A preliminary hazard analysis must be performed by the applicant, for approval by the FAA, to identify either electrical or electronic systems that perform critical functions. The term “critical” means those functions whose failure would contribute to, or cause, a failure condition that would prevent the continued safe flight and landing of the airplane. The systems identified by the hazard analysis that perform critical functions are candidates for the application of HIRF requirements. A system may perform both critical and non-critical functions. Primary electronic flight display systems, and their associated components, perform critical functions such as attitude, altitude, and airspeed indication. The HIRF requirements apply only to critical functions.

Compliance with HIRF requirements may be demonstrated by tests, analysis, models, similarity with existing systems, or any combination of these. Service experience alone is not acceptable since normal flight operations may not include an exposure to the HIRF environment. Reliance on a system with similar design features for redundancy as a means of protection against the effects of external HIRF is generally insufficient since all elements of a redundant system are likely to be exposed to the fields concurrently.

As discussed above, these special conditions are applicable to New Piper PA-46-350P and PA-46-500TP model airplanes.

This action affects only certain novel or unusual design features on one model of airplane. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. 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. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

1. Protection of Electrical and Electronic Systems From High Intensity Radiated Fields (HIRF). Each system that performs critical functions must be designed and installed to ensure that the operations, and operational capabilities of these systems to perform critical functions, are not adversely affected when the airplane is exposed to high intensity radiated electromagnetic fields external to the airplane.

2. For the purpose of these special conditions, the following definition applies:

Critical Functions: Functions whose failure would contribute to, or cause, a failure condition that would prevent the continued safe flight and landing of the airplane.

Airworthiness Directive AD 2004-23-06, amendment 39-13861 (69 FR 67047), applicable to certain Boeing Model 757-200, -200PF, -200CB, and -300 series airplanes, was published in the Federal Register on November 16, 2004. The AD requires inspection for damage of the W2800 wire bundle insulation, wire conductor, the wire bundle clamp bracket, and the BACC10GU( ) clamp, and repair or replacement with new or serviceable parts, if necessary. The AD also requires installation of spacers between the clamp and the bracket.

In “PART 39—AIRWORTHINESS DIRECTIVES” of the regulatory text of AD 2004-23-06, an incorrect citation of the amendment number appears. The reference should read, “2004-23-06 Boeing: Amendment 39-13861.” Additionally, as published, the applicability of the regulatory text of the AD specifies: “Applicability: Model 757-200, -200PF, -200CB, as listed in Boeing Special Attention Service Bulletin 757-27-0089, Revision 1; and Model 757-300 series airplanes, as listed in Boeing Special Attention Service Bulletin 757-24-0090, Revision 1; both service bulletin revisions dated February 27, 2003; certificated in any category.” The correct reference for Model 757-200, -200PF, -200CB airplanes is Boeing Special Attention Service Bulletin 757-24-0089, Revision 1, dated February 27, 2003. In all other places, the AD references the correct service bulletin number.

No other parts of the regulatory information have been changed; therefore, the final rule is not republished in the Federal Register .

The effective date of this AD remains December 21, 2004.

What events have caused this AD? The Federal Office for Civil Aviation (FOCA), which is the airworthiness authority for Switzerland, recently notified FAA that an unsafe condition may exist on all Pilatus Aircraft Ltd. (Pilatus) Models PC-12 and PC-12/45 airplanes. The FOCA reports that some components of main landing gear (MLG) actuators (part number (P/N) 960.30.01.103 with serial numbers (SNs) 830E through 881E) were incorrectly heat treated during manufacture. Components in this condition can decrease the specified fatigue life of the actuators.

It is possible that these components could have been removed and then installed in other Pilatus Models PC-12 and PC-12/45 airplanes.

What is the potential impact if FAA took no action? Failure of the MLG actuator could result in loss of hydraulic extension/retraction of the MLG. This failure could lead to loss of control during ground operations.

Has FAA taken any action to this point? We issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to all Pilatus Aircraft Ltd. (Pilatus) Models PC-12 and PC-12/45 airplanes. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on November 1, 2004 (69 FR 63336). The NPRM proposed to require you to check the airplane logbook to determine whether any MLG actuator (P/N 960.30.01.103) with SNs 830E through 881E is installed. If any MLG actuator with one of these SNs is installed, the NPRM would require you to replace the MLG actuator with a P/N 960.30.01.103 actuator that has a SN other than 830E through 881E. The pilot would be allowed to do the logbook check. If the pilot can positively determine that no MLG actuator with one of these SNs is installed, no further action would be required.

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

What is the commenter's concern? The commenter states that it would be more appropriate to have the AD address only the serial number airplanes on which the parts were installed. Further, the commenter states that the AD should not apply to airplanes that Pilatus has not yet produced.

What is FAA's response to the concern? As FAA explained in the NPRM, there is a possibility that these parts might have been removed from the affected serial number aircraft and installed on other serial numbers not included in the FOCA AD or Pilatus service bulletin. Therefore, we are including all serial numbers in the effectivity of this AD. To relieve the burden, FAA has included in the AD a logbook check for the affected S/N main landing gear actuators.

The manufacturer should ensure that any MLG actuator P/N 960.30.01.103 with SNs 830E through 881E is not installed at the factory and include a statement of compliance with this FAA AD in the logbook of any new manufactured aircraft.

Also, the only assurance that FAA has that the suspect parts are not installed in the future on Pilatus Models PC-12 and PC-12/45 airplanes is through AD action.

We are not changing the final rule AD action based on these comments.

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

• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

Where can I go to view the docket information? You may view the AD docket that contains information relating to this subject in person at the DMS Docket Offices between 9 a.m. and 5 p.m. (eastern standard time), Monday through Friday, except Federal holidays. The Docket Office (telephone 1-800-647-5227) is located on the plaza level of the Department of Transportation NASSIF Building at the street address stated in ADDRESSES . You may also view the AD docket on the Internet at http://dms.dot.gov.

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

How many airplanes does this AD impact? We estimate that this AD affects 260 airplanes in the U.S. registry.

What is the cost impact of this AD on owners/operators of the affected airplanes? We estimate the following costs to do the inspection:

We estimate the following costs to do any necessary replacement that would be required based on the results of this inspection. We have no way of determining the number of airplanes that may need this replacement:

Pilatus will provide replacement parts free of charge if any MLG actuator with a SN 830E through 881E is returned to Pilatus. If purchased, the cost of a new actuator is $14,000. The cost of an overhauled actuator is $5,000.

What authority does FAA have for issuing this rulemaking action? 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 AD.

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

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

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

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

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

We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES . Include “Docket No. FAA-2004-19221; Directorate Identifier 2004-CE-28-AD” in your request.

What events have caused this AD? The need to minimize fire hazards in the engine compartment on The New Piper Aircraft, Inc. (Piper) Models PA-23-235, PA-23-250, and PA-E23-250 airplanes equipped with AiResearch turbosuperchargers installed under supplemental type certificate (STC) SA852WE, SA909WE, or SA978WE; or installed under Piper Aircraft Drawing 32016 caused FAA to issue AD 74-06-01, Amendment 39-1977. AD 74-06-01 currently requires the following on any Piper Models PA-23-235, PA-23-250, and PA-E23-250 airplanes equipped with AiResearch turbosuperchargers installed under STC SA852WE, SA909WE, or SA978WE; or installed under Piper Aircraft Drawing Number 32016:

What has happened since AD 74-06-01 to initiate this action? The FAA has received a report of a fatal accident related to the breakdown of the turbosupercharger oil reservoir. A Piper Model PA 23-250 airplane equipped with the STC turbocharger installation was involved in a fatal accident. The accident investigation revealed a breakdown of the turbosupercharger oil reservoir. Examination of the aircraft wreckage revealed evidence of an in-flight fire where the turbosupercharger oil reservoir was burned to include the rear firewall portion of the reservoir allowing fire to move aft, softening the wing spar.

What is the potential impact if FAA took no action? Failure of the turbosupercharger oil reservoir when exposed to flame or exhaust gases could lead to an in-flight fire and failure of the wing spar.

Has FAA taken any action to this point? We issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to certain Piper Models PA-23-235, PA-23-250, and PA-E23-250 airplanes equipped with Garrett Aviation Services (Garrett) (formerly AiResearch) turbosuperchargers installed under STC SA852WE, SA909WE, or SA978WE; or installed under Piper Aircraft Drawing Number 32016. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on September 22, 2004 (69 FR 56733).

The NPRM proposed to supersede AD 74-06-01, which applies to certain Piper Models PA-23-235, PA-23-250, and PA-E23-250 airplanes equipped with Garrett Aviation Services (Garrett) (formerly AiResearch) turbosuperchargers installed under STC SA852WE, SA909WE, or SA978WE; or installed under Piper Aircraft Drawing Number 32016. AD 74-06-01 currently requires you to replace turbosupercharger oil tanks, install fire shrouds, seal all openings in the fire shrouds, and add drainage provisions in the oil tank fairings for airplane serial numbers 27-1 through 27-2504; and the NPRM proposed to require you to add drainage provisions in the air scoops on serial numbers 27-2505 and higher.

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

What is the commenter's concern? The commenter recommends that FAA revise the AD to require installation of FAA-approved PMA parts. Further, the commenter writes that the proposed AD requires replacement of parts installed under an STC. The parts proposed to be installed have not been approved under 14 CFR 21.303(a). Therefore, the commenter states that the parts are not eligible for installation.

What is FAA's response to the concern? The FAA concurs that the AD should require the installation of PMA parts. However, incorporating the service bulletin, either standard parts or PMA parts are required. Therefore, we do not feel that a rewrite of the AD is necessary. Note that the first two sets of parts shipped omitted the PMA identification. The recipients of these were notified and arrangements made to exchange these parts for those having appropriate PMA identification. All subsequent shipments contain the required PMA identification.

We are not changing the final rule AD action based on these comments.

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

Where can I go to view the docket information? You may view the AD docket that contains information relating to this subject in person at the DMS Docket Offices between 9 a.m. and 5 p.m. (eastern standard time), Monday through Friday, except Federal holidays. The Docket Office (telephone 1-800-647-5227) is located on the plaza level of the Department of Transportation NASSIF Building at the street address stated in ADDRESSES. You may also view the AD docket on the Internet at http://dms.dot.gov.

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

How many airplanes does this AD impact? We estimate that this AD affects 250 airplanes in the U.S. registry.

What is the cost impact of this AD on owners/operators of the affected airplanes? We estimate the following costs to do the modification:

What authority does FAA have for issuing this rulemaking action? 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 AD.

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

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

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

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

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

We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES. Include “Docket No. FAA-2004-18597; Directorate Identifier 2004-CE-21-AD” in your request.

The FAA proposed to amend 14 CFR part 39 with an AD for all Airbus Model A310 series airplanes. That action, published in the Federal Register on November 9, 2004 (69 FR 64871), proposed to require modifying the wire routing of electrical harness 636VB in the right-hand wing.

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

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

This AD will affect about 51 airplanes of U.S. registry. The required actions will take about 34 work hours per airplane, at an average labor rate of $65 per work hour. Required parts will cost about $356 per airplane. Based on these figures, the estimated cost of the AD for U.S. operators is $130,866 or $2,566 per airplane.

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.

The FAA proposed to amend 14 CFR part 39 with an AD for certain Boeing Model 747-100 and -200B series airplanes. That action, published in the Federal Register on August 6, 2004 (69 FR 47814), proposed to require installing bonding clips and bonding jumpers from the housing of each fuel pump to airplane structure outside the fuel tanks.

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

The commenters state that there is a discrepancy in Boeing Alert Service Bulletin 747-28A2033, Revision 1, dated December 18, 2003. The discrepancy is the different maximum allowable resistance values for the boost pumps and the override jettison pumps. The resistance value for the boost pumps is 0.0004 ohm. The resistance value for the jettison pumps is 0.0002 ohm. One of the commenters notes that the same bonding jumper is used for each type of pump. We infer that the commenter requests that either of the resistance values be changed so the values are the same for the boost and override jettison pumps. The other commenter requests revising the proposed AD, or contacting the manufacturer so the service bulletin can be revised to correct the discrepancy.

The FAA does not agree that there is an error in the resistance values stated in Boeing Alert Service Bulletin 747-28A2033, Revision 1. The resistance values stated in the service bulletin are correct, and are based upon possible fault current magnitudes, which are different for the two pump types. This AD has not been changed regarding this issue.

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

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.

The FAA proposed to amend 14 CFR part 39 with an AD for certain Airbus Model A310 series airplanes; and Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model C4 605R Variant F airplanes (collectively called A300-600). That action, published in the Federal Register on November 4, 2004 (69 FR 64260), proposed to require relocating contactor 9DG located at rack (relay box) 107VU and adding protective sleeves to the two wire (cable) looms near the door hinge of rack 107VU.

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

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

This AD affects about 167 airplanes of U.S. registry. The required actions will take about 3 work hours per airplane, at an average labor rate of $65 per work hour. Required parts will cost about $290 per airplane. Based on these figures, the estimated cost of the AD for U.S. operators is $80,995, or $485 per airplane.

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.

The FAA proposed to amend 14 CFR Part 39 with an AD for certain Boeing Model 747 series airplanes. That action, published in the Federal Register on July 15, 2004 (69 FR 42365), proposed to require a one-time inspection for discrepancies of the frame web and inner chords on the forward edge frame of the number 5 main entry door cutout, and related corrective action.

The AD docket contains the proposed AD, comments, and any final disposition. You can examine the AD docket on the Internet at http://dms.dot.gov , or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level of the Nassif Building at the DOT street address stated in the ADDRESSES section.

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

The commenter (the manufacturer) asks that paragraph (g) of the proposed AD be changed to read “For those airplanes on which the repetitive inspections required by AD 2001-16-02, amendment 39-12370, have been done as of the effective date of this AD, no further action is required.” The commenter states that the inspection required by AD 2001-16-02 (referenced as a related AD in the proposed AD) is a surface eddy current inspection and is more intensive than the detailed inspection specified in the proposed AD. The commenter notes that the repetitive inspections in AD 2001-16-02 adequately detect any cracking prior to loss of residual strength of the chord. The commenter adds that a nick or gouge does not affect the crack growth rate, so the safety concern in the proposed AD is addressed by the repetitive inspections.

We agree with the commenter. The repetitive inspections for cracking required by AD 2001-16-02 are more extensive than the one-time inspection required by this AD, and must be repeated at intervals not to exceed 3,000 flight cycles. Initiating those inspections will find cracking before it reaches critical length; therefore, the one-time inspection required by this AD is not necessary if the repetitive inspections are currently being done. For airplanes that are at or near the 10,000-flight-cycle threshold, and have not been inspected per AD 2001-16-02, the purpose of this AD is to close the gap between the compliance time for the initial inspection required by AD 2001-16-02 (before the accumulation of 16,000 total flight cycles) and the one-time inspection required by this AD. The AD requires that operators inspect the airplane at or before 10,000 total flight cycles, or within the specified grace period. Therefore, paragraph (g) of this AD has been changed to specify that operators currently accomplishing the repetitive inspections required by AD 2001-16-02 are not required to accomplish the one-time inspection required by this 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 with the change described previously. We have determined that this change will neither increase the economic burden on any operator nor increase the scope of the AD.

There are about 1,055 airplanes worldwide of the affected design, this AD affects about 220 airplanes of U.S. registry. The inspection takes about 2 work hours per airplane, at an average labor rate of $65 per work hour. Based on these figures, the estimated cost of the inspection required by this AD for U.S. operators is $28,600, or $130 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 published this direct final rule with a request for comments in the Federal Register on November 16, 2004 (69 FR 67052). The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on March 17, 2005. No adverse comments were received, and thus this notice confirms that this direct final rule will become effective on that date.

The FAA published this direct final rule with a request for comments in the Federal Register on October 29, 2004 (69 FR 63056) and the Federal Register subsequently published a correction on November 29, 2004 (69 FR 69448). The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on January 20, 2005. No adverse comments were received, and thus this notice confirms that this direct final rule will become effective on that date.

The FAA published this direct final rule with a request for comments in the Federal Register on November 19, 2004 (69 FR 67638). The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on March 17, 2005. No adverse comments were received, and thus this notice confirms that this direct final rule will become effective on that date.

On Wednesday, November 10, 2004, the FAA proposed to amend 14 CFR part 71 to establish a Class E surface area at Wichita Colonel James Jabara Airport, KS (69 FR 65107). The proposal was to establish a Class E surface area at Wichita Colonel James Jabara Airport, KS. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments objecting to the proposal were received.

This amendment to part 71 of the Federal Aviation Regulations (14 CFR part 71) establishes Class E airspace designated as a surface area for an airport at Wichita Colonel James Jabara Airport, KS. Controlled airspace extending upward from the surface of the earth is needed to contain aircraft executing instrument approach procedures. Weather observations will be provided by an Automated Surface Observing System (ASOS) and communications will be direct with Wichita Approach Control. The area will be depicted on appropriate aeronautical charts.

Class E airspace areas designated as surface areas are published in Paragraph 6002 of FAA Order 7400.9M, Airspace Designations and Reporting Points, dated August 30, 2004, and effective September 16, 2004, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

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. Therefore, this regulation—(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. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority since it contains aircraft executing instrument approach procedures to Colonel James Jabara Airport.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds good cause exists for not publishing an NPRM. Public comment is not necessary since the bridge that the regulation governed is out of service and is being completely removed. The bridge no longer affects navigation through the area.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds good cause exists for making this rule effective in less than 30 days after publication in the Federal Register . There is no need to delay the implementation of this rule because the bridge it governs is already out of service and is being removed.

The existing swing span bridge across the Boeuf River, mile 32.3, which had previously serviced the area is in the process of being removed and no longer affects navigation. The regulation governing the operation of the bridge is found in 33 CFR 117.431. The purpose of this rule is to remove 33 CFR 117.431 from the Code of Federal Regulations since it governs a bridge that is no longer in service and is being removed. This final rule removes the regulation regarding the SR 4 bridge.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS).

We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary.

This rule removes the special regulation for a bridge that is already out of service and is being removed.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this temporary rule will not have a significant economic impact on a substantial number of small entities.

This rule will have no impact on any small entities because the regulation being removed applies to a bridge that has already been taken out of service and is being removed.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking process.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in the preamble.

This rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not cause an environmental risk to health or risk to safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g. specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this temporary rule is categorically excluded, under figure 2-1, paragraph (32)(e), of the Instruction, from further environmental documentation. This final rule only involves removal of the drawbridge operation regulation for a drawbridge that has been removed from service. It will not have any impact on the environment.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a NPRM. Publishing a NPRM, which would incorporate a comment period before a final rule could be issued, and delaying the rule's effective date is contrary to public safety because immediate action is necessary to protect the public and waters of the United States.

The Coast Guard will issue a broadcast notice to mariners and may place Coast Guard vessels in the vicinity of this zone to advise mariners of the restriction.

This rule is needed to protect spectator craft in the vicinity of the fireworks presentation from the hazards associated with the transport, storage, and launching of fireworks. Anchoring, mooring, or transiting within this zone is prohibited, unless authorized by the Captain of the Port, Jacksonville, FL. The temporary safety zone encompasses all waters within a 700-foot radius of the fireworks platform at Lee Wenner Park during the storage, preparation, transport, and launching of fireworks. During the fireworks show, the platform will be located at approximate position 28°21.03′ N, 080°43.13′ W.

This regulation is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential cost and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has exempted it from review under the order. It is not significant under the regulatory policies and procedures of the Department of Homeland Security (DHS) because these regulations will only be in effect for a short period of time, and the impacts on routine navigation are expected to be minimal.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this rule would have a significant economic impact on a substantial number of small entities. “Small entities” include small businesses, not-for-profit organizations that are independently owned and operated and are not dominate in their field, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under section 5 U.S.C. 605(b) that this rule will not have a significant economic impact upon a substantial number of small entities because the regulation will only be enforced for approximately one hour and the impact on routine navigation is expected to be minimal because traffic may transit safely around the zone and traffic may enter upon permission of the Captain of the Port or his representative.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process. If the rule will affect your small business, organization, or government jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed under FOR FURTHER INFORMATION CONTACT for assistance in understanding this rule.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions and annually rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that my result in the expenditure by State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Although this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or safety that may disproportionately affect children.

We have analyzed this rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. Under figure 2-1, paragraph (34)(g), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this rule under Executive Order 13211, Actions Concerning regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

In a proposed rule published in the Federal Register on September 2, 2004 (69 FR 53665), the Postal Service proposed an amendment to Domestic Mail Manual (DMM) standards eliminating the signature waiver option for Signature Confirmation service. The Postal Service adopts the proposal as described below.

Signature Confirmation service provides Postal Service customers with information about the date and time a mailpiece was delivered and, if delivery was attempted but not successful, the date and time of the delivery attempt. A delivery record, including the recipient's signature, is maintained by the Postal Service and is available to the customer via fax, e-mail, or mail, upon request. No acceptance record is kept at the office of mailing.

Signature Confirmation service currently includes a signature waiver option that allows the sender to waive the signature requirement and accept the Postal Service delivery employee's signature, date, and time of delivery as proof of delivery. If a mailer selects the signature waiver option, the mailer is provided only with the date and time of delivery in the delivery record. The signature waiver option is not available when Signature Confirmation service is combined with other special services.

Signature waiver was requested initially by Delivery Confirmation service mailers who agreed to participate in testing the Signature Confirmation service but did not want to inconvenience their customers by requiring them to sign for their items. Now that Signature Confirmation service is fully implemented and widely recognized, the signature waiver feature is no longer necessary.

The Postal Service did not receive any comments in response to this proposal. Therefore, the Postal Service will eliminate the signature waiver option for Signature Confirmation service as of February 1, 2005. Customers who do not need to obtain a signature but wish to know the date and time that their mailpiece was delivered can do so using Delivery Confirmation service.

The Postal Service published a proposed rule in the Federal Register on November 20, 2003, to amend 39 CFR part 501, Authorization to Manufacture and Distribute Postage Meters. Comments on the proposed rule were due on or before December 20, 2003. We received no comments objecting to the proposed rule or requesting any changes. Therefore, the rule is adopted as final without any changes. The editorial changes to correct references to sections of part 501 necessitated by the redesignation of certain sections are as follows: In section 501.2(c), the reference to section 501.21 is corrected to 501.22. In section 501.4, the reference to section 501.23 is corrected to 501.24. In section 501.6(d), the reference to section 501.20(c) is corrected to section 501.6(c). In section 501.23(i), reference to section 501.26 is corrected to section 501.27. In section 501.24(b), the reference to section 501.26 is corrected to section 501.27 and the reference to section 501.25 is corrected to section 501.26. In section 501.27(e), the reference to section 501.23 is corrected to section 501.24. In section 501.30(a), the reference to section 501.22(b) is corrected to section 501.23(b).

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

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

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

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

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

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

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

In the Federal Register of June 23, 2004 (69 FR 35024) (FRL-7358-3), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition PP 3F6754 by Dow AgroSciences LLC, 9330 Zionsville Road, Indianapolis, IN 46268. The petition requested that 40 CFR 180.495 be amended by establishing a tolerance for residues of the insecticide spinosad, in or on the raw agricultural commodity stored grain (wheat, barley, corn, oats, rice, and sorghum milo) at 1 ppm , soybean, sunflower, peanut, and cotton seed at 1 part per million (ppm); and birdseed at 3 ppm. That notice included a summary of the petition prepared by DowAgroScience LLC, the registrant.

Based on EPA's review, the petition described in Unit II. was revised by the petitioner (Dow AgroSciences) to propose tolerances for residues of spinosad for cereal grains group at 1.5 ppm; grain as aspirated fractions at 200 ppm; rice hulls at 4 ppm; meat of cattle, goats, hogs, horse and sheep at 1.5 ppm; fat of cattle, goats, hogs, horse and sheep at 33 ppm; meat byproducts of cattle, goats, hogs, horse and sheep at 8 ppm; milk at 6 ppm; milk fat at 75 ppm; fat of poultry at 0.5 ppm; meat byproducts of poultry at 0.03 ppm; eggs at 0.05 ppm. Residue data on stored seed (soybean, sunflower, cottonseed) and peanuts were not submitted, and thus not considered under this petition. The Agency does not establish tolerances for birdseed commodities.

EPA is also revising or deleting existing tolerances for spinosad that are superceded or no longer needed, correcting administrative errors in existing tolerances, and updating tolerance terminology as follows:

1. Tolerances for residues of spinosad in or on barley, grain; buckwheat, grain; corn, grain; corn, pop; corn pop, grain; grain, aspirated fractions; millet, pearl, grain; millet, proso, grain; oat grain; rye, grain; sorghum, grain; stored grains (barley, corn, oats, rice, sorghum/milo, and wheat); teosinte, grain; wheat bran; wheat, flour; wheat, grain; wheat midlings; wheat shorts are being revised or replaced as appropriate to reflect the new commodity terms and tolerance levels specified in Unit II.

2. Time-limited tolerances established for residues of spinosad in or on beet, sugar, tops at 10 ppm in connection with Section 18 exemption granted by EPA has expired and is being deleted. In a prior action, EPA established a spinosad tolerance for vegetables, leaves of root and tuber, group 2, which covers beet, sugar, tops. Time limited tolerances established for residues of spinosad in/or on coffee beans at 0.02 ppm in connection with an experimental use permit granted by EPA has expired and is being deleted.

3. Administrative errors in existing tolerances for corn, stover; sorghum, grain stover and wheat straw are being corrected as follows: The existing tolerances for these commodities are repeated more than once in the table in paragraph (a) under § 180.495 and are being deleted.

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

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

Consistent with section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure, consistent with section 408(b)(2) of FFDCA, for a tolerance for residues of spinosad on the commodities listed in Unit II. EPA's assessment of exposures and risks associated with establishing the tolerance follows.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. The nature of the toxic effects caused by spinosad as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies reviewed are discussed in the Federal Register of September 27, 2002 (67 FR 60923) (FRL-7199-5).

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

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

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

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

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

A summary of the toxicological endpoints for spinosad used for human risk assessment is discussed in Unit III.B. of the final rule published in the Federal Register of September 27, 2002 (67 FR 60923) (FRL-7199-5).

1. Dietary exposure from food and feed uses . Tolerances have been established (40 CFR 180.495) for the residues of spinosad, in or on a variety of raw agricultural commodities. Risk assessments were conducted by EPA to assess dietary exposures from spinosad in food as follows:

i. Acute exposure . Acute dietary risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a one-day or single exposure. An endpoint was not identified for acute dietary exposure and risk assessment because no effects were observed in oral toxicity studies including developmental toxicity studies in rats or rabbits that could be attributable to a single dose (exposure). Therefore, an acute dietary exposure assessment was not performed.

ii. Chronic exposure . In conducting the chronic dietary risk assessment EPA used the Dietary Exposure Evaluation Model software with the Food Commodity Intake Database (DEEM-FCID T ), which incorporates food consumption data as reported by respondents in the USDA 1994-1996 and 1998 Nationwide Continuing Surveys of Food Intake by Individuals (CSFII), and accumulated exposure to the chemical for each commodity. The following assumptions were made for the chronic exposure assessments: A chronic dietary exposure assessment (using tolerance-level residues, DEEM default processing factors, and percent crop treated (CT) information including 10% CT for all proposed commodities) was conducted for the general U.S. population and various population subgroups. The estimated chronic dietary exposures for the U.S. population and all population subgroups, as represented by percent of the chronic Population Adjusted Dose (cPAD), is below EPA's level of concern ( < 100% cPAD). The estimated exposure for the U.S. population is 21% of the cPAD. The estimated exposure for the most highly exposed subpopulation, children 1-2 years, is 62% of the cPAD.

iii. Cancer . Spinosad has been classified as not likely to be carcinogenic in humans based on the results of a carcinogenicity study in mice and the combined chronic toxicity and carcinogenicity study in rats. Therefore, a quantitative cancer risk assessment was not performed.

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

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

The Agency used PCT information as follows:

The chronic analysis assumed tolerance level residues for all crop, poultry, and egg commodities, and anticipated residues for ruminant and milk commodities. Percent crop treated for several crop commodities were reduced from 100% based on data submitted to EPA. The Agency used PCT information as follows:

The Agency believes that the three conditions listed in Unit III.C. have been met. With respect to Condition 1, PCT estimates for existing uses are derived from Federal and private market survey data, which are reliable and have a valid basis. EPA uses a weighted average PCT for chronic dietary exposure estimates. This weighted average PCT figure is derived by averaging State-level data for a period of up to 10 years, and weighting for the more robust and recent data. A weighted average of the PCT reasonably represents a person's dietary exposure over a lifetime, and is unlikely to underestimate exposure to an individual because of the fact that pesticide use patterns (both regionally and nationally) tend to change continuously over time, such that an individual is unlikely to be exposed to more than the average PCT over a lifetime. With respect to the projected PCT for the proposed used, the 10% projection is based upon a maximum percent seed supply treated with chlorphyrifos-methyl of 8% for wheat and 5% for barley and oats. Since spinosad is likely to be used in place of chlorphyrifos-methyl, historically the most widely used insecticide for control of insects pests on stored grain this assessment assumes that the percent of seed treatment would approximate the maximum percent of the seed supply treated with chlorphyrifos-methyl. As to Conditions 2 and 3, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available information on the regional consumption of food to which spinosid may be applied in a particular area.

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

The Agency uses the FQPA Index Reservoir Screening Tool (FIRST) or the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS), to produce estimates of pesticide concentrations in an index reservoir. The SCI-GROW model is used to predict pesticide concentrations in shallow ground water. For a screening-level assessment for surface water EPA will use FIRST (a tier 1 model) before using PRZM/EXAMS (a tier 2 model). The FIRST model is a subset of the PRZM/EXAMS model that uses a specific high-end runoff scenario for pesticides. Both FIRST and PRZM/EXAMS incorporate an index reservoir environment, and both models include a percent crop area factor as an adjustment to account for the maximum percent crop coverage within a watershed or drainage basin.

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

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

Based on the FIRST and SCI-GROW models, the EECs of spinosad for chronic exposures are estimated to be 2.3 ppb for surface water and 0.037 ppb for ground water.

The EECs for spinosad are based on application of the insecticide to turf at a maximum of four applications at a rate of 0.41 pound active per acre per application.

3. From non-dietary exposure . The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). A summary of the residential uses for spinosad is discussed in Unit III.C. of the final rule published in the Federal Register of September 27, 2002 (67 FR 60923) (FRL-7199-5).

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

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

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

2. Prenatal and postnatal sensitivity . There is no indication of increased susceptibility of rat and rabbit fetuses to in utero and/or postnatal exposure.

3. Conclusion . There is a complete toxicity data base for spinosad and exposure data are complete or are estimated based on data that reasonably accounts for potential exposures. EPA determined that the 10X SF to protect infants and children should be removed. The FQPA factor is removed because:

i. The toxicological data base for spinosad is complete for FQPA assessment.

ii. There is no evidence of increased susceptibility of rat or rabbit fetuses following in utero exposure in the developmental studies with spinosad, and there is no evidence of increased susceptibility of young rats in the reproduction study with spinosad.

iii. There are no residual uncertainties identified in the exposure databases; the dietary food exposure assessment (chronic only; no acute endpoint was identified) is refined using Anticipated Residues calculated from field trial data and available percent crop treated (%CT) information.

iv. EPA has indicated that the dietary drinking water exposure is based on conservative modeling estimates.

v. EPA Residential SOPs were used to assess post-application exposure to children as well as incidental oral exposure of toddlers, so these assessments do not underestimate the exposure and risks posed by spinosad.

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

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

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

1. Acute risk . Acute aggregate risk consists of the combined dietary exposures from food and drinking water sources. The total exposure is compared to the acute RfD. An acute RfD was not identified since no effects were observed in oral toxicity studies that could be attributable to a single dose. Therefore, the Agency concludes that there is a reasonable certainty of no harm from acute aggregate exposure to spinosad.

2. Chronic risk . Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that exposure to spinosad from food will utilize 21% of the cPAD for the U.S. population, 22% of the cPAD for all infants, and 62 % of the cPAD for children 1-2 years old. Based on the use pattern, chronic residential exposure to residues of spinosad is not expected. In addition, there is potential for chronic dietary exposure to spinosad in drinking water. After calculating DWLOCs and comparing them to the EECs for surface and ground water, EPA does not expect the aggregate exposure to exceed 100% of the cPAD, as shown in the Table below:

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

A summary of the short-term risk for spinosad is discussed in Unit III.E. of the final rule published in the Federal Register of September 27, 2002 (67 FR 60923) (FRL-7199-5).

4. Aggregate cancer risk for U.S. population . Spinosad has been classified as ``not likely to be carcinogenic in humans'' based on the results of a carcinogenicity study in mice and the combined chronic toxicity and carcinogenicity study in rats. Therefore, spinosad is not expected to pose a cancer risk to humans.

5. Determination of safety . Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, and to infants and children from aggregate exposure to spinosad residues.

Adequate enforcement methodology using high pressure liquid chromatography with ultraviolet detector (HPLC/UV) is available to enforce the tolerances in plants. Adequate livestock methods are available for tolerance enforcement. Method RES 94094 (GRM 95.03) is an HPLC/UV method suitable for determination of spinosad residues in ruminant commodities. Method GRM 95.03 has undergone successful independent laboratory validation (ILV) and EPA laboratory validation, and has been forwarded to FDA for inclusion in PAM Volume II. Method GRM 95.15 is another HPLC/UV method suitable for determination of spinosad residues in poultry commodities. This method has been forwarded to FDA for inclusion in PAM Volume II. Method RES 95114, an immunoassay method for determination of spinosad residues in ruminant commodities, underwent a successful ILV and EPA laboratory validation. It has been submitted to FDA for inclusion in PAM Volume II. The methods may be requested from: Paul Golden, US EPA/OPP/BEAD/ACB, Environmental Science Center, 701 Mapes Road, Fort Meade, MD 20755-5350; telephone number: (410) 305-2960; FAX (410) 305-3091; e-mail address: RAM Mailbox .

No Codex, Canadian, or Mexican maximum residue limits (MRLs) have been established for residues of spinosad on the raw agricultural commodity cereal grains.

One comment was received in response to the notice of filing. In that comment, a B. Sachau objected to the proposed tolerances because of the amounts of pesticides already consumed and carried by the American population. She further indicated that testing conducted on animals have absolutely no validity and cruel to the test animals.

The Agency understands the commenter's concerns and recognizes that some individuals believe that pesticides should be banned completely. However, under the existing legal framework provided by section 408 of the Federal Food, Drug and Cosmetic Act (FFDCA) EPA is authorized to establish pesticide tolerances or exemptions where persons seeking such tolerances or exemptions have demonstrated that the pesticide meets the safety standard imposed by that statute.

The Agency disagrees with the commenter's claims regarding animal testing. Since humans and animals have complex organ systems and mechanisms for the distribution of chemicals in the body, as well as processes for eliminating toxic substances from their systems, EPA relies on laboratory animals such as rats and mice to mimic the complexity of human and higher-order animal physiological responses when exposed to a pesticide. EPA is committed, however, to reducing the use of animals whenever possible. EPA-required studies include animals only when the requirements of sound toxicological science make the use of an animal absolutely necessary. The Agency's goal is to be able to predict the potential of pesticides to cause harmful effects to humans and wildlife by using fewer laboratory animals as models and have been accepting data from alternative (to animals) test methods for several years. As progress is made on finding or developing non-animal test models that reliably predict the potential for harm to humans or the environment, EPA expects that it will need fewer animal studies to make safety determinations.

Finally, because the commenter has not provided the Agency with a specific rationale (including supporting information) as to why the Agency's action is inconsistent with the legal standards in section 408 of FFDCA, EPA can not provide any more detailed response to the commenter's disagreement with the Agency's decision.

Therefore, the tolerances are established for residues of spinosad, in or on the raw agricultural commodity grain, cereal, group 15 at 1.5 ppm; grain as aspirated fractions at 200 ppm; rice hulls at 4 ppm; meat of cattle, goats, hogs, horse and sheep at 1.5 ppm; fat of cattle, goats, hogs, horse and sheep at 33 ppm; meat byproducts of cattle, goats, hogs, horse and sheep at 8 ppm; milk at 6 ppm; milk fat at 75 ppm; fat of poultry at 0.5 ppm; meat byproducts of poultry at 0.03 ppm; eggs at 0.05 ppm.

Under section 408(g) of FFDCA, as amended by 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 FFDCA by FQPA, EPA will continue to use those procedures, with appropriate adjustments, until the necessary modifications can be made. The new section 408(g) of 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 FFDCA, as was provided in the old sections 408 and 409 of 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-2004-0042 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 8, 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. Tolerance fee payment . If you file an objection or request a hearing, you must also pay the fee prescribed by 40 CFR 180.33(i) or request a waiver of that fee pursuant to 40 CFR 180.33(m). You must mail the fee to: EPA Headquarters Accounting Operations Branch, Office of Pesticide Programs, P.O. Box 360277M, Pittsburgh, PA 15251. Please identify the fee submission by labeling it “Tolerance Petition Fees.”

EPA is authorized to waive any fee requirement “when in the judgement of the Administrator such a waiver or refund is equitable and not contrary to the purpose of this subsection.” For additional information regarding the waiver of these fees, you may contact James Tompkins by phone at (703) 305-5697, by e-mail at tompkins.jim@epa.gov , or by mailing a request for information to Mr. Tompkins at Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.

If you would like to request a waiver of the tolerance objection fees, you must mail your request for such a waiver to: James Hollins, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.

3. Copies for the Docket . In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit VI.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-2004-0042, 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 establishes a tolerance under section 408(d) of FFDCA in response to a petition submitted to the Agency. 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 o 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 petition under section 408(d) of 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 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).

This is a summary of the Commission's Report and Order, ET Docket No. 04-37 and ET Docket No. 03-104, FCC 04-245, adopted October 14, 2004, and released October 28, 2004. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257), 445 12th Street, SW., Washington, DC 20554. The complete text of this document also may be purchased from the Commission's copy contractor, Qualex International, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. The full text may also be downloaded at: www.fcc.gov. Alternate formats are available to persons with disabilities by contacting Brian Millin at (202) 418-7426 or TTY (202) 418-7365.

The Commission will send a copy of this Report & 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).

1. In the Report and Order, the Commission adopted new rules for Access Broadband over Power Line (Access BPL) systems, a new type of carrier current technology that provides access to high speed broadband services using electric utility companies' power lines. This new technology offers the potential for the establishment of a significant new medium for extending broadband access to American homes and businesses. Given that power lines reach virtually every residence and business in every community and geographic area in this country, Access BPL service could be made available nearly everywhere. This new broadband delivery medium could also serve to introduce additional competition to existing cable, DSL, and other broadband services. In addition, the National Telecommunications and Information Administration (NTIA) has undertaken a significant effort to both study Access BPL technology, including its operating characteristics and interference potential, and to make specific recommendations to the Commission for policies to encourage its implementation and to manage its interference potential. Our staff has worked closely with NTIA on this matter and the policy decisions and rules we adopted reflect that cooperation and embody many of NTIA's recommendations.

2. Along with NTIA, we recognize the concerns of authorized radio service users in both the private and government sectors for the need to ensure that radio frequency (RF) energy from BPL signals on power lines does not cause harmful interference to licensed radio services. The record and our investigations indicate that BPL network systems can generally be configured and managed to minimize and/or eliminate this harmful interference potential. Our goals in developing the rules for Access BPL are to provide a framework that will both facilitate the rapid introduction and development of BPL systems and protect licensed radio services from harmful interference. Specifically, we adopted: new operational requirements for Access BPL to promote avoidance and resolution of harmful interference; new administrative requirements to aid in identifying Access BPL installations; and specific measurement guidelines and certification requirements to ensure accurate and repeatable evaluations of emissions from Access BPL and all other carrier current systems. We believe these actions will promote the development of BPL systems by removing regulatory uncertainties for BPL operators and equipment manufacturers while ensuring that licensed radio services are protected from harmful interference.

3. Carrier current systems use alternating current (AC) electric power lines to carry communications by coupling very low power RF signals onto the AC electric wiring. Traditionally, these systems have included amplitude modulated (AM) radio systems on school campuses and devices intended for the home, such as intercom systems and remote controls for electrical appliances and lamps. Carrier current systems operate on an unlicensed basis under part 15 of the Commission's rules. As a general condition of operation, part 15 devices may not cause harmful interference to authorized radio services and must accept any interference that they receive.

4. The part 15 rules for carrier current systems currently specify radiated and conducted emission limits for devices operating below 30 MHz and above 30 MHz. Carrier current systems operating from 9 kHz to 30 MHz are subject to radiated emission limits on emissions from any part of the wiring or power network connected to the RF power source. For carrier current systems that contain their fundamental emission within the standard AM broadcast band of 535 to 1705 kHz and are intended to be received using standard AM broadcast receivers, there is no limit on conducted emissions. All other carrier current systems operating below 30 MHz are subject to a conducted emission limit only within the AM broadcast band. Carrier current devices operating above 30 MHz must meet the radiated emission limits of § 15.109(a), (b) or (g) for digital devices, which are further divided into two types. Class A equipment includes devices marketed for use in a commercial, industrial or business environment, excluding devices which are marketed for use by the general public or are intended to be used in the home. Class B equipment includes devices marketed for use in a residential environment, notwithstanding use in commercial, business and industrial environments. The rules require Access BPL systems to comply with the limits for Class A or B devices depending on whether they are marketed for use in a commercial, industrial or business environment on the one hand or for use by the general public or in the home on the other. Under this Class A/Class B regime, Access BPL systems that operate on medium voltage lines external to residential environments are considered Class A devices. Carrier current devices that do not operate on frequencies below 30 MHz are subject to the general conducted emission limits below 30 MHz. The existing part 15 rules also address power line carrier systems, which are low-speed carrier current systems operating between 10 kHz and 490 kHz, used by an electric public utility entity for protective relaying, telemetry, etc., for general supervision of the power system. Because of their specialized use and operating frequency range, power line carrier systems are not subject to specific emission limits as are general carrier current systems.

5. The Commission believes that the widespread introduction of Access BPL service would further our goals for broadband service consistent with the challenges indicated. This new technology offers the potential to give rise to a major new medium for broadband service delivery. Services provided on Access BPL could offer high speed Internet and data communications that compete with, complement, or extend the broadband services provided on existing media. Given the ubiquitous nature of the electric power network, Access BPL could conceivably also offer these services to virtually every element of the broadband market, including residential, institutional, and commercial users. In addition, it is possible that Access BPL could provide a means to expedite the availability of broadband Internet service to consumers and business in rural and other underserved areas. We also find that encouraging the deployment of the technology in the United States will support globalization of products and services, promote continued U.S. leadership in broadband technology, and bring important benefits to the American public.

6. The Commission understand the significant concerns of licensed radio service users about the potential for Access BPL services to cause harmful interference to their operations. It is our intention to ensure that Access BPL operations do not become a source of harmful interference to licensed radio services. Based on extensive research, analyses, and practical experience, the Commission also continues to believe that the interference concerns of licensed radio users can be adequately addressed and that Access BPL systems will be able to operate successfully on an unlicensed, non-harmful interference basis under the part 15 model. In this regard, we find that the harmful interference potential from Access BPL systems operating in compliance with the existing part 15 emission limits for carrier current systems is low in connection with the additional rules we adopted. From the information provided by our field tests, the tests conducted by NTIA, theoretical predictions by NTIA and ARRL, and experience of the several tests of Access BPL systems, we observe that the potential for any harmful interference is limited to areas within a short distance of the power lines used by this technology. As emphasized by NTIA's Phase 1 study and comments, interference can be rapidly eliminated through various means should it occur. We pointed out to the individual amateurs commenting in this proceeding that the definition of “harmful interference” as used in § 15.5 of the rules is set forth in § 2.1 of the rules. We disagree with ARRL's position that there is no reason to act now in this proceeding and that we should delay our decision on rules for Access BPL to provide more time to develop rules to prevent this technology from causing harmful interference. As indicated, the broadband service capabilities of Access BPL systems offer important opportunities for establishing a new medium for broadband access and for introducing new competition in the broadband market. We believe that it is important to set forth rules that will promote this service now, rather than delay. In addition, the record provided in response to the Inquiry and the NPRM , including the extensive studies conducted by NTIA, is more than sufficient to assure us that the rules we adopted will adequately protect licensed services from harmful interference. While some cases of harmful interference may be possible from Access BPL emissions at levels up to the part 15 limits, we agree with NTIA that the benefits of Access BPL service warrant acceptance of a small and manageable degree of interference risk.

7. As stated in the NPRM , we believe that, on balance, the benefits of Access BPL for bringing broadband services to the public are sufficiently important and significant so as to outweigh the limited potential for increased harmful interference that may arise. Moreover, the Commission continue to believe that cases where interference may occur or where its possible occurrence would impact critical services can be addressed through additional regulatory measures. These additional measures will generally require Access BPL operators to reduce emissions or avoid operation on certain frequencies in order to protect licensed services, to use equipment that can alter its operation by changing operating frequencies to eliminate interference, to make available information that will assist the public in identifying locations where Access BPL operations are present, and to provide notice to radio users before commencing local BPL operations. In this way, the new rules provide effective means for preventing any interference and will ensure that any instances of interference that may occur can be quickly identified and resolved. We emphasize that Access BPL systems will continue be treated as unlicensed part 15 devices and as such will be subject to the conditions that they not cause harmful interference and that they cease operation if they do cause such interference, as required by our rules. As discussed in paragraph 50, of the Report and Order, except for a few specific frequencies that are reserved for international aeronautical safety operations, we do not believe that excluding BPL operations from frequencies used by any specific service, such as the low VHF TV bands, is necessary or appropriate. Rather, we believe requiring BPL equipment to have the capability to avoid any locally used frequency is the most effective approach to ensuring that harmful interference to licensed operations is avoided.

8. The Commission is amending its part 15 rules with changes intended to facilitate the deployment of Access BPL technology while protecting licensed users of the spectrum. Specifically, we are: defining Access BPL for purposes of our rules; maintaining the existing part 15 emission limits for carrier current systems for Access BPL; requiring that Access BPL devices employ adaptive interference mitigation techniques; requiring that Access BPL system operators provide information on the areas where their systems are installed and other technical parameters in a central data base that would be accessible by the public; and adopting specific measurement guidelines for both Access BPL and other carrier current systems to ensure that measurements are made in a consistent manner and provide for repeatable results in determining compliance with our rules.

9. The Commission adopted a modified version of the proposed definition of Access BPL that includes changes as suggested by the commenting parties. In this regard, we agree that the definition of Access BPL should not include the low-speed power line carrier systems used by electric utilities as defined in our rules. Transmissions on these systems have very short duty cycles that pose very low interference potential as opposed to the constant operation that characterizes Access BPL. We also agree that the definition for Access BPL should limit the low frequency cut-off to above 1.705 MHz, which is the upper frequency for the AM broadcast band. We agree that the definition for Access BPL should not include power lines located within a customer's premises or within a utility's own premises. These lines generally carry low voltage power, are not under the ownership or integral control of the power service operator, are isolated from the medium voltage lines by a distribution transformer such that a bypass device must be used to reach them with BPL signals, and pose lower potential as sources of interference because their emissions are attenuated by the structure in which they are located. We also see no need to limit ownership or control of BPL operations to electric utility operators. We believe that an independent BPL provider can take the same steps and precautions as an electric utility operator in working with its equipment vendor, the power system, and licensed radio users to ensure that an Access BPL system does not cause harmful interference and to resolve any interference. We also see no need to specifically mention aerial or underground lines in the definition. Furthermore, we note that the record in this proceeding only addresses Access BPL systems operating over medium voltage and low voltage lines. Because the high voltage lines are located physically higher, can carry very high voltages, and have different configurations as well as characteristics with respect to potential harmful interference, we are excluding them from the definition for Access BPL at this time. Access BPL systems intended for high voltage lines can however operate under the requirements for experimental licensing in part 5 of the Commission rules.

10. We therefore are amending § 15.3 of the rules to include the following definition for Access BPL:

11. While we are not generally addressing rules for In-House BPL systems, except for measurement procedures, we do find it useful and appropriate to set forth a definition of such systems in the rules. As NTIA and Southern point out, specifying a definition of In-House BPL systems will fully define all forms of BPL and help to clarify the differences between Access BPL and In-House systems. We find that the definition of In-House BPL suggested by NTIA properly identifies these systems. Accordingly, we adopted the following definition for In-House BPL:

We also encourage industry efforts to develop standards for In-House BPL systems and devices that are complementary to and compatible with Access BPL operations.

12. Access BPL Systems Above 80 MHz. We agree with Corridor that Access BPL systems operating in higher regions of the spectrum, such as the Corridor Access BPL system at 5.8 GHz, should not be subject to the rules adopted herein for Access BPL systems operating in the HF and low VHF spectrum. We find that the record in this proceeding does not provide sufficient information regarding Access BPL operating in spectrum above 80 MHz, hence a decision regarding this type of Access BPL technology cannot be effectively rendered at the present time; however, Access BPL systems not covered in the above definition are subject to existing applicable part 15 rules for carrier current systems. However, we will monitor the development of Access BPL systems that operate on frequencies above 80 MHz and may consider additional requirements for Access BPL systems operating above 80 MHz in a future rulemaking if appropriate.

13. General Emission Limits. The Commission continues to believe that it is appropriate to apply the existing part 15 radiated emission limits to Access BPL systems. We are not persuaded by the arguments of ARRL and others representing licensed spectrum users that the current emission limits are insufficient to limit the general interference potential of these systems. The 0 dBμV/m limit suggested by the ARRL is typically below the noise floor in the HF and low VHF bands and would be unnecessarily and prohibitively restrictive for Access BPL operators. Along with NTIA, we conclude that the current emission limits will restrict Access BPL systems to very low emitted power levels in comparison to the signals of licensed radio operations. The effect of these limits will be to constrain the harmful interference potential of these systems to relatively short distances from the power lines that they occupy. In fact, in most cases the level of emissions from Access BPL systems will be at or close to the noise floor at distances beyond a hundred meters of an installed power line. We recognize that some radio operations in the bands being used for Access BPL, such as those of Amateur radio licensees, may occur at distances sufficiently close to power lines as to make harmful interference a possibility. We believe that those situations can be addressed through interference avoidance techniques by the Access BPL provider such as frequency band selection, notching, or judicious device placement; the rules we are specifying facilitate such solutions. We do not see evidence that BPL operation will significantly contribute RF energy to generally raise the background noise level. In addition, because power lines inherently can radiate significant noise emissions as noted by NTIA and ARRL, good engineering practice is to locate sensitive receiver antennas as far as practicable from power lines. This practice will also help prevent interference from Access BPL emissions. In fact, as stated by NTIA, power line noise emissions at frequencies up to 800 MHz may actually be reduced as Access BPL systems are deployed. Furthermore, we see no need to impose a strict band-pass filtering on Access BPL, and we deny Echelon's request in this regard.

14. Although we agree with ARRL that Access BPL on overhead lines is not a traditional point-source emitter, we do not believe that Access BPL devices will cause the power lines to act as countless miles of transmission lines all radiating RF energy along their full length. First, the part 15 emission limits for carrier current systems have proven very effective at controlling interference from such systems. Also, for the reasons indicated by PPL Telcom, we believe that the design and configuration of Access BPL systems will be inconsistent with the development of cumulative emissions effects for nearby receivers. Moreover, the NTIA Phase 1 Study and our own field measurements of Access BPL installations indicate that these systems are not efficient radiators, nor are their emissions cumulative such that they permeate areas in which they are located. Rather, we find that emissions from Access BPL systems tend to dissipate after a short distance from a coupler along a line, and then remain relatively the same for some distance. Along the line there also may be multiple points where emissions may be relatively higher but within the part 15 limits. However, because the signal level decreases significantly with distance perpendicular from the line, the potential for interference also decays rapidly with distance from the line. To ensure that the effects of the power line as a radiator are taken into consideration when testing for compliance with our part 15 rules, the measurement procedures we adopted for Access BPL systems, as discussed in the Report and Order, specify that emission measurements are to be made at several specific distances from the Access BPL equipment source, and that measurements are to be taken parallel to the power line to find the maximum emissions from the BPL system.

15. Notwithstanding our decision on emission limits, we do recognize that Access BPL systems present concerns for licensed users in the HF and low VHF bands, given the propagation characteristics of RF signals in the range of frequencies being used for these systems, the diversity of users of these frequencies, and the fact that Access BPL devices will be installed at many locations in an area. While we conclude, that the likelihood that interference from Access BPL operations will occur is low at the signal levels allowed under the current part 15 emission limits, such interference could occur in limited situations despite the intentions of BPL operators. Moreover, even if interference were to occur to amateur operations at the distances indicated by the ARRL, as recommended by NTIA, there are additional interference mitigation techniques that we are requiring of BPL providers to address such interference potential. We believe that such steps should be taken, particularly in those cases where the occurrence of interference would affect critical services or where interference could be anticipated to occur.

16. We find no need to subject Access BPL equipment to a conducted emission limit that would apply for compliance measurement purposes before the equipment is shipped and installed. We note that Access BPL manufacturers already test their equipment for the proper power levels in a laboratory as part of their manufacturing procedures, and in any case, the radiated emissions from a representative model of equipment would be measured in-situ at three sites as part of the equipment authorization process. We therefore find that requiring conducted emission tests in the laboratory would be a redundant and unnecessary procedure.

17. The Class A limits are appropriate because Access BPL devices are not marketed to the general public and operate on the medium voltage power lines as commercial facilities. Those portions of Access BPL systems that operate above 30 MHz on the low-voltage power lines from the distribution transformer to a residence and all in-house wiring connected to a BPL device are subject to Class B radiated emission limits. The Class B limits are appropriate for these operations because they are located within residential environments and are marketed for use by the general public. Although Access BPL systems are required to comply with the less stringent Class A limits, operators will nonetheless have a strong incentive to exercise the utmost caution in installing and operating their systems to avoid harmful interference and ensure uninterrupted service to their customers, given that there is significant investment in the deployment of the service. We do not find that a 10 dB increase in the allowable emissions levels is warranted or desirable for systems that can reduce emissions by 40 dB in selected bands, as suggested by Satius. We believe that it is important that Access BPL systems comply with the emission limits across their entire operating range in order to minimize the potential for interference in all bands, not just those where interference may be more likely at a particular location.

18. Other Protection Measures. We agree with NTIA and the parties representing public safety agencies that critical Federal Government and other services specified by NTIA and public safety warrant additional protection. These services, including national defense, maritime distress and safety, aeronautical navigation and communications, emergency response, radioastronomy, and others provide important safety and research services whose functions would be afforded additional protection against possible interference from Access BPL operations. We agree with and adopted NTIA's approach for addressing additional protection to critical Federal Government and other radio operations. The excluded frequency bands amount only to a total of 1731 kHz, or 2% of the spectrum within the 1.7-80 MHz band. The exclusion zones are relatively few, on only the 2173.5 to 2190.5 kHz global maritime distress signaling band with prohibited distances of 1 km from coast station facilities, and 73.0-74.6 MHz band used by the ten Very Long Baseline Array facilities of radio astronomy observatories with prohibited distances of 29 km and 11 km for Access BPL systems using overhead medium voltage power lines and other Access BPL implementations, respectively. We agree with NTIA that the potential for interference from Access BPL to the critical services in exclusion zones is somewhat greater for transmissions carried on overhead medium voltage lines than other Access BPL implementations, i.e., transmissions carried on underground lines or low voltage lines. In this regard, emissions from underground power lines are generally attenuated by the earth materials in which they are buried, while emissions from low voltage lines are generally lower because such lines are generally used only for short feeder links from a transformer to a customer service location and these lines are more closely spaced with an accompanying neutral line—and in fact are often twisted together with the neutral line. The close spacing—together with the shorter length—reduces radiated RF emissions relative to those from overhead medium voltage lines. In addition, the requirement to contact and work with the Federal Government in the 53 consultation areas is not generally expected to result in major impact on Access BPL operators' flexibility to use specific frequency bands. We therefore find that avoiding operation on the frequencies excluded under these restrictions and requirements will not be burdensome for Access BPL operators and manufacturers in order to protect distress and safety communications. Indeed, several manufacturers and Access BPL operators have indicated that they are capable of, and already do, notch out certain frequency bands. We disagree with Ameren, PLCA, and Southern that the mandatory consultation provisions imposed on Access BPL operators impose burdens on Access BPL operators not borne by other unlicensed broadband operators without countervailing benefits. For example, in part 76, we require that cable operators conduct measurements annually to ensure that signal leakage does not create interference risks. Moreover, the distributive nature and other technical characteristics of Access BPL pose somewhat higher potential for interference than point-source wireless broadband systems that warrant additional protective measures. In addition, the consultation actions will benefit Access BPL operators by leading them to select frequencies at the beginning of their service so as to avoid interference to critical services that might have to be corrected later. Accordingly, we adopted NTIA's list of consultation areas, excluded bands, and exclusion zones to which Access BPL equipment must adhere. For all other radio communication operations not addressed in these special provisions, radio operators have the opportunity to inform local BPL operators of the pertinent details of their operations and BPL operators have the opportunity to apply that information as appropriate to prevent interference.

19. With regard to the consultation areas, we will require Access BPL operators to provide notification to the parties listed as Federal Government contact points, as designated in the rules, for the area in which their systems will operate at least 30 days prior to initiation of service. The notification shall include: the name of the Access BPL provider; the frequencies of the Access BPL operation; the postal zip codes served by the Access BPL operation; the manufacturer of and type of Access BPL equipment being deployed ( i.e. , FCC ID); point of contact information (both telephone and e-mail address); and the proposed or actual date of initiation of Access BPL operation. We will also require that systems located in consultation areas that were in operation prior to the effective date of these rules provide this notice to the appropriate contact point within 45 days of that date. NTIA has indicated that it plans to arrange to have information made available to BPL operators on Federal Government operations. We expect parties to consult in good faith to ensure that no harmful interference is caused to licensed operations and that any constraints on BPL deployments are minimized to those necessary to avoid harmful interference.

20. As indicated in the NPRM, we believe that the risk of harmful interference to State and local public safety services, i.e. , EMS, fire, law enforcement, and emergency management agencies from Access BPL operations is essentially low. In general, we believe that a properly designed and operated Access BPL system will pose little interference hazard to services such as aeronautical, maritime and public safety that are designed to operate with relatively high signal-to-noise ratios. In analyzing the potential for harmful interference to public safety systems, we took into account the fact that low-level part 15 signals from Access BPL devices attenuate rapidly as the distance from the power line increases; and that most public safety systems are designed so that mobile and portable units receive a signal level significantly above the noise floor. From an interference analysis standpoint, this latter characteristic distinguishes public safety systems from amateur radio stations using high-sensitivity receivers to receive signals from transmitters often thousands of miles away. However, it is foreseeable that under certain rare circumstances a public safety unit could: (a) Operate in close proximity to a power line carrying Access BPL transmissions at a location where field strength is near the part 15 limit; (b) be tuned to a frequency radiated by an Access BPL device; and (c) be receiving a weak signal from a distant, or obstructed, public safety base station. In general, potential harmful interference under these conditions would be limited to public safety units operating on systems using low-band VHF channels (25-50 MHz). We therefore conclude that the interference protections set forth will be adequate to foreclose harmful interference to public safety systems except perhaps under such unusual circumstances.

21. However, we also conclude that public safety systems merit additional protection because of the often critical and/or safety-of-life nature of the communications they provide. Given the importance and nature of public safety communications, we believe it is necessary to require Access BPL systems to notify the public safety agencies in their local areas, i.e. , State and local police, fire, emergency medical, any special emergency coordinators, call box operators, and other entities that are eligible for public safety licenses under § 90.20 of the rules. This advance notification will provide public safety operators with an opportunity to assess whether there are portions of its geographic area of responsibility about which it should make special arrangements with the Access BPL operator in order to avoid interference. Consistent with our decision on notifications for Federal Government consultation areas, we will require that this notification be provided to local public safety agencies at least 30 days prior to a system's initial operation, the activation of any major extensions of the system, or any changes in its operating characteristics, i.e. , transmitting frequencies. The notification shall include: (1) The name of the Access BPL provider, (2) the frequencies of the Access BPL operation, (3) the postal zip codes served by the Access BPL operation, (4) the manufacturer of and type of Access BPL equipment being deployed ( i.e. , FCC ID), (5) point of contact information (both telephone and e-mail address), and (6) the proposed or actual date of initiation of Access BPL operation. We will also require that systems in operation prior to the effective date of these rules provide this notice to local public safety agencies within 45 days of that date.

22. We do not see a need to establish Access BPL-free zones around airports, military bases, hospitals, police stations and fire stations, as requested by NAC/Amherst. To the extent that these services warrant special protection, they will be afforded protection through the excluded bands, exclusion zones and consultation areas specified by NTIA. We similarly do not find that amateur radio frequencies warrant the special protection afforded frequencies reserved for international aeronautical and maritime safety operations. We note that in many instances amateur frequencies are used for routine communications and hobby activities. While we recognize that amateurs may on occasion assist in providing emergency communications, we believe that the general part 15 provisions and the specific provisions being adopted for Access BPL operations are sufficient to protect these amateur operations.

23. We continue to believe that it is important that Access BPL systems include capabilities that allow them to modify their operations to mitigate or avoid instances of harmful interference that may arise. These capabilities will allow Access BPL system operators to resolve interference found to occur at specific locations or in specific areas of their plant in an expeditious manner and without disrupting service to their broadband service subscribers. We agree with NTIA that Access BPL operators would have strong incentives to voluntarily implement such equipment and operating practices. We also agree with NTIA that, notwithstanding these incentives, it is necessary that we adopt requirements for interference mitigation capabilities to ensure that any interference can be resolved quickly without the need to address the tension that might arise over the possible disruption of service to BPL subscribers if mitigation capabilities were not available. The concerns of those commenting parties who argue that the mitigation requirements would not be sufficient to protect their operations from interference by BPL operations are misplaced. That protection will be provided by: (1) The emissions limits for Access BPL systems; (2) the provisions for consultation areas, excluded bands, and exclusion zones; and (3) the requirement that Access BPL systems not cause interference, as set forth above. The mitigation requirements are intended to ensure that Access BPL systems are designed with features that support interference mitigation, both during initial installation, if sensitive local communications systems are identified in advance, and after installation, when the newly required operational capabilities will allow Access BPL system operators to expeditiously resolve any instances of interference that may occur, without the need to cease operations and thereby disrupt the broadband data services they provide to their subscribers.

24. Accordingly, we have adopted requirements that Access BPL systems incorporate capabilities to modify their systems' operations and performance to mitigate or avoid potential harmful interference to radio services and to deactivate specific units found to actually cause harmful interference that cannot be remedied through modification of their operations as proposed, but with certain modifications. Our approach in specifying these requirements is to provide Access BPL equipment manufacturers and operators with flexibility to design and implement a broad range of products and system designs to meet particular service and operational needs while ensuring that systems have the capabilities to make operational changes to avoid any interference that may arise. The specific provisions of the mitigation requirements and the comments that concern them are addressed below. We also see no basis for subjecting Access BPL systems to requirements for addressing interference complaints that are different and more stringent than our procedures for addressing interference from other types of unlicensed devices. In this regard, we will continue to subject Access BPL systems to the procedures of § 15.5(c) of the rules. Under this rule, parties who believe they are experiencing interference from an unlicensed device are first expected to bring the matter to the attention of the operator of the unlicensed device. If that action does not resolve the interference, the party may then seek intervention by the Commission.

25. To be more specific, in the event a BPL interference complaint is filed by a licensee with the Commission, the Commission will contact the complainant and/or the BPL provider to determine if they have first attempted to resolve the interference complaint among themselves. If they have not made such an attempt, the complaint will be forwarded to the BPL provider for action and the complainant notified that they will be contacted by the BPL provider concerning their interference complaint. The Commission may periodically monitor the resolution process to ensure that the parties are working in good faith and making appropriate progress in resolving the interference complaint. If the parties have attempted to address the complaint but the matter remains unresolved, the Commission, through its Enforcement Bureau with assistance from the Office of Engineering and Technology will review the complaint and take appropriate action. In general, the Commission will contact the BPL operator and request information on what steps they have taken to address the licensee's complaint. If these actions are deemed insufficient to resolve the interference complaint, the Commission will instruct the BPL operator to take immediate remedial actions, such as “notching” or avoiding specific frequencies, or ceasing operations. In specific instances, the Commission may undertake field testing and measurements to address interference complaints and determine the most appropriate remedial action.

26. Frequency Avoidance. We conclude that the most appropriate approach regarding mitigation techniques that involve altering system operation is to require that Access BPL systems incorporate the capability to avoid the use of specific frequency bands. The ability to alter a system's operation to notch-out transmissions from specific frequencies where interference is occurring is a necessary feature for resolving interference without disrupting service to BPL subscribers. While other mitigation capabilities, such as adaptive or commanded power control, are desirable system features that can serve to reduce interference potential, they generally would provide a much lower degree of benefit in eliminating interference than frequency avoidance. Limiting the requirement for operational modification capabilities to frequency avoidance is also consistent with our intent to minimize the impact of these requirements on manufacturers and system operators so as preserve their flexibility to design products and systems that will best meet the needs of Access BPL subscribers.

27. In considering specifications for the notching requirement, we find that the most important consideration is to ensure that the notch provides enough filtering to effectively reduce the potential for interference. Our experience in examining the field performance of various Access BPL operations indicates that at frequencies below 30 MHz, a notching capability that provides at least a 20 dB reduction of Access BPL emissions below the current applicable part 15 emission limits is adequate to resolve interference occurrences that might result to mobile reception from such operations. In this regard, we will generally assume that a 20 dB notch is sufficient to resolve any harmful interference that might occur to mobile operations, given the low signal levels allowed under the part 15 emission limits and the fact that a mobile transceiver can readily be re-positioned to provide some separation from the Access BPL operation. The interference potential from emissions at this low level would be limited to a very short range from an Access BPL device or a power line on which Access BPL transmissions are carried. We also believe that notching at this level with some distance separation will generally avoid interference to fixed operations, including those that use more sensitive receivers. Above 30 MHz we believe that a notching capability of at least 10 dB is sufficient to provide the same level of protection, given the more stringent part 15 emission limits that apply to Access BPL transmissions above 30 MHz and the increased attenuation of emissions that occurs from propagation losses as the frequency of operation increases. With regard to NAS/CORF's requests for protection of radioastronomy, we note that special protections are provided for radioastronomy in the exclusion zones and consultation requirements for Access BPL.

28. We do not believe it is necessary to specify the bandwidth over which the notching capability must function. Rather, we will adopt the more general requirement that Access BPL systems must be capable of avoiding transmissions in any frequency band or bands in order to eliminate any instances of interference with the operations of licensed radio services. We therefore are amending our rules to require that Access BPL devices have the capability to reduce emissions by at least 20 dB below the part 15 emission limits in frequency bands below 30 MHz and 10 dB below those limits in frequency bands 30 MHz and above. We believe that these provisions adequately set forth the structure of the required capabilities for modifying the operation of an Access BPL system. We are not specifying requirements for use of the frequency avoidance capabilities. Rather, we believe that system operators should have the discretion to use this capability or any other alternative available to them as they might deem appropriate to resolve specific situations involving interference that they may encounter in the course of their operations.

29. We do not find any justification for a requirement that Access BPL operators notch the frequencies of any or all of those services that use frequencies in the HF and low VHF bands. We believe that the emission limits, consultation areas, excluded bands, exclusion zones, and the requirement that Access BPL systems not cause interference, are generally sufficient to control the interference potential of these systems. The required notching capability will enable a system operator to address any specific instances of interference that might otherwise arise. We also decline to adopt a rule requiring transmission of identification codes. As NTIA states, such codes could increase the potential for interference from Access BPL operations. We also do not believe that it would be practicable for ARINC or any other operator to identify an Access BPL system as the source of interference and contact its operator on a real time basis to resolve the interference. As NTIA indicates in its letter of September 24, 2004, no practical method has been identified for Access BPL systems to transmit an identifying code. We believe that the Access BPL notification requirements will provide sufficient information to locate and mitigate interference.

30. Shut Down Requirement. We continue to believe that Access BPL equipment and systems should have the capability to deactivate individual system components. This feature will allow systems to deactivate limited portions of their plant so that localized interference problems can be addressed without affecting service to all of their subscribers. As a secondary benefit, the shut-down feature will allow system operators to rapidly diagnose whether their operations are causing reported interference. We are also requiring that the shut-down feature in individual devices be remote-controllable from the central system operations facility or other appropriate location. This will allow rapid response to resolve interference in any emergency or other urgent situation that might arise. We also agree with Progress Energy the required shut-down capability should be manually controlled. Moreover, we have no record on which to base a decision on the conditions under which an automated capability would be activated. We also recognize that, depending on how it would be triggered, an automated shut-down capability could unnecessarily have detrimental effects on a power utility service's operations in addition to disrupting broadband service to its Access BPL customers.

31. It is not our intention that a service shut-down be the first step in a system operator's response to a valid interference complaint. As suggested by several of the commenting parties, we would anticipate that shut-down would be a last resort when all other efforts to satisfactorily reduce interference have failed. We disagree with Ameren that the shut-down requirement will add unnecessary costs and complexity to Access BPL equipment. As NTIA and our own field testing indicate, most Access BPL systems and equipment already include the capability to shut down specific components of their operation. Accordingly, we are requiring that Access BPL systems incorporate features that will allow the deactivation of individual components on a remote-controlled basis, to be implemented. We reiterate, however, that the Commission, through a duly authorized representative, is the sole authority that may direct an Access BPL operator to cease operating any of its devices to eliminate interference.

32. We believe that the Access BPL notification and database requirements proposed in the NPRM are appropriate and sufficient to ensure that any potential interference to licensed services from BPL operations can be adequately identified and quickly addressed. The primary intent of our notification and database requirements is to ensure that licensed users of the spectrum have a publicly accessible and centralized source of information on BPL operations to determine whether there may be Access BPL operations on particular frequencies within their local area so that any incident of harmful interference can be resolved should it occur. The information contained in the notification database need only be sufficient to determine whether there may be a BPL operation in the local area, the nature of the BPL operations, whether the BPL system is operating on frequencies that could potentially be a source of harmful interference to the licensed user and to identify an appropriate contact person who can work directly with the complainant to resolve the harmful interference if it is determined to be caused by the local BPL operations. Additional or more detailed relevant information needed by a radio operator could be requested via the contact person indicated in the data base, as appropriate.

33. We therefore are adopting rules that will require the BPL industry to establish within July 6, 2005, a centralized publicly accessible Access BPL notification database. We note that two organizations have indicated their willingness to perform this task and that the issue of “independence” of the database manager has been raised by some of the commenting parties. The responsibilities and duties of the database manager are to maintain complete, accurate and timely records of FCC-mandated information. We are not requiring, as some parties have suggested, that the database manager be involved in, monitor, or manage the interference resolution process. The party responsible for avoiding interference is clearly the Access BPL operator and his responsibilities are clearly set forth in the existing procedures under § 15.5(c) of the Commission rules. We therefore do not find that the database manager need be an “independent” third-party with no relationship to the BPL or utility industry and are not adopting such a requirement.

34. With regard to the information to be included in the database, we adopted rules that will require the Access BPL operator to provide the BPL industry designated database manager with the following information 30 days prior to initiation of any operation or service: (1) The name of the Access BPL provider; (2) the frequencies of the Access BPL operation; (3) the postal zip codes served by the specific Access BPL operation; (4) the manufacturer and type of Access BPL equipment being deployed ( i.e. , FCC ID); (5) point of contact information (both telephone and e-mail address) for interference inquiries and resolution; and (6) the proposed/or actual date of Access BPL operation. The database manager shall be required to enter this information into the publicly accessible database within 3 business days of receipt. This will allow some period of time for the database manager and BPL provider to address any questions with regard to information submitted and to ensure that information entered into the database is correct. We believe that the above information provides sufficient specificity for identifying potential interference while at the same time avoiding valid concerns that sensitive information on critical infrastructure not be revealed.

35. We believe that using zip codes, as suggested by Southern, would sufficiently identify the area of Access BPL deployment without revealing specific sensitive information and would facilitate a more organized approach to identification and resolution of harmful interference. We note that zip codes are easily understood and can be identified by both licensees and BPL operators. With regard to those parties that request more comprehensive information, we do not find that benefits of providing such information in the database would outweigh the substantial cost of collecting and reporting this additional information. We note, for example, that NTIA's proposals to require information on modulation types, number of carriers, range of transmission duty cycle, minimum and maximum carrier spacing, symbol rates per carrier, etc., would provide little additional guidance on whether interference were being caused in a particular instance as compared to the more simple requirement of identifying BPL operating frequencies. In addition, we are requiring that BPL equipment must be certified and therefore more detailed technical information will be available through our equipment authorization files for those parties desiring such information. We also are not requiring Access BPL operators to have multi-lingual contact persons. We believe that requiring both telephone and e-mail contact information is sufficient to address interference inquiries. We are also not requiring that telephone contact positions be staffed 24 hours per day and seven days a week. We believe that our emission requirements and other mitigation rules will ensure that interference is generally avoided. We believe that telephone contact staffing during normal business hours is sufficient and also note that e-mail would generally allow interference reports to be filed at any time.

36. We expect the Access BPL operators and licensees to cooperate in good faith to identify and resolve instances of harmful interference. We require the notification database for Access BPL operators to notify the operation of its devices and systems to facilitate the speedy resolution of interference. Speedy resolution of interference will not result if the database information on Access BPL deployments is abused and the BPL operators are deluged with frivolous interference complaints. We expect the Access BPL operators to take every complaint of interference seriously and to diagnose the possible cause of interference quickly. At the same time, we expect the complainant to have first taken reasonable steps to confirm that interference rather than a receiver system malfunction is occurring and, to the extent practicable, to determine that the interference source is located outside the complainant's premises. We expect both parties to cooperate to determine a mutually acceptable schedule to diagnose and resolve the interference complaint, recognizing that the Access BPL operator may have to prioritize any complaints of interference that it receives ( e.g. , from a public safety agency). With regard to public safety operations, however, we will require that the BPL operator respond to complaints of harmful interference from public safety users within 24 hours; the BPL provider shall be required to immediately cease the operations causing the public safety complaint if it fails to respond to such complaint within 24 hours. Any complaints of interference that are not resolved in accordance with the mutually agreed schedule may be filed with the Commission along with the particulars of the interference case. Upon receipt of the interference complaint, the Commission will investigate the complaint and take action against the Access BPL operator if it is found to be causing harmful interference. If, on the other hand the Commission uses its resources to investigate an interference complaint that is found to be frivolous, the Commission will impose appropriate sanctions for abuse of its administrative process.

37. We find the extensive measurement and modeling efforts presented in the NTIA Phase 1 Study and the Technical Appendix to NTIA's comments to be highly useful in our efforts to develop appropriate measurement procedures for Access BPL. The scientific engineering in those submissions clarifies the interference potential of Access BPL on radio reception and the recommended techniques for measurement of Access BPL emissions provide us with a well thought-out plan on which to base our decisions on measurement issues. Our decision, takes into account NTIA's research and adopts a modified version of its recommendations.

38. We find that our proposed measurement procedure for testing Access BPL systems including the presence and testing of all of their electronic components to be reasonable as each component is part of the Access system of that installation. We do not agree with Southern that the testing should be limited to three representative signal injection points. Southern believes that the highest levels of emissions on overhead systems are found at the signal injection point, and it states that the biggest variable affecting emissions is impedance mismatch between the signal injection system and the power system at the point of injection, which could be a coupler or a repeater. We agree with Southern that each injection point affects the radiated emissions. However, Southern's suggestion of selecting only representative signal injection points precludes the presence of other components, e.g. , booster, concentrator, extractor, etc. if they should be together at an installation to make up the complete Access BPL system. Our requirement for a typical installation takes into account the topology of the power lines and of all Access BPL devices at that installation, thus choosing only representative injection points, as Southern recommends, does not cover the installation as a whole. Accordingly, we will keep our proposed in-situ requirements for including and testing all components of an Access BPL system. We also find that our measurement procedure for testing Access BPL systems in-situ at three typical underground locations along a number of radials consistent with testing other part 15 carrier current devices. The selection of three typical underground installations is a streamlined procedure, compared to testing each and every installation, as recommended by some parties; therefore we do not agree with Main.Net that only one underground location should be tested. We discuss below the issues with respect to measuring radiated emissions from Access BPL systems on overhead power lines.

39. Measurement Distance. Despite the stated aversion of NTIA and ARRL to distance extrapolation, we recognize that at many in-situ test locations, it may not be possible or practicable to measure at the proposed fixed distances of 10 and 3 meters. If a 10-meter distance places the measurement antenna on a roadway, safety may dictate increasing the distance to, e.g. , 14 meters in order to position the testers out of harm's way. Hence, we expect that distance extrapolation will be necessary for in-situ testing. We note that NTIA's latest computer modeling results show that the variation of field strength with distance is consistent with the existing part 15 distance extrapolation when used with the slant range distance to the power line as was proposed in Appendix C of the NPRM. We also note that although the ARRL and ARINC recommend the use of a 20 dB per decade extrapolation factor rather than the existing 40 dB per decade in part 15 for frequencies below 30 MHz, Ameren states that it has determined the characteristics of the fields near the line support the case for assuming a 40 dB per decade decay rate of the field away from the line and recommends the use of the existing 40 dB per decade extrapolation factor. Given the lack of conclusive experimental data pending large scale Access BPL deployments, we will continue the use of the existing part 15 distance extrapolation factors in our rules, but with the slant range rather than horizontal distance. If new information becomes available that alternative emission limit/distance standards or extrapolation factors would be more appropriate, we will revisit this issue at another time.

40. Receive Antenna Height and Correction Factor. NTIA expresses a possible need for “adjustments” to measured data due to three factors: (1) Effect of antenna height, (2) effect of distance (extrapolation methods), and (3) effect of using an H-field sensing antenna to predict E-fields in the near-field region. However, NTIA initially provided a specific recommendation regarding only one of these issues—correction for the effect of antenna height. Our modeling suggests that there is a linkage between these factors. We believe that all three areas must be considered together in order to develop appropriate measurement procedures. Furthermore, NTIA's recommendation for a 5 dB correction factor is based on a constant measurement antenna height of 1 meter. On the other hand, for frequencies above 30 MHz, our current measurement guidelines require varying the receive antenna height from 1 to 4 meters, hence higher peaks at a higher antenna height would be found with our test procedure, obviating the need for a height correction factor at those frequencies. However, we recognize that NTIA's method of keeping the antenna height constant and applying a height correction factor is aimed at simplifying the measurement procedure; hence, this might be an alternative testing procedure that BPL providers may actually prefer. The Commission's rules have historically allowed the use of alternative methods for compliance measurements, based on good engineering practices. In deference to NTIA's extensive work culminating in the NTIA recommendations in this proceeding, we will adopt NTIA's recommendations for antenna height and correction factor as an alternative method within the measurement guidelines of Appendix C of the Report and Order. We note however that the methods are mutually exclusive, i.e. , the BPL tester must choose either the NTIA alternative method or the FCC method, and cannot mix and match the two.

41. Type of Antenna Used for Testing. Given NTIA's concurrence with the use of a magnetic loop antenna for emission measurements below 30 MHz and electric field sensing antennas above 30 MHz, we are adopting our proposal to use these antenna types in Access BPL emission measurements. This decision is consistent with the use of such antennas for testing other types of part 15 devices.

42. Effects of Power Lines on the Radiated Emissions of a BPL Device. We are concerned that NTIA's recommendation for performing field strength measurements all along a 1200-meter section of the connected power line wiring would be difficult and burdensome for Access BPL system operation. In this regard, we note that such a process could be time-consuming and would require many individual measurements, when power wiring may be many miles long, and the interval between measurements may have to be a small fraction of a wavelength in order to ensure that the true peak is captured. It is clear from the modeling results presented by NTIA that the maximum emission from the system often occurs further down-line from the coupler than the one-wavelength maximum distance proposed in Appendix C of the NPRM. However, it is also clear from the NTIA data that the true maximum is not significantly larger than the maximum that would be found over the limited search space that we proposed. We understand the concerns of Ameren, Southern, and other BPL providers regarding an overly large number of necessary measurements, which could increase the costs of compliance testing. We therefore believe that the approach in our proposed measurement guidelines strikes an appropriate balance in avoiding a potentially very large number of measurements by allowing the use of the mid-band frequency in determining measurement distances down-line for a given frequency band of operation. We also note that, at each of the five specified down-line points, measurements must be made at all operating frequencies of the Access BPL device, in order to find the peaks.

43. We concur with NTIA's recommendation that measurements be made sequentially with the Access BPL devices operating at all frequencies at which they are capable. This is consistent with existing part 15 requirements, and with our proposed measurement guidelines. It is important that radiated emissions be measured at all operating frequencies to find the peaks. We also concur with NTIA's recommendation that measurements be made using the maximum possible BPL device output power and operational duty factor. We disagree with Progress Energy that emission measurements should be performed with the Access BPL equipment power levels set for normal operations at that site, and not at the maximum levels. Testing at the BPL maximum output power and operational duty factor is necessary to ensure identification of the maximum field strength that the device is capable of generating. The measurement report and operating instructions must clearly state the maximum output power and duty factor settings necessary to certify that the installed device will comply with our limits. However, because the same device might be used on either overhead or underground power lines having different radiating properties, we are not requiring that the device be modified to prevent operation at higher power levels and duty cycle settings. Furthermore, Access BPL devices must comply with our limits upon power-up following a fault condition, or during a start-up operation after a shut-off procedure, by the use of a non-volatile memory, or some other method, to immediately restore previous settings with programmed notches and excluded bands. This is necessary to avoid the situation where programmed protection schemes, such as excluded bands and notches, have to be restored manually, thus leaving protected licensed services vulnerable during the time delay caused by a manual re-programming procedure.

44. Based on the foregoing, we believe that our proposed measurement guidelines that require selection of fractional wavelengths based on mid-band frequency for down-line measurements strike an appropriate balance between the need to ensure compliance with the rules and practical considerations of the burden and degree of measurement difficulty placed on system operators, and that our requirements for testing at maximum output power and operational duty factor and requirement for clear identification of maximum compliant operating levels will ensure that devices comply under all conditions. Accordingly, we are adopting the measurement guidelines in Appendix C of the NPRM, modified to incorporate some of NTIA's recommendations, as discussed in the Report and Order.

45. Selection of Representative Installations. Although we concur with NTIA that the selection of typical Access BPL installations for in-situ measurements must be made in a careful manner, taking into account the various configurations of the power lines to select a typical, representative installation, we will not require specific criteria for site selection process, because this may limit the number of test sites which may actually be more typical in a specific provider's service area than those recommended by NTIA. We find that our proposed guidelines for three typical overhead installations and three typical underground installations are reasonable to cover a number of test sites in deployment. We also find that by requiring Access BPL devices to be certified by the equipment manufacturer, the concerns of Progress Energy regarding Access BPL installation sites with multiple vendors' equipment no longer exist because the responsibility for site selection to test for equipment certification purposes rests with the Access BPL manufacturer and not with the utility. We are however recommending that the utility operator verify that each representative Access BPL site complies following the installation of a separately certified Access BPL equipment. In such cases, the selection of the test site should be based on the characteristics of the installation and not on vendor's equipment types. Additionally, we concur with Southern and UPLC that NTIA's recommendation in the NTIA Phase 1 Study of requiring a representative power line of 600 meters devoid of discontinuities is impractical, because of the difficulty of finding such a line. Accordingly, in the absence of more specific input, we will not require the selection of such a specific type of power line.

46. Other requirements. We find that NTIA's recommendations regarding the various reporting requirements for the test report are satisfied by our adoption of the certification procedure for Access BPL equipment authorization. Information regarding the test conditions, spectrum distribution and other relevant technical specifications will be required in the certification report for the equipment, which will be accessible through our equipment authorization database. We further find that NTIA's recommendation to embody requirements such as measurement distance, measurement bandwidth, etc. directly into the rules and not merely as guidelines, would not be consistent with our current practice of including measurement specifications in a separate guideline.

47. We note that although CISPR is continuing to work on addressing emission issues that will apply to In-House BPL, no final recommendation has been adopted. We also note that most commenters in this proceeding address Access BPL, and not In-House BPL, issues. Measurements along the service wire leading to the house have been proposed because this wire can be one of the conduits for radiation coming from In-House BPL devices. We are sympathetic to HomePlug's concerns, however. To address HomePlug's concerns, we will allow measurements to be made at three different points along the wire, where the highest radiated emissions are found; these points would not need to be associated with specific wavelengths of the device's operating frequencies, if the installation under test does not include a service wire with a sufficient length for the required measurements. Moreover, testing is required on only one side of the service wire because radiation is nearly symmetrical on either side of the wire. The test report must provide documentation explaining the test configuration. As for the required clear space along the service wire, the guidelines do allow the test to be performed at 3 meters with a distance extrapolation factor when a 10-meter clearance is not available, hence we would expect that most residence configurations would not pose any clearance problem. Accordingly, we partially grant HomePlug's request and hereby adopt the guidelines for In-House BPL and all other in-house types of carrier current systems in Appendix C of this Report and Order.

48. Upon careful consideration of the record, we find that Access BPL systems are not typical unintentional radiators, and that emission measurements for such systems in-situ are critical in determining their interference potential. We are persuaded by NTIA that the newness of the Access BPL measurement procedures warrants review of measurement reports. We therefore conclude that the Certification procedure is appropriate for this new technology to allow us to maintain oversight until additional operational experience is obtained from its wide deployment. While we appreciate NTIA's concerns for assigning responsibility with respect to Access BPL compliance, we do not find that the operator, rather than the Access BPL equipment manufacturer, should bear the burden of the certification requirement. Since a system operator does not control the manufacture of the equipment, it will not be in a position to control production to ensure that each unit marketed conforms to the unit tested for compliance. We believe that the legal and business relationship between the system operator and the BPL manufacturer will be sufficient to ensure that Access BPL equipment installed on a power line be in compliance with our rules. We do, however, strongly recommend that operators perform initial installation and subsequent periodic testing on their systems in order to ensure that the systems maintain compliance with our emission limits.

49. Based on the foregoing, we are subjecting Access BPL to the certification procedure to be carried out by the equipment manufacturer. We are also clarifying that we are retaining the verification procedure for all carrier current systems other than Access BPL, because the verification procedure has been adequate to ensure that other types of carrier current systems comply with the part 15 rules.

50. We also specify that Access BPL certification will be initially performed by the Commission. In General Docket No. 98-68, we established the requirements for Telecommunication Certification Bodies (TCBs) that are allowed to approve equipment in the same manner as the Commission. In that proceeding, we stated that while we intended to use TCBs to certify a broad range of equipment, we found that certain functions should continue to be performed by the Commission. The functions included certifying new or unique equipment for which the rules or requirements do not exist or for which the application of the rules is not clear. Because Access BPL is a new technology and many questions about the application of the rules may arise, we believe that TCBs should not be permitted to certify Access BPL systems or approve permissive changes to Access BPL systems until the Chief of the Office of Engineering and Technology acting under the existing delegated authority announces that TCBs may certify Access BPL systems.

51. Transition Period and Grandfathering of Existing Access BPL Equipment. We note that the major differences between the existing part 15 rules for carrier current systems and the newly adopted rules in subpart G for Access BPL are (1) the type of equipment authorization procedure—Verification for existing carrier current systems, Certification for Access BPL systems; (2) the requirement for interference mitigation techniques and avoidance of excluded bands and exclusion zones for Access BPL systems; and (3) the requirement for an Access BPL database concurrent with consultation with licensed spectrum users. Insofar as existing deployed Access BPL systems can satisfy (2) and (3) by working with licensed spectrum users to avoid co-channel operations, and by being listed in the Access BPL database, the requirements of (1) can be satisfied by having compliance test data available for inspection during the transition period. We clarify that after the transition period, all Access BPL devices that are manufactured, imported, marketed or installed shall comply with the requirements specified in subpart G of part 15, including certification of the equipment.

52. We believe that it would be an undue burden on those operators who have deployed Access BPL systems to require their systems to come into compliance with the rules adopted herein, as long as the deployed equipment does not cause harmful interference and the operator takes the necessary steps to eliminate occurrences of harmful interference. We agree with Progress Energy that once a system has been installed and is operating within the limits and requirements in place when it was installed, the system should be allowed to remain in operation. We will, of course, require that all Access BPL systems and equipment comply with the non-interference rule of part 15, that is, there is not transition period for compliance with the emission limits, which we are not changing. We find that Access BPL equipment should be allowed a transition period for compliance with new rules, in the manner that we typically provide for other part 15 devices. This will minimize economic hardships on manufacturers by allowing them, during the transition period, to continue producing and selling existing equipment while modifying their products to meet the new requirements. If an Access BPL device does not cause harmful interference, it can continue to operate until its natural replacement, unless the equipment is subsequently modified, at which time it must be brought into compliance with the new rules. We believe that a transition time frame of 18 months is adequate as this represents the typical high tech equipment life cycle. Accordingly, we are adopting a cut-off date of 18 months from the date of publication of this Report and Order. All Access BPL devices that are manufactured, imported, marketed or installed July 7, 2006 shall comply with the requirements specified in subpart G of this part, including certification of the equipment. Access BPL equipment manufactured, imported, marketed and installed prior to this date shall comply with the requirements that were in effect immediately prior to the effective date of this Report and Order.

53. Separate Rule Part for Access BPL Systems. NTIA and IEEE 802.18 advocate the creation of a new, dedicated rule part or a separate subpart of part 15 for Access BPL systems, because many of the adopted rules will be unique to Access BPL. We find that the complete separation of the rules for Access BPL equipment from part 15 inadvisable due to possible confusion and repetition of requirements in two places, as Access BPL equipment must comply with the general requirements for unlicensed devices of subparts A-C of the existing part 15 rules. We do, however, find that requirements specific to Access BPL equipment warrant the creation of a separate subpart of part 15. Accordingly, we are adding subpart G to part 15 of our rules which will contain unique requirements for Access BPL equipment, with cross reference to other applicable subparts.

54. Motions and Requests. We have received several motions and requests for additional extensions of time and for reiteration of proposals to take into account information added to the record since the NPRM . We are generally considering the substance of these motions and requests as filed comments, and denying the specific procedural remedies requested, as they offer no new information or arguments sufficient to justify procedural delays, nor do they raise issues beyond those already explicitly or implicitly included in the record and capable of full consideration in this Order.

55. As required by the Regulatory Flexibility Act (“RFA”), 1 an Initial Regulatory Flexibility Analysis (“IRFA”) was incorporated in the Notice of Proposed Rule Making (“NPRM”) in this proceeding, ET Docket Nos. 04-37 & 03-104. The Commission sought written public comment on the proposals in the NPRM, including comment on the IRFA. This Final Regulatory Flexibility Analysis (“FRFA”) conforms to the RFA. 2

56. By this action, the Commission amends part 15 of the rules for radio frequency (RF) devices regarding Access Broadband over Power Line (Access BPL), a new type of carrier current system that operates on an unlicensed basis under part 15. Access BPL systems use existing electrical power lines as a transmission medium to provide high-speed communications capabilities by coupling RF energy onto the power line. Given that power lines reach virtually every residence and business in every community and geographic area in this country, Access BPL service could be made available nearly everywhere. This new broadband delivery medium could also serve to introduce additional competition to existing cable, DSL, and other broadband services. At the same time, we recognize the concerns of authorized radio services in both the private and government sectors for the need to ensure that RF energy from BPL signals on power lines does not cause harmful interference to licensed radio services. Our goals in developing the rules for Access BPL therefore are to provide a framework that will both facilitate the rapid introduction and development of BPL systems and protect licensed radio services from harmful interference. Specifically, we adopted in the Report and Order: (1) New operational requirements for Access BPL to promote avoidance and resolution of harmful interference, (2) new administrative requirements to aid in identifying Access BPL installations; and (3) specific measurement guidelines and certification requirements to allow accurate and repeatable evaluations of emissions from Access BPL and all other carrier current systems. These actions will further the development of BPL systems by removing regulatory uncertainties for BPL operators and equipment manufacturers and facilitate the continued deployment of these new broadband networks while ensuring that licensed radio services are protected from harmful interference. The record and our investigations indicate that BPL network systems can generally be configured and managed to minimize and/or eliminate this interference potential.

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

58. The RFA directs agencies to provide a description of, and, where feasible, an estimate of, the number of small entities that may be affected by the rules adopted herein. 3 The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.”  4 In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. 5 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). 6

59. The rules adopted in the Report and Order pertain to manufacturers of unlicensed communications devices. The appropriate small business size standard is that which the SBA has established for radio and television broadcasting and wireless communications equipment manufacturing. This category encompasses entities that primarily manufacture radio, television, and wireless communications equipment. 7 Under this standard, firms are considered small if they have 750 or fewer employees. 8 Census Bureau data for 1997 indicate that, for that year, there were a total of 1,215 establishments  9 in this category. 10 Of those, there were 1,150 that had employment under 500, and an additional 37 that had employment of 500 to 999. The percentage of wireless equipment manufacturers in this category is approximately 61.35%, 11 so the Commission estimates that the number of wireless equipment manufacturers with employment under 500 was actually closer to 706, with an additional 23 establishments having employment of between 500 and 999. Given the above, the Commission estimates that the great majority of wireless communications equipment manufacturers are small businesses.

60. Although a large number of part 15 radio frequency devices are already required to be authorized under the Commission's Certification, Declaration of Conformity, or Verification procedures as a prerequisite to marketing and importation, the adopted rules add a slight amount of new testing and reporting requirements, to ensure protection of licensed spectrum users from harmful interference. These requirements include the proposed technical requirement for adaptive interference mitigation capabilities and the proposed notification of Access BPL systems in a database similar to the one required for existing Power Line Carrier systems. The major differences between the existing part 15 rules for carrier current systems and the newly adopted rules in subpart G for Access BPL are (1) the type of equipment authorization procedure,—Verification for existing carrier current systems, Certification for Access BPL systems; (2) the requirement for interference mitigation techniques and avoidance of excluded bands and exclusion zones for Access BPL systems; and (3) the requirement for an Access BPL database concurrent with consultation with licensed spectrum users. Because Access BPL systems operate in the High Frequency (HF) and in the low Very High Frequency (VHF) of the spectrum, they must co-exist with numerous private and governmental authorized radio services. As such, they present concerns for these licensed users, given the propagation characteristics of radio frequency signals in these ranges of frequencies, the diversity of users of these frequencies, and the fact that Access BPL devices will be installed at many locations in an area, primarily over unshielded power lines. However, the record and our own investigations indicate that BPL network systems can generally be configured and managed to minimize and/or eliminate this interference potential, through the use of consultation with licensed services and identification of installed Access BPL equipment in a database, as well as the adoption of precise measurement procedures. The adopted certification procedure for Access BPL systems will therefore help provide a more detailed record of their characteristics toward this objective.

61. Although the adopted rules do somewhat increase the reporting and recordkeeping requirements for Access BPL systems, the benefit of ensuring protection to critical systems operated by law enforcement groups, government users and emergency operations outweighs this small cost that will permit the growth of Access BPL in the shared spectrum.

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

63. In the Report and Order, we maintained the existing part 15 emission limits, which are applicable to all part 15 devices, including BPL. We have adopted new measurement guidelines for BPL and existing carrier current systems, to assist manufacturers and testing entities to follow clearer and more precise measurement procedures in the testing of BPL and carrier current systems (CCS), which will help in eliminating confusion and repetitive and costly compliance testing. Although we changed the equipment authorization procedure from Verification to Certification for Access BPL systems, this is because Access BPL systems operate in a different environment than other unlicensed part 15 devices and to avoid overburdening the information that would otherwise be required to be submitted into the Access BPL database. We have adopted a simple Access BPL database format for the notification of Access BPL systems, rather than a complex one with all-inclusive and more comprehensive information. We have narrowed down the list of absolutely necessary licensed entities that Access BPL providers must consult with prior to operating in their bands, as well as the list of exclusion zones and excluded frequency bands in which Access BPL are prohibited from operating. We have provided a generous time frame for a transition period, thus allowing existing systems to continue to operate, as long as they do not cause harmful interference to other authorized radio services. Finally, the rules will apply equally to large and small entities. Therefore, there is no inequitable impact on small entities.

64. We believe that the rules adopted are equitable, balancing the critical needs of licensed radio users for protection against harmful interference, with facilitating the development of Access BPL by removing regulatory uncertainties. For the reasons stated we find that the rule changes contained in this Report and Order will not present a significant economic burden to small entities.

65. The Commission will send a copy of the Report and Order, including this FRFA, in a report to Congress pursuant to the Congressional Review Act. 12 In addition, the Commission will send a copy of the Report and Order, including the FRFA, to the Chief Counsel for Advocacy of the SBA. 13

66. Pursuant to the authority contained in Sections 4(i), 301, 302, 303(e), 303(f), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. Sections 154(i), 301, 302, 303(e), 303(f), and 303(r), part 15 of the Commission's Rules are amended, as specified in Appendix B in the Report and Order, effective 30 days after Federal Register publication, except for §§ 15.615(a) through (e) which contains information collection requirements that are not effective until approved by the Office of Management and Budget. The FCC will publish a document in the Federal Register announcing the effective date for those sections.

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

You can get an electronic copy using the Internet by—

(1) Searching the Department of Transportation's electronic Docket Management System (DMS) Web page ( http://dms.dot.gov/search ). Use Docket No. TSA-2003-15569;

(2) Accessing the Government Printing Office's Web page at http://www.access.gpo.gov/su_docs/aces/aces140.html; or

(3) Visiting TSA's Law and Policy Web page at http://www.tsa.dot.gov/public/index.jsp.

In addition, copies are available by writing or calling the individuals in the FOR FURTHER INFORMATION CONTACT section. Make sure to identify the docket number of this rulemaking.

On May 18, 2004, TSA and OST published an interim final rule (IFR) on the protection of sensitive security information (SSI) in the Federal Register (69 FR 28066). The preamble to that rule provided a full description of the statutory and regulatory background for the SSI program. As explained there, the original SSI program provided for the protection of SSI involved in aviation programs. However, the Aviation and Transportation Security Act (ATSA) (Pub. L. 107-71), enacted two months after the terrorist attacks of September 11, 2001, amended the statutory authority underlying the aviation SSI program to mandate coverage of appropriate security information in all modes of transportation. By deleting “air” as a limiting word before “transportation,” in ATSA, Congress enlarged its specific direction to issue protective regulations to encompass all modes of transportation.

While the general focus of TSA's 2002 regulation to implement ATSA remained on aviation programs, TSA's regulation also provided for the protection of vulnerability assessments and certain other SSI (including information concerning threats against transportation) regardless of mode of transportation. 1 Later in 2002, in the Homeland Security Act (Pub. L. 107-296) that created the Department of Homeland Security (DHS), Congress: (1) transferred TSA's authority to issue SSI regulations to DHS, and (2) directed the Secretary of Transportation to also prescribe SSI regulations. Also in 2002, the Maritime Transportation Security Act (Pub. L. 107-295), which established a new framework for maritime security, became law and called for the preparation of many security-related documents that would need SSI protection.

The May 2004 IFR consisted of virtually identical TSA and OST rules to implement Congressional direction that both agencies issue SSI regulations. The IFR expanded the 2002 regulatory framework governing information generally related to aviation security to also cover information related to security in maritime transportation. This expansion was the main theme of the IFR. However, the IFR also continued the TSA 2002 regulation's coverage for vulnerability assessments and, with some changes, certain other SSI for all modes. For example, the TSA 2002 regulation coverage of “Information concerning threats against transportation” was not limited by mode of transportation. The May 2004 IFR continued that coverage for “Threat information” regardless of the mode of transportation.

SSI rules limit the disclosure of vulnerability assessments and other SSI to persons with a “need to know.” The TSA 2002 regulation contained no modal-specific limits in its need-to-know provision (49 CFR 1520.5(b) (2002)). However, consistent with the May 2004 IFR's focus on adding provisions for the maritime industry to existing, mostly aviation-related, provisions, the IFR added a restriction of “aviation or maritime” at several locations in the need-to-know section. (Under the regulation, Federal employees and persons acting in the performance of a contract with or grant from DHS or DOT are not subject to this restriction.) This led to unintended situations. For example, transportation entities in land modes that transport hazardous materials are required by 49 CFR subpart I to perform vulnerability assessments (see 49 CFR 172.802—assessment of possible transportation security risks for shipments of the hazardous materials listed in § 172.800 and appropriate measures to address the assessed risks), but the SSI regulation literally provides that, unless they were acting in the performance of a contract with or grant from DHS or DOT, they may share these assessments only with entities in the aviation or maritime industries, because the language of the regulation defines only these entities as having a “need to know.”

More than one commenter to the docket on the May 2004 IFR brought this issue to our attention. In light of the well-justified concern about the vulnerability of all transportation modes to terrorist activities, and the crucial need to share information to “connect the dots” to forestall future attacks, DOT and DHS believe that this is a technical problem that must be fixed. By removing the limiting words “aviation or maritime” from 49 CFR 15.11 and 1520.11, we correct this mistake and restore the original intent of this aspect of the SSI rule—to share vulnerability assessments and threat information with entities in all transportation modes that need the information to help forestall future attacks.

TSA and OST received many useful, constructive comments on the May 2004 IFR. We plan to publish in the Federal Register a rulemaking document responding to comments related to subjects other than this need to know issue.

TSA and OST are issuing this technical amendment without prior notice and opportunity for comment pursuant to the authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision allows an agency to issue a regulatory action without notice and opportunity for comment when the agency for good cause finds that notice and comment procedures are “impracticable, unnecessary or contrary to the public interest.”

As noted previously, it is essential to fix this problem in the SSI regulation immediately, lest the unintended restriction in the regulation inhibit the exchange of vital security-related information. In addition, the technical amendment will relieve a restriction on regulated parties. For these reasons, TSA and OST have determined that prior notice and an opportunity for comment would be impracticable, unnecessary, and contrary to the public interest. This same rationale provides good cause to make the technical amendment effective immediately upon publication.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires consideration of the impact of paperwork and other information collection burdens imposed on the public. TSA and OST have determined that there are no new information collection requirements associated with this technical amendment.

As protection provided by the Paperwork Reduction Act, as amended, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number.

Executive Order 12866 (58 FR 51735, October 4, 1993), provides for making determinations whether a regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and to the requirements of the Executive Order. This is a nonsignificant regulatory action under Executive Order 12866. The technical amendment will not add any requirements or burdens on any party. It simply relieves a restriction that would prevent transportation entities from sharing certain information with those who need to know, regardless of mode. This will enhance security by allowing TSA and OST to share vital security information with regulated parties. For the same reasons, this regulatory action is nonsignificant under the Department of Transportation's Regulatory Policies and Procedures.

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq. , as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), an agency is required to prepare and make available a regulatory flexibility analysis that describes the effect of the regulatory action on small entities ( i.e. , small businesses, small organizations, and small governmental jurisdictions). Because good cause exists for issuing this regulation as a final technical amendment, no regulatory flexibility analysis is required. However, because this technical amendment will not impose any costs on any entities, including small entities, we have determined and certify that this regulatory action does not have a significant economic impact on a substantial number of small entities.

The Trade Agreement Act of 1979 prohibits Federal agencies from engaging in any standards or related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety and security, are not considered unnecessary obstacles. The Act also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. We have assessed the potential effect of this regulatory action and determined that it will have no effect on any trade-sensitive activity and will not constitute a barrier to international trade.

The Unfunded Mandates Reform Act of 1995 is intended, among other things, to curb the practice of imposing unfunded Federal mandates on State, local, and tribal governments. Title II of the Act requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in a $100 million or more expenditure (adjusted annually for inflation) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.”

This regulatory action does not contain such a mandate. The requirements of Title II of the Act, therefore, do not apply and a statement has not been prepared under the Act.

This regulatory action has been analyzed under the principles and criteria of Executive Order 13132, Federalism. We have determined that it would 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, this regulatory action does not have federalism implications.

This action has been reviewed for purposes of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4347), and we have determined that it will not have a significant effect on the human environment.

The energy impact of this technical amendment has been assessed in accordance with the Energy Policy and Conservation Act (EPCA), Public Law 94-163, as amended (42 U.S.C. 6362). We have determined that this technical amendment is not a major regulatory action under the provisions of the EPCA.

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires an agency to comply with small entity requests for information and advice about compliance with statutes and regulations within the agency's jurisdiction. Any small entity that has a question regarding this document may contact the individuals listed in FOR FURTHER INFORMATION CONTACT for information. You can get further information regarding SBREFA on the Small Business Administration's Web page at http://www.sba.gov/advo/laws/law_lib.html.