One of the major changes made to the CACFP by the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Pub. L. 104-193), section 708(e)(13) amendment to section 17 of the National School Lunch Act, was to require a two-tiered system of reimbursements for family and group day care home providers. Since July 1, 1997 when implementing Program regulations became effective, CACFP day care home providers have been categorized as either tier I or tier II for reimbursement purposes. Tier I day care homes receive higher reimbursement rates because they are located in low-income areas or their family income is determined to be low-income. The threshold for a determination of low-income is at or below 185 percent of the Federal income poverty guidelines. Tier II providers who do not meet these criteria receive lower reimbursement rates. However, tier II providers may receive the higher tier I reimbursement rates for any child in care whose family income is determined to be low-income. This determination is based on an income eligibility application for free or reduced price meals that is voluntarily completed by the child's parent or guardian.

One of the primary ways in which day care homes qualify for tier I rates is based on data from nearby elementary schools in which at least half of all the enrolled students are certified eligible for free or reduced price school meals. Any day care home that is located within the attendance area of an elementary school that is at the 50 percent level for free or reduced price meals qualifies for tier I rates. Other data sources that may be used to determine tier I status include census block data and providers' income eligibility applications. Prior to the change made by the Child Nutrition and WIC Reauthorization Act of 2004 (Pub. L. 108-265), the duration of tiering determinations varied by data source; i.e. , one year if based on the income eligibility statement of the provider, three years if based on school data, and ten years or longer if based on census block data.

Section 119 of Pub. L. 108-265 amended section 17(f)(3)(E)(iii) of the Richard B. Russell National School Lunch Act (NSLA), 42 U.S.C. 1766(f)(3)(iii), to increase the duration of tiering determinations from three years to five years for family or group day care homes whose tiering status is derived from school data. The school data, which is provided annually by the State agency that administers the National School Lunch Program (NSLP) to the CACFP State agency, lists the elementary schools in which at least 50 percent of the enrolled children are certified eligible for free or reduced price school meals. This provision affects family or group day care homes that are participating in the CACFP and are located in the attendance area of an elementary school that is listed at the 50 percent level for free or reduced price school meal eligibility.

The change made by Pub. L. 108-265 was effective on June 30, 2004.

The Food and Nutrition Service (FNS) notified CACFP State agencies in writing on July 8, 2004 of the increased duration of tiering status determinations based on school data. In this written guidance, available at http://www.fns.usda.gov/cnd/care/Reauth-Memos/2004-07.pdf, FNS explained that the tiering classifications based on school data for new day care homes (with signed agreements as of June 30, 2004 or later) now last five years. Thus, the tiering status of those day care homes approved in 2004 will not have to be redetermined by their sponsoring organizations until 2009. FNS stated in the guidance that the tiering status for day care homes of currently participating providers ( i.e. , those whose agreements were signed prior to June 30, 2004) may be extended by two years for a total of five years; the guidance also clarified that no other changes to the requirements of day care homes' tiering status determinations were made by Pub. L. 108-265.

Tier I day care providers whose tiering status is based on school data will retain tier I status for five years instead of three years. This change should provide them with improved ability to project future program reimbursements and may enhance their ability to plan for future day care activities and expenses.

The primary change for sponsoring organizations of day care homes participating in the CACFP will be a reduction in their workload. Sponsors now have five years before it is necessary to redetermine the tiering status of day care homes based on school data instead of every three years. As the current regulations stipulate, sponsoring organizations receive school data that is updated each year; this information is used to determine the tiering status of new day care providers. The regulations at 7 CFR 226.6(f)(1)(iii) prohibit State agencies from requiring that sponsoring organizations must routinely redetermine tiering status of tier I day care homes each year based on updated school data.

The effect on State agencies should be minimal. The annual responsibilities of State agencies, as described in the NSLP and CACFP regulations are unchanged by the lengthening of tiering status determinations based on school data. Consistent with section 17(f)(3)(E)(iii)(I) of the NSLA, NSLP State agencies must continue to provide the school data to CACFP State agencies annually as required in 7 CFR 210.19(f) of the NSLP regulations, and CACFP State agencies must continue to pass the information along to sponsoring organizations of day care homes as specified in 7 CFR 226.6(f)(1)(iii).

Responsibilities for administering the tiering system for day care homes are described in the CACFP regulations—for State agencies at 7 CFR 226.6(f)(1)(iii) and for sponsoring organizations at 7 CFR 226.15(f). This final rule amends these two paragraphs to increase the duration of tiering status based on school data from three years to five years. These are the only changes that are made to the CACFP regulations by this rulemaking.

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

This rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612). Roberto Salazar, Administrator for the Food and Nutrition Service, has certified that this rule will not have a significant impact on a substantial number of small entities. This rule will implement a statutory change that increases the duration of tiering status determinations from three years to five years for family and group day care homes. This change should positively impact day care home providers that are located in low-income areas or that are determined to be low-income because they will have an additional two years of reimbursement at the higher tier I rates before their tiering status must be redetermined. This change will also positively impact sponsoring organizations by reducing the frequency of the redeterminations of tiering status of the family or group day care homes under their sponsorship. The U.S. Department of Agriculture does not anticipate any significant negative fiscal impact resulting from the implementation of this final rule.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, the Food and Nutrition Service (FNS) generally prepares a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, or tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, section 205 of the UMRA generally requires FNS to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, more cost-effective or least burdensome alternative that achieves the objectives of the rule.

This final rule contains no Federal mandates (under regulatory provisions of Title II of the UMRA) for State, local, and tribal governments or the private sector of $100 million or more in any one year. Thus, this final rule is not subject to the requirements of sections 202 and 205 of the UMRA.

The Child and Adult Care Food Program is listed in the Catalog of Federal Domestic Assistance under No. 10.558. For the reasons set forth in the final rule in 7 CFR part 3015, subpart V and related Notice (48 FR 29115), this program is subject to the provisions of Executive Order 12372, which requires intergovernmental consultation with State and local officials.

Executive Order 13132 requires Federal agencies to consider the impact of their regulatory actions on State and local governments. Where such actions have “federalism implications,” agencies are directed to provide a statement for inclusion in the preamble to the regulation describing the agency's considerations in terms of the three categories called for under section (6)(a)(B) of Executive Order 13132. FNS has considered the impact of this rule on State and local governments and has determined that this rule would not have federalism implications. This final rule does not impose substantial or direct compliance costs on State and local governments. Therefore, under Section 6(b) of the Executive Order, a Federalism summary impact statement is not required.

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This final rule will have a preemptive effect with respect to any State or local laws, regulations or policies which conflict with its provisions or which otherwise impede its full implementation. This final rule does not have retroactive effect unless so specified in the DATES section of this preamble. Prior to any judicial challenge to the provisions of this final rule or the application of the provisions, all applicable administrative procedures must be exhausted. In the Child and Adult Food Care Program, the administrative procedures are set forth at: (1) 7 CFR 226.6(k), which establishes appeal procedures; and (2) 7 CFR 226.22 and 7 CFR parts 3016 and 3019, which address administrative appeal procedures for disputes involving procurement by State agencies and institutions.

FNS has reviewed this final rule in accordance with the Department Regulation 4300-4, “Civil Rights Impact Analysis” to identify and address any major civil rights impacts the rule might have on minorities, women, and persons with disabilities. After a careful review of the rule's intent and provisions, FNS has determined that there is no negative effect on these groups. All data available to FNS indicate that protected individuals have the same opportunity to participate in the CACFP as non-protected individuals. Regulations at 7 CFR 226.6(f)(4)(iv) require that CACFP institutions agree to operate the Program in compliance with applicable Federal civil rights laws, including title VI of the Civil Rights Act of 1964, title IX of the Education amendments of 1972, Section 504 of the Rehabilitation Act of 1973, the Age Discrimination Act of 1975, and the Department's regulations concerning nondiscrimination (7 CFR part 15, 15a, and 15b). At 7 CFR 226.6(m)(1), State agencies are required to monitor CACFP institution compliance with these laws and regulations.

The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35, see 5 CFR 1320) requires that OMB approve all collections of information by a Federal agency from the public before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a current valid OMB control number. Information collections in this final rule have been previously submitted to OMB for approval under OMB #0584-0055. A 60-day notice was published in the Federal Register on December 6, 2004, which provided an opportunity for the public to submit comments on the reduction to the information collection burden resulting from the changes in the CACFP made by this final rule. This burden change has not yet been approved by OMB. FNS will publish a document in the Federal Register once these requirements have been approved.

FNS is committed to compliance with the Government Paperwork Elimination Act (GPEA), which requires Government agencies to provide the public the option of submitting information or transacting business electronically to the maximum extent possible. This rule does not require the submission of additional information.

This action is being finalized without prior notice or public comment under authority of 5 U.S.C. 553(b)(3)(A) and (B). This rule implements through amendments to current program regulations a nondiscretionary provision mandated by the Child Nutrition and WIC Reauthorization Act of 2004 (Pub. L. 108-265). Thus, the Department has determined in accordance with 5 U.S.C. 553(b) that Notice of Proposed Rulemaking and Opportunity for Public Comments is unnecessary and contrary to the public interest and, in accordance with 5 U.S.C. 553(d), finds that good cause exists for making this action effective without prior public comment.

The FAA proposed to amend 14 CFR part 39 with a proposed AD. The proposed AD applies to GE CT58-140-1, CT58-140-2, and surplus military T58-GE-5, -10, -100, and -402 series turboshaft engines with certain SNs of stage 1 compressor disks, P/N 5001T20P01, installed. We published the proposed AD in the Federal Register on February 26, 2004 (69 FR 8875). That action proposed to require removing certain stage 1 compressor disks from service before reaching a reduced LCF life limit for those affected disks of 2,100 hours TSN or by December 31, 2008, whichever occurs first.

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

We provided the public the opportunity to participate in the development of this AD. We have considered the comments received, which are all from GE.

One commenter, GE, requests that we change the estimated number of affected engines installed on helicopters of U.S. registry from 45 to 30. The commenter states that this number is a more accurate estimate of engines in the U.S. and affects the total cost of disk replacement by one third. GE bases this quantity change on their engine tracking system.

We agree, and have changed that number in the final rule based on GE's estimate of the number of affected engines.

GE requests that we add “surplus military” before all references to “T58-GE-5”, to differentiate those engines from the commercially-designated CT58 engines.

We agree, and have made these changes in the final rule, which includes surplus military models T58-GE-5, T58-GE-10, -100, and -402.

GE requests that we change the unsafe condition description of “We are issuing this AD to prevent low cycle fatigue (LCF) cracking and failure of the stage 1 compressor disk, an uncontained engine failure, and damage to the helicopter” to “We are issuing this AD to prevent low-cycle-fatigue (LCF) cracking of the stage 1 compressor disk.” GE states that they do not consider the condition to be unsafe based on their investigation and analysis of this condition.

We do not agree. We reviewed GE's investigation and engineering analysis data with GE, and concluded there is an unsafe condition that requires an AD. The basis for the unsafe condition description in the proposed AD completes the potential scenario leading to the unsafe condition, should the disk cracking continue to an uncontained disk failure, resulting in damage to the helicopter. Further, our statement of the unsafe condition does not change the compliance requirements of GE Alert Service Bulletin No. 72-A0196. We have made no changes to the AD based on this comment.

GE requests that we change some wording in the discussion of the proposed AD from “An investigation by GE revealed that the tangential positioning of the blade dovetail slot resulted in the high-peak stresses.” to “An investigation conducted by GE determined that a defined population of stage 1 compressor disks had non-conforming tangential positioning of the blade dovetail slots, which resulted in high-peak stresses at the disk dovetail slot aft acute corner”. GE did not indicate any justification or reason for the proposed change.

We evaluated the change and determined it does offer a more detailed description and points out a nonconformance. However, this discussion information only appears in the proposed AD and not in the final rule, so we have made no change to the AD based on this comment.

GE requests that we change the requirements statement from “We are proposing this AD which would require removing certain stage 1 compressor disks from service at or before reaching a reduced LCF life limit of 2,100 hours TSN or by December 31, 2008, whichever occurs first” to “We are proposing this AD which would require removing certain stage 1 compressor disks from service at or before reaching 2,100 hours TSN or by December 31, 2008, whichever occurs first”. GE states that they recommend compliance with GE Alert Service Bulletin No. 72-A0196. GE also reminds the FAA that the published FAA—approved life limit for P/N 5001T20P01 is 4,000 hours or 9,900 cycles.

We partially agree. GE points out that the published FAA-approved life limit for compressor disks, P/N 5001T20P01, is 4,000 hours or 9,900 cycles, for most of the SN disks with this P/N, while the affected SN population of disks has a reduced life limit of 2,100 hours or December 31, 2008, whichever occurs first. The intent of this AD is to require removing the affected disks that need the reduced life limit because of the nonconformity of those disks. We have changed the requirements statement of this AD to state “This AD requires removing certain stage 1 compressor disks from service at or before reaching a reduced LCF life limit for those affected disks of 2,100 hours TSN or by December 31, 2008, whichever occurs first”.

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

There are about 320 GE CT58-140-1, CT58-140-2, and surplus military T58-GE-5, -10, -100, and -402 series turboshaft engines of the affected design in the worldwide fleet. We estimate that 30 engines installed on helicopters of U.S. registry will be affected by this AD. The action does not impose any additional labor costs. A new disk would cost about $7,965 per engine. We estimate that the prorated cost of the life reduction will be about $4,181 per engine. Based on these figures, we estimate the total cost of the AD to U.S. operators to be $125,430.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

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

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

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

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

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

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

We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES. Include “AD Docket No. 2003-NE-59-AD” in your request.

The FAA proposed to amend 14 CFR Part 39 with a proposed airworthiness directive (AD). The proposed AD applies to Hartzell Propeller Inc. model HC-B3TN-5( )/T10282( ) propellers. We published the proposed AD in the Federal Register on July 22, 2004 (69 FR 43775). That action proposed to require initial and repetitive inspections of the blade pilot tube bore area.

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

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

One commenter, Hartzell Propeller Inc., requests that we change the compliance time to a much more aggressive compliance requirement, to the point of grounding those operators who did not follow the Priority Letter AD, regardless of whether they were legally obligated to do so or not. The commenter states that the NPRM we published, which is 16 years beyond the Priority Letter AD effective date, extends compliance to 500 hours after the effective date of the yet-to-be published final rule AD. The Priority Letter AD either identified, or was the result of, cracks found on two blades installed in the same propeller, and two occurrences of blade separation on two other propellers. All events were from fractures initiating at the same general location in the blade bore. Hartzell issued Service Bulletin No. 161, dated May 18, 1989, as a counterpart to the Priority Letter AD. Hartzell further states that since many operators of this type of aircraft overhaul their propellers, compliance to the Priority Letter AD was likely accomplished, intentionally or otherwise, as part of the overhaul process. However, if an operator did not receive or acknowledge the Priority Letter AD, and if they did not overhaul their propellers, they are flying at increased risk of failure. Hartzell further states that the published NPRM provides inappropriate relaxation and should be revised.

We do not agree. To justify the suggested change in compliance time, we would need supporting data. However, service history has shown that there has been no occurrence of this failure mode subsequent to the issuance of the Priority Letter AD.

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

By adding STC SA345GL to the applicability, there are about 50 additional Hartzell Propeller Inc. model HC-B3TN-5( )/T10282( ) propellers of the affected design in the worldwide fleet. Including the additional applicability, we estimate a total of 500 propellers have been installed on airplanes of U.S. registry and would be affected by this AD. We also estimate that it would take about 2.5 work hours per propeller blade to perform the actions, and that the average labor rate is $65 per work hour. Based on these figures, we estimate the total cost of the AD to U.S. operators is $243,750.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

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

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

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

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

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

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

We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES . Include “AD Docket No. 2003-NE-50-AD” in your request.

Section 162.45 of the Customs and Border Protection (CBP) Regulations (19 CFR 162.45) sets forth the procedure that CBP must follow when it seizes and gives notice of intent to forfeit property under administrative forfeiture proceedings, as required by section 607 of the Tariff Act of 1930, as amended (19 U.S.C. 1607). The statutory language allows for administrative forfeiture when CBP seizes (1) a prohibited importation; (2) a transporting conveyance if used to import, export, transport or store a controlled substance or listed chemical; (3) any monetary instrument within the meaning of 31 U.S.C. 5312(a)(3); or (4) any conveyance, merchandise or baggage for which its value does not exceed $500,000.

Specifically, § 162.45(b), CBP Regulations, addresses publication of notices under administrative forfeiture proceedings. If the value of seized property exceeds $2,500, current paragraph (b)(1) requires publication of administrative forfeiture notices in a newspaper circulated at the Customs port and in the judicial district where the seizure occurred. All known parties-in-interest are notified of the newspaper and expected dates of publication of the notice.

When the value of the seized property does not exceed $2,500, current paragraph (b)(2) of § 162.45 allows CBP to publish a notice of seizure and intent to forfeit by posting it in a conspicuous place accessible to the public at the customhouse nearest the place of seizure.

On January 14, 2004, CBP published a document in the Federal Register (69 FR 2093) proposing to amend the CBP Regulations by changing the requirements for publication of administrative forfeiture notices in § 162.45(b)(1) by raising the value threshold of property for which CBP must publish an administrative forfeiture notice in a newspaper from $2,500 to $5,000.

Consequently, the applicability of paragraph (b)(2) would be automatically expanded to seizures of property valued at $5,000 or under, allowing CBP to publish the notice by posting it in a conspicuous place accessible to the public at the customhouse nearest the place of seizure.

CBP had last changed the regulation in 1985, when it increased the dollar threshold from $250 to $2,500. Since then, inflation has often caused the costs of publication in large metropolitan areas to exceed $2,500. Thus, in many cases the publication costs can be prohibitive when compared to the value of the property advertised.

Comments on the proposed amendment to the CBP Regulations were solicited. No comments were received during the public comment period, which closed on March 15, 2004. Upon further consideration of the matter, CBP has determined to adopt the proposal as published on January 14, 2004.

The amendment is changing the dollar value threshold governing only the form of public notice, not its substance. Accordingly, CBP certifies that the amendment will not have a significant economic impact on a substantial number of small entities, pursuant to the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Accordingly, it is not subject to the regulatory analysis or other requirements of 5 U.S.C. 603 and 604.

For the same reasons, this document does not meet the criteria for a “significant regulatory action” as specified in E.O. 12866.

The principal author of this document is Mr. Fernando Pen a, Office of Regulations and Rulings, Customs and Border Protection. However, personnel from other Bureau offices participated in its development.

This regulation is being issued by CBP in accordance with 19 CFR 0.1(b)(1).

On November 5, 2004, the Commission published a Notice of Proposed Rulemaking (NOPR) in the Federal Register . 69 FR 64541, November 5, 2004. In the NOPR, the Commission proposed certain amendments to its Rules of Practice and Procedure applicable to AD/CVD proceedings as well as parallel amendments to comparable rules regarding certain safeguard and market disruption proceedings. The Commission developed these proposed amendments after seeking and receiving public comment on ways to improve its conduct of AD/CVD investigations (67 FR 72221, December 4, 2002).

The Commission proposed the following amendments to its Rules in the NOPR: (a) Requiring parties to file prehearing briefs no later than five business days before the hearing, rather than four business days; (b) requiring parties to file in camera requests no later than seven business days prior to the hearing and any comments to those requests within two (2) business days after the filing of the request; (c) requiring parties to serve in camera requests and comments to those requests by hand-delivery or next-day service; (d) no longer requiring clerical or other staff to file an APO application with Commission but instead sign a form maintained by an authorized APO applicant; (e) stating that petitions filed after 12 noon will be deemed to be filed the following business day; and (f) requiring parties to file new NAFTA APO applications in NAFTA appeals. The Commission also proposed a minor amendment to change references to the Mexican Secretary of Commerce and Industrial Development to the Mexican Secretary of Economia. 69 FR 64541, November 5, 2004.

In the NOPR, the Commission invited public comment on its proposed rule amendments and requested that those comments be filed no later than 60 days after publication of the NOPR ( i.e. , January 4, 2005). The Commission did not receive any public comments to the NOPR. Accordingly, the Commission adopts these final amended rules without change from the proposed amendments in the NOPR.

The Commission has determined that these amended rules do not meet the criteria described in Section 3(f) of Executive Order 12866 (58 FR 51735, Oct. 4, 1993) and thus do not constitute a significant regulatory action for purposes of the Executive Order.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) is inapplicable to this rulemaking because it is not one for which a notice of proposed rulemaking is required under 5 U.S.C. 553(b) or any other statute. Although the Commission published a notice of proposed rulemaking, the proposed regulations are “agency rules of procedure and practice,” and thus are exempt from the notice requirement imposed by 5 U.S.C. 553(b).

These amended rules do not contain federalism implications warranting the preparation of a federalism summary impact statement pursuant to Executive Order 13132 (64 FR 43255, Aug. 4, 1999).

No actions are necessary under the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501 et seq. ) because the amended rules will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and will not significantly or uniquely affect small governments.

The amended rules are not major rules as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq. ). Moreover, they are exempt from the reporting requirements of the Contract With America Advancement Act of 1996 (Pub. L. 104-121) because they concern rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties.

The amendments are not subject to section 3504(h) of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ), since they do not contain any new information collection requirements.

Cross Vetpharm Group Ltd., Broomhill Rd., Tallaght, Dublin 24, Ireland, filed ANADA 200-326 for BIMECTIN (ivermectin) Paste 1.87%. The application provides for oral use of 1.87 percent ivermectin paste in horses for the treatment and control of various species of internal parasites or parasitic conditions. Cross Vetpharm Group's BIMECTIN Paste 1.87% is approved as a generic copy of Merial Limited's EQVALAN Paste, approved under NADA 134-314. ANADA 200-326 is approved as of January 19, 2005, and 21 CFR 520.1192 is amended to reflect the approval. The basis of approval is discussed in the freedom of information summary.

In accordance with the freedom of information provisions of 21 CFR part 20 and 21 CFR 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.

The agency has determined under 21 CFR 25.33(a)(1) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

The NJTRO Bridge has a vertical clearance in the closed position of 8 feet at mean high water and 13 feet at mean low water. The existing drawbridge operation regulations are listed at 33 CFR 117.747.

The bridge owner, New Jersey Transit Rail Operations (NJTRO), requested a temporary deviation from the drawbridge operation regulations to facilitate necessary scheduled bridge maintenance, replacement of miter rails, at the bridge. The bridge must remain in the closed position during the performance of these repairs.

Under this temporary deviation the NJTRO Bridge may remain in the closed position beginning at 11 p.m. on Friday through 6 p.m. on Saturday for four weekends as follows: March 18 through March 19; April 1 through April 2; April 15 through April 16; and April 29 through April 30, 2005. Two alternate weekend closure dates, May 6 through May 7, and May 13 through May 14, 2005, have been authorized in the event that inclement weather requires cancellation of any of the above dates.

This deviation from the operating regulations is authorized under 33 CFR 117.35, and will be performed with all due speed in order to return the bridge to normal operation as soon as possible.

On November 17, 2004, we published a notice of proposed rulemaking (NPRM) entitled, “Drawbridge Operation Regulation; Gulf Intracoastal Waterway, Cypremort, LA,” in the Federal Register (69 FR 67294). We received two letters commenting on the proposed rule. No public meeting was requested, and none was held.

The U.S. Coast Guard, at the request of the State of Louisiana, Department of Transportation and Development (LDOTD), and supported by the Port of West St. Mary, proposes to establish a schedule of operation for the new SR 319 movable bridge and eliminate the schedule of operation of the old SR 319 bridge. Currently, the bridge opens on signal; except that from 15 August to 5 June, the draw need not be opened from 6:55 to 7:10 a.m. and from 3:50 to 4:10 p.m. Monday through Friday except holidays.

The new bridge will open for traffic on April 10, 2005. When traffic is relocated to the new bridge, the old bridge will be maintained in the open to navigation position until it is removed. Removal of the old bridge should be completed within 90 days after the new bridge has been opened to traffic. The existing regulation for the old bridge is no longer required.

The new bridge provides mariners with 73 feet of vertical clearance above mean high water in the closed to navigation position. The new bridge will only be required to open for vessels with vertical clearances of greater than 73 feet. Gulf Intracoastal Waterway bridges to the east and to the west of this bridge are fixed bridges providing only 73 feet of vertical clearance. Only vessels wishing to transit to the Port of West St. Mary will require openings as this facility is currently the only facility or waterway between the SR 319 bridge at mm 134.0 and the Bayou Sale bridge at mm 113.0.

In an effort to assess and accurately determine the opening requirements of the new bridge, LDOTD supplied opening data for the present bridge and identified the number of openings that would have been required if the new bridge with 73 feet of vertical clearance were operating. In 2003, the existing bridge opened for the passage of vessels approximately 12,800 times. During that time period, the new bridge would have been required to open for marine traffic three times. Through mid-October of 2004, the existing bridge opened for the passage of vessels approximately 11,000 times. In 2004, during the final phases of construction of the new bridge (with the bascule leaves for the new bridge in place), vessels transiting the waterway only required 5 openings.

Based upon the existing statistics for bridge openings and the limited number of openings that will be required for the passage of traffic for the new bridge, LDOTD has requested that the new bridge be required to open on signal if at least 24-hours advanced notice is given. The Port of West St. Mary is the only facility known to be affected by the new advanced notice requirement. They have stated by letter that this requirement is reasonable and have no objections.

Navigation at the site of the bridge consists primarily of tugboats with barges. Alternate routes to the Port of West St. Mary are not available to marine traffic requiring vertical clearances of greater than 73 feet.

Two letters were received with regards to the NPRM. The U.S. Fish and Wildlife Service stated that the change would have no effect on resources. The National Marine Fisheries Service has no objections to the proposed change. Based upon this comments, no changes were made to the proposed regulation.

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).

This rule allows vessels with vertical clearance requirements of greater than 73 feet ample opportunity to transit this waterway without delay if they provide 24-hours advanced notification of their vessel movement. The drawbridge will not restrict all other vessels.

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 rule will not have a significant economic impact on a substantial number of small entities.

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 rule is categorically excluded, under figure 2-1, paragraph (32)(e), of the Instruction, from further environmental documentation. This final rule involves removal of the drawbridge operation regulation for a drawbridge that has been removed from service and placing a drawbridge operation regulation on a new high-level bascule drawbridge. It will not have any impact on the environment.

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

On June 7, 2004 (69 FR 31782), EPA proposed to approve the following rules into the California SIP.

We proposed to approve these rules because we determined that they complied with the relevant CAA requirements. Our proposed action contains more information on the rules and our evaluation.

EPA's proposed action provided a 30-day public comment period. During this period, we received a comment from the following party.

• Randy Gullickson, Camarillo, California, e-mail dated June 7, 2004 and received June 7, 2004.

As a result of this comment, we published a withdrawal of the direct final approval of these rules that was published on July 15, 2004 (69 FR 42340). The comment and our response is summarized below.

Comment: Mr. Gullickson, a resident and homeowner in Ventura County, is concerned about the proposed exemption “to limit the burning of household waste at single-or two-family dwellings to only dry non-glossy paper and cardboard and dry natural vegetation.” His concern relates to the costs and problems, such as damage to local farms and fields, that are associated with implementation of this limited exemption. He urges EPA to reconsider the approval after a thorough study of these issues.

Response: The cited limited exemption is contained in GBUAPCD Rule 407, Incinerator and Burn Barrel Burning, pursuant to California Code of Regulations, title 17, section 93113(e). The exemption is restricted to areas with population density of less or equal to 3.0 persons per square mile. The District may request that the exemption also apply to areas with greater than 3.0 but less or equal to 10.0 persons per square mile for a renewable 10-year period. The low population density assures that very little burning would occur and then only materials that burn relatively clean would be burned. Further restrictions are that burning must occur only on Burn Days as determined by the California Air Resources Board and that a valid burn permit be obtained from the GBUAPCD. We believe that incinerator burning under the cited requirements significantly limits any incinerator burning and that negligible contamination from PM-10 emissions will occur in the remote, low-population density areas where the exemption is allowed.

VCAPCD Rule 56, Open Burning, which regulates open burning in Ventura County, does not include this limited exemption and does not allow burning of any household waste at single-or two-family dwellings. Thus, the potential environmental problems and environmental costs associated with this limited exemption would not occur in Ventura County.

No comments were submitted that change our assessment that the submitted rules comply with the relevant CAA requirements. Therefore, as authorized in section 110(k)(3) of the Act, EPA is fully approving these rules into the California SIP.

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 25, 2005. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

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

Table 1 lists the rules we are approving with the dates that they were adopted by the local air agencies and submitted by the California Air Resources Board.

On May 21, 1998, the submittals of Rules 201, 203, 204, 205, and 217 were found to meet the completeness criteria in 40 CFR part 51, appendix V, which must be met before formal EPA review.

We approved a version of Rules 201, 203, 204, 205, and 217 into the SIP on November 9, 1978 (43 FR 52237).

Section 110(a) of the CAA requires states to submit regulations that control volatile organic compounds, oxides of nitrogen, particulate matter, and other air pollutants which harm human health and the environment. These rules were developed as part of the local agency's program to control these pollutants.

The purposes of the revisions relative to the SIP rules are as follows:

• Rules 201, 203, 205, and 217 revise the format with no change in content.

• Rule 204 adds a provision to allow the Air Pollution Control Officer (APCO), after a 30-day notice to the permitee, to add or amend written conditions in a permit to assure compliance with applicable rules and regulations. The TSD has more information about these rules.

These rules describe administrative provisions and definitions that support emission controls found in other local agency requirements. In combination with the other requirements, these rules must be enforceable ( see section 110(a) of the CAA) and must not relax existing requirements ( see sections 110(l) and 193). EPA policy that we used to define specific enforceability requirements includes:

• Requirements for Preparation, Adoption, and Submittal of Implementation Plans , U.S. EPA, 40 CFR part 51.

• Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations , U.S. EPA (May 25, 1988) (The Bluebook).

We believe these rules are consistent with the relevant policy and guidance regarding enforceability and SIP relaxations. The TSD has more information on our evaluation.

As authorized in section 110(k)(3) of the CAA, EPA is fully approving the submitted AVAPCD Rules 201, 203, 204, 205, and 217, because we believe they fulfill all relevant requirements. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this Federal Register , we are simultaneously proposing approval of the same submitted rules. If we receive adverse comments by March 24, 2005, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on April 25, 2005. This will incorporate these rules into the federally enforceable SIP.

Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 25, 2005. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

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

Table 1 lists the rule we are removing and the rules being revised or amended by the local air agencies and submitted by the California Air Resources Board (CARB).

On August 10, 2004, the submittal of ICAPCD Rule 415 was found to meet the completeness criteria in 40 CFR part 51, appendix V, which must be met before formal EPA review. On June 30, 2004, the submittal of SCAQMD Rule 461 was found to meet the completeness criteria.

We approved a version of EDCAQMD Rule 425 on July 7, 1982 (47 FR 29536). We finalized a limited approval/limited disapproval of a previous version of ICAPCD Rule 415 on October 29, 2002 (67 FR 65873). We approved a previous version of SCAQMD Rule 461 into the SIP on August 20, 2001 (66 FR 43483). There were no sanction implications on our action on Rule 415.

VOCs help produce ground-level ozone and smog, which harm human health and the environment. Section 110(a) of the CAA requires states to submit regulations that control VOC emissions.

The purpose of removing EDCAQMD (Mountain Counties portion) Rule 425, Transfer of Authority to Construct, is to remove an obsolete permitting rule from the SIP. This rule is superseded by EDCAQMD SIP Rule 501.3.E, General Permit Requirements, and there is no relaxation of the SIP. Rule 425 should have been rescinded in the final action of February 2, 2000 (65 FR 4887), as proposed on October 5, 1999 (64 FR 53973). Due to an oversite, Rule 425 was not rescinded. Therefore, EPA is removing Rule 425 from the SIP in today's action.

The purpose of revising ICAPCD Rule 415 is to make the following changes, some of which correct deficiencies that we identified in our October 29, 2002 action on a previous version of this rule:

• 415.A.1.a: To delete the exemption from requirements for storage tanks for fueling equipment used primarily for animal husbandry.

• 415.A.1.b: To reduce the scope of exemption for retail service stations in existence since December 1, 1988. The existing SIP rule had exempted such facilities entirely from the rule, but the revised rule exempts such stations only from the requirement to install Phase II controls.

• 415.A.1.f: To add an exemption from requirements for storage tanks with a submerged fill pipe or a pressure tank with a capacity of 1,000 gallons or less, where no more than 3,000 gallons are transferred into vehicle fuel tanks in a calendar month, providing the associated facility is not a retail service station.

• 415.B.5.c: To add a requirement that applicable performance tests be conducted within 30 days of completion of construction for any new or modified vapor recovery system. “Applicable” means as required by the Authority to Construct, Permit to Operate, or CARB Executive Order. [This remedies a deficiency in the rule.]

• 415.B.5.d: To add a requirement at retail dispensing stations with Phase II vapor recovery systems that applicable reverification of performance tests be performed annually. [This remedies a deficiency in the rule.]

• 415.B.5.d: To add a requirement at facilities with Phase I and II vapor recovery systems that applicable reverification of performance tests be performed.

• To add a requirement that all Phase II systems be used only with a Phase I system capable of 95% recovery of emitted vapors.

• 415.C: To substantially revise and update appropriate test procedures for determining compliance. The added test procedures included the Static Pressure Test, Dynamic Back Pressure Test, Air-to-Liquid Volume Ratio Test, and Liquid Removal Rate Test. [This remedies a deficiency in the rule.] The purpose of revising SCAQMD Rule 461 is to make the following changes:

• 461(e)(3)(C): To allow tests and retests during the weekend under certain specified conditions.

• 461(e)(3)(D): To require the electronic submission within 72 hours of a PASS/FAIL test report on all tests conducted.

• 461(e)(3)(E): To require the submission of the final test report within 14 calendar days when all tests are passed.

• 461(e)(3)(E): To require the person responsible for conducting the tests to have completed the District's orientation class for testing, including any subsequent refresher classes.

• 461 “Attachment A”: To delete the text of the definition in the California Code of Regulations for “major defects” that is referred to in paragraph (b)(19) of the rule.

Generally, SIP rules must be enforceable (see section 110(a) of the CAA) and must require Reasonably Available Control Technology (RACT) for major sources in nonattainment areas (see section 182(b)(2)), and must not relax existing requirements (see sections 110(l) and 193). Gasoline vapor recovery rules must fulfill the special requirements for gasoline vapor recovery in certain ozone nonattainment areas (see section 182(b)(3)(A)).

The following guidance documents were used for reference:

• Requirements for Preparation, Adoption, and Submittal of Implementation Plans, EPA, 40 CFR part 51.

• Guidance Document for Correcting Common VOC & Other Rule Deficiencies, EPA Region IX (August 21, 2001). (The Little Bluebook)

• Draft Model Rule, Gasoline Dispensing Facility-Stage II Vapor Recovery, EPA (August 17, 1992).

• Gasoline Vapor Recovery Guidelines, EPA Region IX (April 24, 2000).

We believe that the approval of ICAPCD Rule 415 and SCAQMD Rule 461 and the removal of EDCAQMD Rule 425 are consistent with the relevant policy and guidance regarding enforceability, SIP relaxations, special gasoline requirements, and fulfilling RACT. All of the deficiencies cited in the previous limited approval/limited disapproval action on ICAPCD Rule 415 have been corrected. The removed EDCAQMD Rule 425 is replaced by SIP Rule 501.3.E. The TSDs have more information on our evaluation.

As authorized in section 110(k)(3) and 110(k)(6) of the CAA, we are taking actions that we believe fulfill all relevant requirements. We do not think anyone will object to this, so we are finalizing the rule removal and approvals without proposing them in advance. However, in the Proposed Rules section of this Federal Register, we are simultaneously proposing approval of the same actions. If we receive adverse comments by March 24, 2005, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on April 25, 2005. This will remove EDCAQMD (Mountain Counties portion) Rule 425 from the federally-enforceable SIP and incorporate ICAPCD Rule 415 and SCAQMD Rule 461 into the SIP. There are no sanction or FIP clock implications with our previous action on ICAPCD Rule 415.

Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 25, 2005. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Categories and entities potentially regulated by this action include:

This description is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. To determine whether your facility is regulated by this action, you should examine the applicability criteria in 40 CFR 60.270 (for electric arc furnaces constructed after October 21, 1974, and on or before August 17, 1983) or 40 CFR 60.270a (for electric arc furnaces and argon-oxygen decarburization vessels constructed after August 7, 1983), as applicable. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

In addition to being available in the docket, an electronic copy of today's final rule amendments will also be available on the Worldwide Web (WWW) through the Technology Transfer Network (TTN). Following the Administrator's signature, a copy of the final rule amendments will be placed on the TTN's policy and guidance page for proposed or promulgated rules at http://www.epa.gov/ttn/oarpg . The TTN provides information and technology exchange in various areas of air pollution control. If more information regarding the TTN is needed, call the TTN HELP line at (919) 541-5384.

Under section 307(b)(1) of the Clean Air Act (CAA), judicial review of the final rule amendments is available only by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit by April 25, 2005. Under section 307(d)(7)(B) of the CAA, only an objection to the final rule that was raised with reasonable specificity during the period for public comment can be raised during judicial review. Under section 307(b)(2) of the CAA, the requirements that are the subject of today's final rule amendments may not be challenged separately in civil or criminal proceedings brought by the EPA to enforce these requirements.

The information in this preamble is organized as follows:

An electric arc furnace (EAF) is a metallurgical furnace used to produce carbon and alloy steels. The input material to an EAF is typically 100 percent scrap steel. Cylindrical, refractory lined EAF are equipped with carbon electrodes to be raised or lowered through the furnace roof. With electrodes retracted, the furnace roof can be rotated to permit the charge of scrap steel by overhead crane. Alloying agents and fluxing materials usually are added through doors on the side of the furnace. Electric current is passed between the electrodes and through the scrap, generating arcing and the generation of enough heat to melt the scrap steel charge. After the melting and refining periods, impurities (in the form of a slag) and the refined steel are poured from the furnace.

The production of steel in an EAF is a batch process. Cycles, or heats, range from about 1 1/2 to 5 hours to produce carbon steel and from 5 to 10 hours to produce alloy steel. Scrap steel is charged to begin a cycle, and alloying agents and slag forming materials are added for refining. Stages of each cycle normally are charging, melting, refining (which usually includes oxygen blowing), and tapping.

All of those operations generate particulate matter (PM) emissions. Emission control techniques involve an emission capture system and a gas cleaning system. Emission capture systems used in the industry include direct shell (fourth hole) evacuation, side draft hoods, combination hoods, canopy hoods, scavenger ducts, and furnace enclosures. Direct shell evacuation (DEC) consists of ductwork attached to a separate, or fourth hole, in the furnace roof which draws emissions to a gas cleaner. The DEC system works only when the furnace is up-right and the roof is in place. The side draft hoods collect furnace off gases from around the electrode holes and the work doors after the gases leave the furnace. The combination hood incorporates elements from the side draft and direct shell evacuation systems. Canopy hoods and scavenger ducts are used to address charging and tapping emissions. Baghouses are typically used as the gas cleaning system.

The new source performance standards (NSPS) for EAF constructed after October 21, 1974, and on or before August 17, 1983 (40 CFR part 60, subpart AA) were first promulgated on September 23, 1975 (40 FR 43850). The NSPS for EAF constructed after August 17, 1983 (40 CFR part 60, subpart AAa) were first promulgated on October 31, 1984 (49 FR 43845). Both subparts limit the allowable PM concentration in the exhaust of an EAF emission control device to 12 milligrams per dry standard cubic meter (mg/dscm) or 0.0052 grains per dry standard cubic foot (gr/dscf). In addition to the PM emission limit, both subparts limit visible emissions from the EAF control device (typically a baghouse) to less than 3 percent opacity, as determined by EPA Method 9 of 40 CFR part 60, appendix A.

In both subparts, if the control device is equipped with a single stack, the owner or operator is required to install, calibrate, maintain, and operate a continuous opacity monitoring system (COMS). The owner or operator must report each 6-minute average COMS reading of 3 percent or greater as an excess emission. A COMS is not required on any modular or multiple-stack fabric filter if opacity readings are taken at least once per day during a melting and refining period, in accordance with EPA Method 9.

The subparts also contain requirements for the EAF capture systems. However, those requirements are not being amended by today's action. As such, we do not discuss the capture system requirements here.

We are amending the NSPS in response to a petition to reopen the NSPS filed by the American Iron and Steel Institute (AISI), the Speciality Steel Industry of North America (SSINA), and the Steel Manufacturers Association (SMA) (“the Petitioner”). In the request to reopen, the Petitioner argues that COMS are not capable of accurately monitoring opacity emissions from an EAF shop at the 3 percent excess emission threshold level, and that the EAF NSPS should be amended to address the technological shortcomings associated with COMS. In making this argument, the Petitioner points to our recent revision (65 FR 48914, August 10, 2000) to performance specification 1 (PS-1) for COMS (40 CFR part 60, appendix B) in which we acknowledge that there is potential for measurement error associated with COMS readings. On October 16, 2002 (67 FR 64014), in response to the petition, we proposed amendments to the NSPS that would allow bag leak detection systems as an alternative monitoring option. More information on the industry petition can be found in the preamble to the proposed amendments.

Today's final rule amendments reflect our full consideration of the petition, including all of the public comments received. The petition to reopen is granted to the extent provided in today's final action adding an alternative to COMS for monitoring emissions from EAF control devices. The petition is denied in all other respects. For the reasons stated in the response to comments below, we have determined that the alternatives suggested by the Petitioner are inappropriate, and that other measures, including the bag leak detection system monitoring alternative finalized today, adequately address its concerns about potential measurement error.

The final rule amendments allow plants to use a bag leak detection system on all single stack fabric filters as an alternative monitoring option to COMS. Owners or operators are required to develop a site-specific monitoring plan describing how the system will be selected, installed, and operated, including how the alarm levels will be established. In the event a bag leak detection system alarm is triggered, the owner or operator must initiate corrective action to determine the cause of the alarm within 1 hour of the alarm and alleviate the cause of the alarm within 3 hours. An approved site-specific monitoring plan may allow more than 3 hours for alleviating a specified condition where an explanation is provided justifying a longer time period.

The owner or operator also must conduct an opacity observation at least once per day when the furnace is in the melting and refining period, in accordance with EPA Method 9 (40 CFR part 60, appendix A). All opacity observations greater than 3 percent opacity must be reported as a violation of the opacity standard. In addition, if the alarm on the bag leak detection system was not alarming during the time the opacity was observed to be greater than 3 percent, the alarm on the bag leak detection system must be lowered to a point that an alarm would have occurred during the observation.

Two typographical errors are corrected in the amendments. In 40 CFR 60.274(c) and in 40 CFR 60.274a(c), the references to paragraphs (b)(1) and (2) are corrected to refer to paragraph (b). The paragraphs (b)(1) and (2) of 40 CFR 60.274(c) and 40 CFR 60.274a(c) were incorporated into paragraph (b) during the last revision to the NSPS (64 FR 10105, March 2, 1999). In 40 CFR 60.274a(b), the reference to paragraph (d) is corrected to refer to paragraph (e).

In addition, 40 CFR 60.274a(d) and 40 CFR 60.274a(e) are revised to clarify that owners and operators may petition the Administrator to approve alternatives to the monitoring requirements specified in 40 CFR 60.274a(b), as well as alternatives to the monthly operational status inspections specified in 40 CFR 60.274a(d). These revisions do not change the rules requirements because owners and operators are currently allowed to petition for alternative monitoring requirements under 40 CFR 60.13(i) of the NSPS General Provisions (40 CFR part 60, subpart A).

We received a total of 20 comment letters on the proposed amendments from representatives of three industry trade associations, one State agency, one steelmaking company, the steelworkers labor union, three equipment vendors, and two private citizens. We offered to provide interested individuals the opportunity for oral presentations of data, views, or arguments concerning the proposed amendments, but a public hearing was not requested. Today's final rule amendments reflect our full consideration of all the comments received.

Comment: We received comments supporting bag leak detection systems as an alternative to COMS from two equipment vendors, representatives of three industry trade associations, and one steelmaker. Two vendors express support for bag leak detection systems based on comparative study results and the lower operation and maintenance costs. The industry commenters express support for this alternative monitoring system because of a reported potential for measurement error associated with COMS at levels below 10 percent opacity, which they believe is evidenced by the revisions to PS-1 for COMS (65 FR 48914, August 10, 2000).

We received comments opposing bag leak detection systems as an alternative to COMS from 11 members of one equipment vending firm, two private citizens, one State environmental agency, and representatives of the steelworker's union. These commenters do not agree that the proposed alternative is necessary because revisions to PS-1 (40 CFR part 60, appendix B) in EPA's 2002 “Conditional Performance Specification for Measurement 0-10% Opacity” (designed specifically for EAF) ensure accurate COMS measurements below 10 percent opacity. The conditional performance specification addresses the limitations of PS-1 and the technical problems described in the industry's study. In addition, a low-opacity COMS that meets PS-1 and the conditional performance specification has been installed and certified on EAF. The low-opacity COMS costs only 15 percent more than a standard COMS and is easy to use. One commenter also contends that EPA has not shown in the administrative record that steel mini-mills have been improperly burdened by enforcement actions based on erroneous opacity readings below 10 percent. Another stated that allowing the proposed alternative will increase emissions and noncompliance.

The commenters argue that plants cannot use bag leak detection systems to certify continuous compliance because they are not accurate enough and do not actually measure PM or opacity. In addition, Method 9 (40 CFR part 60, appendix B) cannot provide a reasonable check of bag leak detection systems because: (1) The method is good only at opacity levels of 7 to 8 percent; (2) COMS are necessary for some facilities where Method 9 is not applicable or accurate due to factors such as baghouse orientation or extreme southern latitudes, (3) the periodic readings are taken only once daily for 18 minutes during daylight hours and not during the operations that generate the most emissions, or (4) are subject to manipulation.

Response: We disagree with commenters that bag leak detectors are ineffective or inappropriate. We have required bag leak detection systems as monitoring systems in numerous national emission standards for hazardous air pollutants (NESHAP) developed under section 112 of the Clean Air Act (CAA). We are not aware of any States or EPA Regions with concerns about certifying continuous compliance for the numerous existing rules that utilize bag leak detection systems, and the commenters did not provide any specific information in support of their assertions. These systems have been demonstrated to be very effective at detecting leaks and bag failures on a continuing basis in many different applications. The systems provide timely information that can be used to reduce excess emissions that occur when unexpected leaks or failures occur.

Bag leak detection systems offer a viable and effective alternative to COMS for monitoring the performance of baghouses. While bag leak detection systems do not directly measure PM or opacity, they sense any increase in PM concentration at very low levels before emissions rise to a level that would result in observable opacity. Given the sensitivity of bag leak detection systems to changes in PM concentration, along with the daily Method 9 observations to verify the performance of the bag leak detection systems, allowing bag leak detections systems as an alternative to COMS will not increase emissions or noncompliance. In fact, the opposite is true. By requiring owners and operators to identify leaks quickly and to make prompt repairs, we expect facilities that elect to use the bag leak detection alternative will reduce emissions.

Upon further review of the appropriateness of bag leak detection systems for the final rules, we became aware that the proposed minimum sensitivity of 10 milligrams per actual cubic meter (0.0044 grains per actual cubic foot) was near the level of the PM standard (12 mg/dscm or 0.0052 gr/dscf). However, based on consultation with vendors of bag leak detections systems, it was determined that standard bag leak detections systems are easily capable of measuring baseline emissions of 1 milligram per actual cubic meter or lower. As a result, we are lowering the minimum sensitivity to 1 milligram per actual cubic meter (0.00044 grains per actual cubic foot). This change does not represent a significant departure from our proposed amendments because it does not affect the selection or cost of the bag leak detection systems available to owners or operators, but merely provides a more accurate representation of the minimum sensitivity of existing bag leak detection systems.

We disagree that Method 9 observations are inadequate to verify the performance of the bag leak detection systems. Although the human eye may not be able to distinguish opacity to the nearest 1 percent opacity, Method 9 observations were used as a basis for the 3 percent opacity limit. Method 9 involves 15 second opacity readings that are recorded at discrete values to the nearest 5 percent opacity, i.e. , values of either 0, 5, 10, or 15 percent, etc. Over a 6-minute period, Method 9 produces 24 readings that are used to develop the 6-minute average values. Method 9 readings were used to develop the original 3 percent opacity standard and continues to be the performance test method for determining compliance identified for these final rules as well as many others for measurement of opacity. As such, the proposed daily Method 9 observations are directly applicable and appropriate for the verification of the performance of the bag leak detection systems (as well as their direct use to assess compliance).

We do not agree that the commenter's concerns about limitations on the times that Method 9 may be conducted necessitate the use of COMS. Method 9 and 40 CFR 60.273(c) and 40 CFR 60.273a(c) specify the conditions under which the tests are to be conducted. Owners and operators must schedule and conduct the daily Method 9 reading such that these conditions are met. We do not know of any EAF facility that would be unable to meet the Method 9 requirements due to baghouse orientation and extreme southern latitude, and the commenter did not provide any specific information in support of their assertions. Also, the requirement to perform the Method 9 observation during melting and refining is consistent with the existing requirements for Method 9 observations on EAF stacks that are not equipped with COMS (40 CFR 60.273(c), 60.273a(c), 60.275(i) and 60.275a(i)).

The availability of low opacity COMS also does not warrant withholding bag leak detection systems as an alternative monitoring option. Although the installation and certification of new low-opacity COMS technology and the development of the conditional performance specification appear promising, additional steps are needed in the process before we can require their application. The conditional performance specification still must be approved as an alternative method or a revision to PS-1 before a source may use it to meet Federal requirements under 40 CFR part 60, 61, or 63. During that process, the specification is potentially subject to change based on the review of additional validation studies or on public comments as part of the process for adoption as an EPA test method or as a revision to PS-1. Nonetheless, an owner or operator who would prefer to use a low-opacity COMS could install a low-opacity COMS and certify it using PS-1, or apply to certify the low opacity COMS based on the conditional performance specification as an alternative monitoring option as allowed under the NSPS General Provisions (40 CFR part 60, appendix A).

Based on a review of public comments, we maintain that the bag leak detection systems provide a reasonable alternative to the COMS requirements.

Comment: Two industry commenters state that the bag leak detection system alternative does not resolve the potential measurement error associated with COMS readings at the 3 percent opacity level and thus does not resolve the petition to reopen the NSPS. The commenters cite statements in the rulemaking for PS-1 regarding the technological limitations of COMS, including a comment by an American Society for Testing and Materials (ASTM) representative that the ASTM standard for COMS (ASTM D6216-98), which is incorporated in PS-1, ensures accurate COMS measurements only at sources with opacity limits of 10 percent or greater. They also cite EPA's estimate of the upper range of potential measurement error of 4 percent opacity, and an industry study finding that COMS complying with PS-1 requirements have a potential error band of 7.5 percent.

The commenters stated that inaccurate data results in negative legal implications, such as exposure to inappropriate enforcement actions, hurdles to certifications of continuous compliance in the title V permitting program, and the triggering of additional excess emissions reports for false positive COMS readings. One commenter adds that false positive readings from COMS have occurred, as evidenced by simultaneous information from both COMS and Method 9 readings. The commenters stated that the proposed option does not resolve the industry's petition because it does not address the COMS error band issue. Not all facilities affected by the error band issue can replace COMS with bag leak detection systems due to costs, permit requirements, and the reluctance of EPA Regional Offices to approve the change. They request that EPA raise the excess reporting threshold to account for the error band, acknowledge that the COMS data within the error band are not credible evidence of opacity violations, or eliminate the COMS requirement in its entirety.

One commenter suggests that EPA retain the COMS requirements but require plants to report only the data that exceeds 10 percent opacity to address the error band issue. Opacity data less than 10 percent should not be recorded or reported.

Response: The alternatives suggested by the commenters do not provide adequate assurance and documentation that the opacity standard is being continuously maintained. Raising the excess reporting threshold would preclude the permitting authority and the public from obtaining information on any opacity exceedances falling below the new higher threshold (as high as 10 percent under the commenters' view) and thus undermine accountability to the 3 percent opacity standard. Eliminating the COMS requirement would result in the wholesale loss of continuous opacity measurements, even where exceedances are far above the potential error band.

The revisions to PS-1 explained that it was not appropriate to limit the applicability of PS-1 based on the level of the emission limit that would be measured. We determined that PS-1 should acknowledge the uncertainty associated with COMS measurements below 10 percent opacity and allow for consideration of the potential error (through statistical procedures or otherwise) when evaluating compliance with opacity standards below 10 percent. As commenters acknowledge, EPA conducted a very conservative analysis of the upper range of potential measurement error that may be associated with COMS meeting PS-1 and found the upper range of potential measurement error to be about 4 percent. We also noted that a “properly operating and aligned COMS should experience measurement error significantly less than this magnitude.” Thus, instead of broadly limiting the applicability of COMS, any uncertainty should be addressed on a case-by-case basis.

We note that while COMS is the required monitoring method (in the absence of a source choosing the alternative monitoring option finalized today), Method 9 remains the performance test method and, as such, is the benchmark against which other data are compared in determining source compliance. 1 If the company believes the COMS data are not credible evidence of an opacity violation, it may dispute the materiality of such data in its compliance certification or excess emissions report. 2 It may also challenge the relevance and accuracy of the COMS data in a judicial or administrative tribunal. 3 Thus, it is not necessary or appropriate to make a broad determination that COMS data within the potential error band are not credible evidence of opacity violations.

In addition, the bag leak detection system alternative provides owners or operators who are concerned with the accuracy of COMS measurements the option to use bag leak detection systems instead of COMS. Case-by-case approval of this alternative monitoring method by EPA Regional Offices will no longer be necessary after the alternative is incorporated into the NSPS through today's final rule amendments.

Comment: Comments from the industry trade associations support the proposed alternative but oppose certain provisions. They suggest that: (1) Facilities should be allowed 1 hour (rather than 30 minutes) to initiate procedures to determine the cause of an alarm, (2) the proposed 3-hour limit for alleviating the cause of an alarm be replaced with “as soon as practicable” or “within a reasonable time” to account for scenarios that may take longer than 3 hours to identify and fix, and (3) facilities should not have to receive advance approval of their site-specific monitoring plan.

Response: A key and necessary component of the bag leak detection system alternative is the requirement to initiate corrective action and alleviate the cause of alarms as soon as possible. Providing specific time requirements makes the standard much clearer for both the regulators and the regulated community. Based on our experience with baghouses, bag leak detectors, and the various corrective actions that may be required, we determined that the 30-minute period to initiate corrective action was insufficient and should be revised to 1 hour. This change is consistent with the bag leak detection requirements we have promulgated in other rules.

We agree that the cause of the alarm should be alleviated as soon as practicable; however, the 3-hour limit is reasonable and necessary to ensure that corrective action needed to alleviate the cause of the alarm be taken to ensure timely action and to protect the environment. Most causes of an alarm can be fixed within the 3-hour limit. For example, modern baghouses have multiple compartments so that one compartment can be quickly isolated ( i.e. , taken out of service) to perform maintenance or to isolate a leaking bag without requiring the process to be shut down. Nonetheless, we have added a provision to the final rule amendments stating that, as part of the site-specific monitoring plan, the Administrator or delegated authority may approve such additional time as necessary to ensure corrective action as expeditiously as practicable where the owner or operator identifies the condition that could lead to an alarm and adequately explains why the 3-hour limit for the condition is not feasible. This adequately addresses those few scenarios where more than 3 hours is necessary to alleviate the cause of the alarm.

We are retaining the requirement to receive advance approval of site-specific monitoring plans. Pre-approval of the monitoring plans serves several purposes. First, it provides EPA an indication of which monitoring method the facility will use. Second, it ensures that the monitors will be properly installed for all applicable emission points. In addition, it provides the owner or operator some assurance that the proposed monitoring approach will be satisfactory and may avoid unnecessary expenditures if the monitoring approach was found to be inadequate after it was implemented.

Comment: One commenter proposed a change to 40 CFR 60.723(e)(6)(ii), which reads: “opacity over zero percent would require an adjustment of the bag leak detection system alarm levels.” The commenter stated this should read “over three percent.”

Response: As discussed above, a Method 9 opacity observation is composed of 24 individual, 15 second opacity readings. Each individual reading is recorded in 5 percent increments. As such, any visible emissions would be recorded as 5 percent opacity or greater. Baghouses in good working condition control emissions to below the level that would result in visible emissions ( i.e. , zero percent). If visible emissions are observed from a baghouse, it is an indication that a leak has occurred, and the bag leak detection system should be adjusted to ensure the alarm sounds at that point or below.

Comment: One commenter stated the proposed amendment improperly relaxes monitoring requirements by allowing excursions from bag leak detection system operational parameters for up to 3 percent of facility operating hours. The commenter stated that this provision does not ensure continuous compliance with the opacity and particulate emission limits.

On the other hand, comments from industry trade associations oppose the 3 percent limit on alarms because: (1) It undermines the purpose of bag leak detection systems, which is to detect emissions before they become exceedances; and (2) the limit assumes that alarms equate to exceedances or that the alarms indicate poor operation. The number of alarms may reflect only how low a facility sets the alarm level, and the operating limit serves to increase the stringency of the emission limit. Instead, the commenter suggests that EPA adopt an alarm threshold above which plants would be required to implement a quality improvement plan or adopt a threshold of 5 percent as it has done in other rules. The proposed amendments should also describe more clearly how operating time is to be calculated and confirm what operations would constitute a startup, shutdown, or malfunction.

Response: We reconsidered the 3 percent limit on alarms for baghouse leak detection system alarms as applied to EAF. We have no data indicating that the 3 percent limit on alarms has been applied to these operations, and we have no firm basis for determining what level, if any, might be appropriate for these operations. We agree that the purpose of bag leak detection systems is to detect emissions before they become exceedances. For these reasons, we have dropped the 3 percent limit on alarms. However, it is important that corrective action be initiated promptly; consequently, we require that corrective actions be initiated within 1 hour of an alarm to ensure baghouses are well maintained and operated properly on a continuing basis. Excessive alarms are effectively limited by the general duty under 40 CFR 60.11(d) to maintain and operate air pollution control equipment in a manner consistent with good air pollution control practices for minimizing emissions.

In response to the comments, we have not included the following proposed provisions in the final rule amendments: (1) The definition of “operating time” in 40 CFR 60.271(p) and 60.271a, (2) the proposed operating limit in 40 CFR 63.273(g) and 63.273a(g), (3) associated provisions in 40 CFR 63.273(h) and 63.273a(h) for determining how to calculate the percentage of time the alarm sounds, and (4) associated recordkeeping and recording requirements in 40 CFR 63.276(e) and (f) and 40 CFR 63.276a(h)(4) and (i).

Comment: One commenter asks EPA to specify whether bag leak detection system records must be reported according to the requirements in 40 CFR 70.6(c) and 71.6(c) and whether the records may be used to establish violations under the NSPS credible evidence requirements in 40 CFR 60.11. Should EPA remove the 3 percent allowance for operation of the EAF and fume collection system while the bag leak detection system indicates bag leaks or pressure loss, the amendments should clarify that any system failures that cause an alarm are evidence of a violation.

Response: With regard to recordkeeping and reporting requirements under 40 CFR part 70, 40 CFR 70.6(c) and 71.6(c) clearly require that title V permits include recordkeeping and reporting provisions covering the bag leak detection system records in this NSPS (40 CFR 60.273(c), 60.273a(c), 60.276(e), and 60.276a(h)). The part 70 regulations state that title V permits must contain recordkeeping and reporting requirements consistent with 40 CFR 70.6(a)(3) and 71.6(a)(3), respectively. Those provisions further provide that the permit must incorporate “all applicable recordkeeping requirements, including “[r]ecords of required monitoring information,” and “all applicable reporting requirements.” They also require “[s]ubmittal of reports of any required monitoring at least every six months.”

Whether such records establish violations of the opacity limit will vary depending on the circumstances presented. As stated previously, the purpose of bag leak detection systems is to detect emissions before they become exceedances. Whether a particular alarm or exceedance can be used as credible evidence of such a violation depends upon the facts presented in each case. Additionally, as we stated in the preamble to the credible evidence rule, “what evidence is credible and admissible will be determined by * * * taking into account how the evidence was gathered and the specifics of the emission standard and any associated reference method.” (62 FR 8314, 8323, February 24, 1997). 4

Independent of whether a particular alarm or exceedance is credible evidence of a violation of the opacity limit, sources have a duty to comply with the baghouse leak detection system monitoring requirements where a source chooses such monitoring as an alternative to COMS, and failure to comply with the monitoring requirements could give rise to an enforcement action under section 113(a)(3) or section 304(a) of the CAA.

Comment: Comments from industry trade associations do not oppose the editorial corrections to 40 CFR 60.274(c) and 60.274a(c), but the commenter questions why the proposed wording of the regulatory text differs from the existing rule. The existing rule was amended on October 17, 2000, to read:

Response: We did not intend to alter the placement of the word “that” in 40 CFR 60.274(c) and 60.274a(c). We have revised the placement of the word “that” in the final rule amendment to follow “at any other time,” as suggested by the commenter, to clarify that the Administrator does not choose which of the three monitoring options a facility must use.

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

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

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

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

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

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

The information collection requirements in the final rule amendments have been submitted for approval to OMB under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The information collection requirements are not enforceable until OMB approves them.

The information requirements in the final rule amendments are based on notification, recordkeeping, and reporting requirements in the NSPS General Provisions (40 CFR part 60, subpart A), which are mandatory for all operators subject to NSPS. The records and reports required by these rule amendments are necessary for EPA to: (1) Identify new, modified, or reconstructed sources subject to the rule; (2) ensure that the rule requirements are being properly applied; and (3) ensure that the emission control devices are being properly operated and maintained on a continuous basis. Based on the reported information, EPA can decide which plants, records, or processes should be inspected. The recordkeeping and reporting requirements are specifically authorized by section 114 of the CAA (42 U.S.C. 7414). All information submitted to the EPA pursuant to the recordkeeping and reporting requirements for which a claim of confidentiality is made is safeguarded according to Agency policies in 40 CFR part 2, subpart B.

The annual increase to monitoring, recordkeeping, and reporting burden for the final rule amendments are estimated at 1,750 labor hours at a total cost of $96,145 nationwide, and the annual average increase in burden is 175 labor hours and $9,615 per source. The estimate of the increase in annual monitoring, recordkeeping, and reporting annual cost in the final rule amendment is higher than the estimate made in the proposal by $34,878, which is due to the use of a higher cost of labor estimate ($26.16/hr, $54.94/hr including overhead) than was used in the proposal ($16.67/hr, $35.01/hr including overhead). We estimate that there will be no increase in the annualized capital costs due to the final rule amendments. We estimate that the annualized costs associated with purchasing and installing a bag leak detection system are equal to the offsetting annualized cost savings associated with the discontinued use and periodic replacement of a COMS. In making the estimates, it was assumed that ten existing facilities currently required to install and operate COMS would elect to use the proposed alternative monitoring option. The cost estimates reflect increased costs associated with the installation and operation of a bag leak detection system and with daily opacity observations partially offset by the cost savings from no longer having to operate and maintain a COMS.

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

An Agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control number for EPA's regulations in 40 CFR part 60 are listed in 40 CFR part 9. When this ICR is approved by OMB, the Agency will publish a technical amendment to 40 CFR part 9 in the Federal Register to display the OMB control number for the approved information collection requirements contained in these final rule amendments.

The EPA has determined that it is not necessary to prepare a regulatory flexibility analysis in connection with the final rule amendments. For the purposes of assessing the economic impact of today's final rule amendments on small entities, small entity is defined as: (1) A small business according to U.S. Small Business Administration size standards for NAICS code 331111 having no more than 1,000 employees; (2) a small government jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and that is not dominant in its field.

After considering the economic impacts of today's final rule amendments on small entities, EPA has concluded that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the proposed rule on small entities” (5 U.S.C. 603 and 604). Thus, an agency may conclude that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic impact on all of the small entities subject to the rule.

The final rule amendments provide a new compliance option for all facilities (large or small) that is designed to increase flexibility. We have, therefore, concluded that today's final rule amendments will relieve regulatory burden for all small entities.

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

The EPA has determined that the final rule amendments do not contain a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments, in the aggregate, or to the private sector in any 1 year. The maximum total annualized costs of the final rule amendments for any year is estimated at less than $97,000. Thus, today's final rule amendments are not subject to sections 202 and 205 of the UMRA. The EPA has also determined that the final rule amendments contain no regulatory requirements that might significantly or uniquely affect small governments because they contain no requirements that apply to such governments or impose obligations upon them. Thus, today's final rule amendments are not subject to the requirements of section 203 of the UMRA.

Executive Order 13132 (64 FR 43255, August 10, 1999) 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.”

The final rule amendments do not have federalism implications. They will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. None of the affected facilities are owned or operated by State governments, and the requirements of the final rule amendments will not supersede State regulations that are more stringent. Thus, Executive Order 13132 does not apply to the final rule amendments.

Executive Order 13175 (65 FR 67249, November 9, 2000) requires EPA to develop an accountable process to ensure “meaningful and timely input in the development of regulatory policies on matters that have tribal implications.”

The final rule amendments do not have tribal implications, as specified in Executive Order 13175. They 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. No tribal governments own or operate an affected source. Thus, Executive Order 13175 does not apply to the final rule amendments.

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

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. The final rule amendments are not subject to Executive Order 13045 because they are based on control technology and not on health or safety risks. No children's risk analysis was performed because the action only provides EAF owners and operators with an alternative monitoring option. Furthermore, the final rule amendments have been determined not to be “economically significant” as defined under Executive Order 12866.

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

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

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA has submitted a report containing the final rule amendments 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 the publication of the final rule amendments in today's Federal Register . The final rule amendments are not a “major rule” as defined by 5 U.S.C. 804(2).

The NFIP enables property owners to purchase flood insurance which is generally not otherwise available. In return, communities agree to adopt and administer local floodplain management aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage as authorized under the National Flood Insurance Program, 42 U.S.C. 4001 et seq. ; unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59 et seq. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. However, some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue their eligibility for the sale of insurance. A notice withdrawing the suspension of the communities will be published in the Federal Register .

In addition, the Federal Emergency Management Agency has identified the special flood hazard areas in these communities by publishing a Flood Insurance Rate Map (FIRM). The date of the FIRM if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may legally be provided for construction or acquisition of buildings in the identified special flood hazard area of communities not participating in the NFIP and identified for more than a year, on the Federal Emergency Management Agency's initial flood insurance map of the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment under 5 U.S.C. 553(b) are impracticable and unnecessary because communities listed in this final rule have been adequately notified.

Each community receives a 6-month, 90-day, and 30-day notification letter addressed to the Chief Executive Officer that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications have been made, this final rule may take effect within less than 30 days.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Considerations. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Administrator has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the communities unless they take remedial action.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Paperwork Reduction Act. This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

Executive Order 12612, Federalism. This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, October 26, 1987, 3 CFR, 1987 Comp.; p. 252.

Executive Order 12778, Civil Justice Reform. This rule meets the applicable standards of section 2(b)(2) of Executive Order 12778, October 25, 1991, 56 FR 55195, 3 CFR, 1991 Comp.; p. 309.

This is a synopsis of the Commission's Report and Order, MB Docket No. 04-288, adopted February 2, 2005, and released February 4, 2005. The full text of this Commission decision is available for inspection and copying during regular business hours at the FCC's Reference Information Center, Portals II, 445 Twelfth Street, SW., Room CY-A257, Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20054, telephone 1-800-378-3160 or http://www.BCPIWEB.com. The Commission will send a copy of this Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

This is a summary of the Commission's Report and Order, MB Docket No. 04-224, adopted February 2, 2005, and released February 4, 2005. The full text of this Commission decision is available for inspection and copying during normal business hours in the Commission's Reference Center 445 Twelfth Street, SW., Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20054, telephone 1-800-378-3160 or http://www.BCPIWEB.com. The Commission will send a copy of this Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

This interim rule implements Section 816 of the National Defense Authorization Act for Fiscal Year 2005 (Public Law 108-375). Section 816 amends 10 U.S.C. 2416(d) to increase, from $500,000 to $1,000,000, the threshold at which a DoD contract must include a requirement for the contractor to provide to cooperative agreement holders, upon their request, a list of the contractor's employees who are responsible for entering into subcontracts. The rule amends the prescription for use of the clause at DFARS 252.205-7000, Provision of Information to Cooperative Agreement Holders, to reflect the new dollar threshold.

This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

DoD does not expect this rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. While the rule will reduce administrative burdens for contractors, the economic impact is not expected to be substantial. Therefore, DoD has not performed an initial regulatory flexibility analysis. DoD invites comments from small businesses and other interested parties. DoD also will consider comments from small entities concerning the affected DFARS subpart in accordance with 5 U.S.C. 610. Such comments should be submitted separately and should cite DFARS Case 2004-D025.

The information collection requirements of the clause at DFARS 252.205-7000, Provision of Information to Cooperative Agreement Holders, have been approved by the Office of Management and Budget, under Control Number 0704-0286, for use through September 30, 2007.

A determination has been made under the authority of the Secretary of Defense that urgent and compelling reasons exist to publish an interim rule prior to affording the public an opportunity to comment. This interim rule implements Section 816 of the National Defense Authorization Act for Fiscal Year 2005 (Public Law 108-375). Section 816 amends 10 U.S.C. 2416(d) to increase, from $500,000 to $1,000,000, the threshold at which a DoD contract must include a requirement for the contractor to provide to cooperative agreement holders, upon their request, a list of the contractor's employees who are responsible for entering into subcontracts. Section 816 became effective upon enactment on October 28, 2004. Comments received in response to this interim rule will be considered in the formation of the final rule.

DFARS Transformation is a major DoD initiative to dramatically change the purpose and content of the DFARS. The objective is to improve the efficiency and effectiveness of the acquisition process, while allowing the acquisition workforce the flexibility to innovate. The transformed DFARS will contain only requirements of law, DoD-wide policies, delegations of FAR authorities, deviations from FAR requirements, and policies/procedures that have a significant effect beyond the internal operating procedures of DoD or a significant cost or administrative impact on contractors or offerors. Additional information on the DFARS Transformation initiative is available at http://www.acq.osd.mil/dpap/dfars/transf.htm.

This final rule is a result of the DFARS Transformation initiative. The rule—

• Amends DFARS 228.105 to clarify that fidelity and forgery bonds are authorized for use under certain circumstances; and

• Amends DFARS 228.106-7(a) to update a cross-reference.

DoD published a proposed rule at 69 FR 48444 on August 10, 2004. DoD received no comments on the proposed rule. Therefore, DoD has adopted the proposed rule as a final rule without change.

This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

DoD certifies that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. , because the rule updates and clarifies DFARS text, with no substantive change in policy.

The Paperwork Reduction Act does not apply because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

A. Background

DFARS Transformation is a major DoD initiative to dramatically change the purpose and content of the DFARS. The objective is to improve the efficiency and effectiveness of the acquisition process, while allowing the acquisition workforce the flexibility to innovate. The transformed DFARS will contain only requirements of law, DoD-wide policies, delegations of FAR authorities, deviations from FAR requirements, and policies/procedures that have a significant effect beyond the internal operating procedures of DoD or a significant cost or administrative impact on contractors or offerors. Additional information on the DFARS Transformation initiative is available at http://www.acq.osd.mil/dpap/dfars/transf.htm .

This final rule is a result of the DFARS Transformation initiative. The rule revises DFARS 229.101 to remove text pertaining to (1) resolution of issues regarding the applicability of taxes under DoD contracts; and (2) tax relief agreements between the United States and European governments. This text has been relocated to the new DFARS companion resource, Procedures, Guidance, and Information (PGI), available at http://www.acq.osd.mil/dpap/dars/pgi .

DoD published a proposed rule at 69 FR 48445 on August 10, 2004. DoD received no comments on the proposed rule. Therefore, DoD has adopted the proposed rule as a final rule without change.

This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

DoD certifies that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. , because the rule relocates DoD procedural information related to tax relief, with no substantive change in policy.

The Paperwork Reduction Act does not apply because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

This final rule adds policy at DFARS 246.402 and 246.404 to eliminate the requirement for Government contract quality assurance at source for contracts or delivery orders valued below $250,000, unless (1) mandated by DoD regulation, (2) required by a memorandum of agreement between the acquiring department or agency and the contract administration agency, or (3) the contracting officer determines that certain conditions exist.

DoD published a proposed rule at 68 FR 53946 on September 15, 2003. Thirty-seven respondents submitted comments on the proposed rule. Nine of the respondents were in favor of the rule, noting that the change will result in savings, will expedite deliveries, and is especially appropriate for commercial items. A discussion of comments submitted by the other respondents is provided below:

1. Comment: It is unclear as to why the criteria of both 242.402(3)(i) and (ii) must be met. If the Government specifies important technical requirements (through technical documents, specifications, drawings, etc.), there is adequate justification for Government quality assurance at source. Paragraphs (3)(i) and (ii) should be combined to read “(i) Contract technical requirements are significant ( e.g., the technical requirements include drawings, test procedures, characteristics that are critical to proper performance of the item are identified, specific concerns have been identified with regard to the contractors ability to meet technical requirements, etc)”.

DoD Response: Do not agree with the proposed revision. However, 246.402(3)(ii) has been revised in the final rule for clarity.

2. Comment: Section 246.402(3)(iii), addressing manufacturers/producers and non-manufacturers/non-producers, should be eliminated.

DoD Response: Do not agree. The delivery of supplies through a non-manufacturer or non-producer affects the ability to perform meaningful quality assurance at sources. The rule is intended to ensure that contracting officers address this issue.

3. Comment: Section 246.402(3)(iii) should be clarified to explain its meaning and how it will be defined to apply equally.

DoD Response: Do not agree. The terms in paragraph (3)(iii), relating to manufacturers and producers, are sufficiently clear and do not require definition.

4. Comment: One respondent posed a question regarding 246.402(3)(ii) and asked about the interpretation of critical product features/characteristics and specific acquisition concerns at the contract administration office level.

DoD Response: The final rule revises 246.402(3) to further clarify the requirement for the contracting officer to ensure that critical product features and characteristics are identified, either through contract technical requirements or through other communications with the provider of the Government contract quality assurance at source, and to identify specific concerns. The contract administration office should assist in this identification as appropriate, but is not expected to provide the information absent the contracting officer activities.

5. Comment: To minimize confusion that will ensue regarding determinations for the need for source inspection, the phrase “critical product feature” should be clarified.

DoD Response: The final rule revises 246.402(3)(ii) for further clarification.

6. Comment: The following subparagraphs should be added to 246.402 as exceptions to the proposed rule: (3)(iv)—“The contract will require shipment of material OCONUS”; and (4)—“Contract is in support of a Security Assistance or Foreign Military Sales case.” The comment details additional costs and export licenses associated with free on board (f.o.b.) destination conditions for OCONUS shipments and agreed-to letters of offer and acceptance between the U.S. Government and foreign governments.

DoD Response: Do not agree with the recommended change. If the conditions for Government contract quality assurance at source are met, the additional requirements may be communicated by defining them as a specific acquisition concern.

7. Comment: Section 246.402(3) should be revised to provide flexibility with regard to the first two criteria and to add a fourth criterion to allow for other circumstances determined by the contracting officer after consultation with quality assurance personnel.

DoD Response: Do not agree. Neither an additional criterion nor changes to the existing criteria are needed. However, 246.402(3)(ii) has been revised for further clarity.

8. Comment: The text at 246.402 provides differing criteria for Government contract quality assurance at source than that found at FAR 46.404.

DoD Response: Do not agree. FAR 46.404 directs the user to FAR 46.402, which is supplemented by this DFARS change.

9. Comment: DFARS 246.405 should be reinstated to ensure that subcontract activities parallel the proposed change.

DoD Response: Do not agree. The provisions of FAR 46.405 adequately address required Government quality assurance activity at the subcontract level.

10. Comment: FAR 52.213-4(d) and FAR 52.246-2 should not be used concurrently in the same contract.

DoD Response: The comment is outside the scope of this case. However, it is noted that FAR 46.302 specifically allows for inclusion of the clause at FAR 52.246-2 in contracts below the simplified acquisition threshold when it is in the Government's best interest.

11. Comment: The threshold of $250,000 could be twice that amount.

DoD Response: DoD considers a threshold of $250,000 to be appropriate at this time.

12. Comment: The dollar threshold should be eliminated on the basis that it is irrelevant and appears arbitrary in nature. Technical description, complexity, and criticality are the FAR 46.203 criteria for establishment of contract quality requirements.

DoD Response: DoD recognizes that cost is not the indicator of requirements for Government contract quality assurance at source. Therefore, the conditions for Government contract quality assurance at source as described in the rule are of primary importance. The establishment of a dollar threshold is a means for ensuring that contracting offices apply the conditions as a matter of course.

13. Comment: The words “and delivery orders” should be deleted from the introductory sentence of 246.402 to support Air Force Material Command strategic contracts.

DoD Response: Do not agree. Delivery orders under strategic contracts must meet the conditions described in the rule in order to receive Government contract quality assurance at source.

14. Comment: The rule should explicitly address indefinite delivery/indefinite quantity contracts used through corporate contracts that may mix source and destination inspection/acceptance requirements on the same contract.

DoD Response: Do not agree. The rule already addresses delivery orders. For delivery orders under $250,000, only contract line items that meet the conditions specified in the rule qualify for Government contract quality assurance at source.

15. Comment: Contracting offices are not capable of providing critical characteristics.

DoD Response: Do not agree. A basic responsibility of the contracting office, per FAR 46.103, is to provide technical requirements and any specifications for inspection, testing, and other contract quality requirements essential to ensure the integrity of the supplies or services.

16. Comment: The contracting officer receives quality assurance requirements from the technical activity (FAR 46.103) and is not adequately trained to determine whether technical requirements are significant and to identify critical product features/characteristics.

DoD Response: The technical activity provides quality assurance requirements to the contracting officer, including inspection and testing requirements, which are conveyed to the contractor and the contract administration activity by the contracting officer.

17. Comment: DFARS 213.402, Conditions for Use of Fast Payment Procedures, should be changed to accommodate direct vendor delivery awards exceeding the $25,000 threshold for use of fast payment procedures, and awards that combine contract line items being shipped to stock not meeting the fast payment conditions, as well as direct vendor delivery contract line items that do; and to provide for instances when the best value is conditional on f.o.b. origin shipment terms. Additionally, conflict with FAR 47.305-5 and 47.304-1(d) may be resolved by amending DFARS 213.402 further by adding (a)(vi)—“When the sole reason for designating inspection and acceptance at source would be because f.o.b. origin is required in accordance with FAR 47.305-5 and 47.304-1(d).”

DoD Response: The recommended changes are outside the scope of this case.

18. Comment: Instead of this new language, allow “good” contractors to deliver with limited Government contract quality assurance at source, since adequate tools are available to the Government quality assurance representative ( i.e., alternative release procedures, certificates of conformance, and fast pay).

DoD Response: Do not agree. The intent of the change is to alleviate Government contract quality assurance at source for those procurements that typically are limited to the assessments of kind, count, and condition. With the exception of certificates of conformance, the tools described in this comment do not alleviate quality assurance activities at source. The tools will remain available for use as appropriate.

19. Comment: The change to 246.402 is too broad. It should be applied to commercial items and non-commercial items delivered via certificate of conformance.

DoD Response: Do not agree. The scope of the rule is appropriate. The conditions for Government contract quality assurance at source as described are of primary importance.

20. Comment: Contractors approved for alternative release procedures should be allowed to continue to conduct their own origin inspections and designate contracts to approved contractors for continued origin inspection.

DoD Response: Do not agree. The comment expresses a misapplication of the alternative release provision as defined by DFARS 246.471(b).

21. Comment: Language should be added to provide for Government contract quality assurance at source due to adverse manufacturer past performance; significant changes to the supplier's quality assurance program, manufacturing environment, or supplier base; or the previous receipt of nonconforming material for same or similar items.

DoD Response: The events described by the respondent may necessitate the requirement for Government contract quality assurance at source. Circumstances such as these are adequately covered by the provision for specific acquisition concerns at 246.402(3)(ii)(C).

22. Comment: Instead of the dollar value, the clause should be designed to reduce Government contract quality assurance at source for ISO-certified suppliers.

DoD Response: Do not agree. Currently, DoD does not require certification to international standards as a contract condition, opting to require compliance with associated contract quality requirements. Although ISO certification/compliance is a risk management tool considered while performing Government contract quality assurance, the comment is not supported by current acquisition regulations and policies.

23. Comment: The change ignores the relationship with the f.o.b. point.

DoD Response: Do not agree. The rule affects the f.o.b. point as specified by FAR 47.302(c)(2). However, there is no conflict. The provisions of FAR 47.302 state that the place of performance of Government acquisition quality assurance actions and the place of acceptance shall not control the delivery term, except when acceptance is at destination.

24. Comment: Contracts will need to be modified to account for additional cost burden associated with the f.o.b. point based on the change, per FAR 47.302. Additional costs will be incurred through contractor liability for delivery, storage, demurrage, and other costs prior to actual delivery; duplicate packaging and marking by the contractor and the Government; and liability for loss/damage before shipment receipt.

DoD Response: Do not agree. The rule affects the f.o.b. point as specified by FAR Part 47 and, as such, will require contractors to consider those costs when proposing on future contracts. However, current contracts will not require modification, because this change is not retroactive.

25. Comment: The f.o.b. points for both solicitations and contracts (FAR 47.305-5(a)(1) and 47.302(c)(1)) conflict with the rule, particularly when shipping to foreign military sales customers and Naval vessels.

DoD Response: Do not agree. The rule affects the f.o.b. point as specified by FAR 47.302(c)(2); however, there is no conflict. The provisions of FAR 47.302 state that the place of performance of Government acquisition quality assurance actions and the place of acceptance shall not control the delivery term, except when acceptance is at destination. Additionally, solicitation provisions are available to the contracting officer with regard to FAR 47.305-5(b)(2) when destinations are unknown that would not result in a conflict.

26. Comment: The phrase “for contracts assigned administration to the Defense Contract Management Agency” should be added to allow for the conduct of Government contract quality assurance at source when conditions are not met by the contracting agency.

DoD Response: Do not agree. The initiative to reduce Government contract quality assurance at source unless appropriate conditions exist should not be applicable to only one DoD agency. The conditions described allow for effective Government contract quality assurance at source for all involved in DoD acquisition and make the best use of resources throughout DoD.

27. Comment: The rule should exempt contractor plants with in-plant Defense Contract Management Agency offices. It is not cost-effective to have hardware delivered, subjected to process assessment at the plant level, then inspected at another location. If non-exempt, assure that the rule is only applied to future contracts.

DoD Response: The rule will result in Government contract quality assurance at source for only those supplies that meet the conditions of the rule. The rule is not retroactive to include current contracts.

28. Comment: The Government quality assurance representative provides assistance in interpreting contract requirements and facilitates corrections.

DoD Response: Agree. The revision does not preclude Government quality assurance representatives from providing assistance to contractors in support of Government contract interpretation as appropriate and facilitating corrections with the contracting office.

29. Comment: The Government quality assurance representative provides deterrence with regard to fraudulent activities.

DoD Response: Not applicable. Government contract quality assurance is not intended to detect fraudulent activities. It is incumbent upon all involved in Government acquisition to identify and report any potentially fraudulent activities.

30. Comment: The Government quality assurance representative at source rejects nonconforming parts based on more than defined critical characteristics.

DoD Response: Agree. The revision does not preclude the rejection of nonconforming parts based solely on critical characteristics at destination or, when the conditions of the proposed change exist, at source.

31. Comment: The rule should address instances where no Government inspection is required, especially when in-process system activities are performed.

DoD Response: Do not agree. Government contract quality assurance activities, whether at source or destination, are required to perform the Government acceptance function and subsequent transfer of title. In-process assessments are a form of Government contract quality assurance at source. At times, the quality assurance activities may be extremely limited, such as when quality assurance is limited to kind, count, and condition assessments (inspections); however, they nonetheless occur.

32. Comment: DoD should implement fast payment procedures for all contracts that require inspection at Government facilities.

DoD Response: Not applicable. Conditions for use of fast payment procedures are outside the scope of this case.

33. Comment: Recommend acceptance at source with inspection at destination, which will increase the fast payment procedure threshold and the expanded use of certificates of conformance to allow invoicing at shipment.

DoD Response: Do not agree. DoD regulations and policy do not allow for acceptance prior to Government contract quality assurance activities. Fast payment provisions are outside the scope of this case. The conditions for use of certificates of conformance are not being modified, and the certificate of conformance continues to be a valuable acquisition tool.

34. Comment: DoD should implement a joint contractor-Government process approach to the appropriate oversight level, with sampling techniques or self-oversight.

DoD Response: Do not agree. Presently, Government contract quality assurance at source activities may be performed jointly with the contractor. The rule does not affect this activity.

35. Comment: Will surplus contracts continue to be administered by the Defense Contract Management Agency?

DoD Response: The comment is outside the scope of this case. Assignment of contract administration by the contracting activity is in accordance with FAR Part 42 and DFARS Part 242. Contract administration represents more than quality assurance services and is dependent on the terms of the individual contract.

36. Comment: Will surplus contractors be required to re-package and re-label items prior to shipping? If so, how will DoD ensure traceability back to the original DoD contract and conformance to the surplus certification?

DoD Response: Not applicable. Packaging and traceability requirements specified by individual contracts are outside the scope of this case.

37. Comment: The rule should be amended to clearly state that it does not impose or otherwise change the inspection criteria currently adhered to by surplus contractors via 52.211-9000, Government Surplus Material DLAD (APR 2002).

DoD Response: Do not agree. The DFARS applies to DoD as a whole. Unique department and agency implementation activities are outside the scope of the case.

38. Comment: The memorandum of agreement provisions should be changed to allow negotiation at the contracting activity level instead of the department or agency.

DoD Response: Do not agree. Departments and agencies may issue their own procedures to identify the appropriate authority for approval of a memorandum of agreement.

39. Comment: Inspection locations should be specified in the solicitation.

DoD Response: Not applicable. Terms of individual solicitations are outside the scope of this case. However, it is the obligation of the contracting officer to specify the terms and conditions that apply to a contract.

40. Comment: The rule should be amended to require the Government to inspect material no later than 30 days following receipt and that payment be made no later than 60 days regardless of inspection occurrence.

DoD Response: Not applicable. The comment relates to payment terms, which are outside the scope of this case.

41. Comment: Provide the date when the new electronic payment system will be implemented.

DoD Response : There is no new electronic payment system. However, if the respondent is referring to the new Wide Area WorkFlow-Receipt and Acceptance (WAWF-RA) system, it is available now and has already been widely deployed. Many DoD locations are already registered in WAWF-RA, and more are being continually added. However, because submission under a particular contract is dependent on the acceptance point designated for that contract being registered in WAWF-RA, availability may vary. If a company is unsure whether a particular DoD location is registered in WAWF-RA, they should contact that activity to confirm WAWF-RA status.

42. Comment : Implementation of the policy should be deferred until WAWF-RA is fully deployed by DoD; or the rule should be phased in to provide for destination acceptance for locations participating in WAWF-RA to limit invoicing delays. Some companies would be adversely affected by delays in payment and the current cycle time (estimated as 45 days for paper invoices and 37 electronically) could increase by 10 days or more.

DoD Response : Sufficient guidance is presently available to facilitate Government contract quality assurance at destination to include acceptance. Achieving department-wide implementation of WAWF-RA, although anticipated to increase efficiencies, is not necessary to implement this rule.

43. Comment : DoD should develop detailed metrics to accumulate real savings associated with the change.

DoD Response : Do not agree. Development of metrics is outside the scope of this case.

44. Comment : The rule should be based on unit costs instead of contract value.

DoD Response : Do not agree. Cost is not the indicator of requirements for Government contract quality assurance at source. Therefore, the conditions for Government contract quality assurance at source as described in the rule are of primary importance.

45. Comment : Discontinuing source inspections under $250,000 sends a clear signal that low risk equates to low value.

DoD Response : Do not agree. This change does not signal a direct relationship between dollar value and risk, since it recognizes that Government contract quality assurance may be necessary and appropriate for items of any dollar value. The established criteria for accomplishment of Government contract quality assurance at source are intended to drive the decision.

46. Comment : One respondent remarked that it will not bid on contracts with inspection/acceptance at destination, due to the criticality of obtaining acceptance documentation to permit invoicing and the difficulty of obtaining this documentation when acceptance is at destination.

DoD Response : Sufficient guidance is currently available to facilitate Government contract quality assurance at destination to include acceptance. Full operational capability of Wide Area WorkFlow-Receipt and Acceptance is expected to increase efficiencies, but is not necessary to implement this rule.

47. Comment : The change will result in the delivery of nonconforming material and increase the administrative burden of buying activities.

DoD Response : Do not agree. There is no evidence to support this assertion. Contractual obligations to provide conforming material are not lessened by this change. Contracting offices are obligated to ensure that contractors are responsive and responsible prior to contracting for supplies.

48. Comment : The change increases the burden on the destination point without the required manpower, expertise, or equipment to perform destination inspection and acceptance.

DoD Response : Do not agree. The destination quality assurance activities anticipated as a result of this revision should consist of the assessment of item kind, count, and physical condition. Destination activities normally assess kind, count, and condition of items delivered to them, even when this assessment has already been performed at source. If the exceptions described in the DFARS rule exist, Government contract quality assurance at source should be designated.

49. Comment : Inspection at source decreases instances of improper completion of DD Forms 250.

DoD Response : Do not agree. The Government quality assurance representative provides valuable assistance in these matters; however, accurate completion of DD Form 250 is the obligation of the contractor, in accordance with DFARS Appendix F. There is no evidence to indicate that instances of improper completion will increase as a result of this change.

50. Comment : The integrity of higher-level packaging will be destroyed at destination inspection.

DoD Response : Contracting offices will need to assess the effect regarding the integrity of higher-level packaging when determining where Government contract quality assurance will be performed and will need to adjust contract terms accordingly. If the packaging is unique to a supplier, or if the integrity of the packaging would be in question, this may constitute a specific acquisition concern that would meet the exception in the rule at 246.402(3)(ii)(C).

51. Comment : The change will result in the closure of Defense Contract Management Agency offices, thus reducing activities associated with subcontractor surveillance.

DoD Response : Do not agree. There is no evidence to support the assertion that this change will result in the closure of Defense Contract Management Agency offices or adversely impact abilities associated with the surveillance of subcontractor activities.

52. Comment : The change will result in increased costs to the Government receipt point.

DoD Response : Do not agree. Overall DoD costs will be reduced, because duplicate “kind, count, and condition” inspections will be eliminated. The only additional responsibilities imposed on destination activities are those associated with the execution and distribution of the DD Form 250. DoD deployment of Wide Area WorkFlow-Receipt and Acceptance should greatly relieve this burden.

53. Comment : Delays in inspection will delay delivery to the military user.

DoD Response: Do not agree. There is no evidence to support the assertion.

54. Comment : Defense Contract (Criminal) Investigative Services should be solicited to review small-dollar contractors under investigation for fraudulent activities.

DoD Response: The comment is outside the scope of this case.

This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

DoD has prepared a final regulatory flexibility analysis consistent with 5 U.S.C. 604. The analysis is summarized below. A copy of the analysis may be obtained from the point of contact specified herein.

This final rule amends the DFARS to eliminate requirements for Government contract quality assurance at source for contracts or delivery orders valued below $250,000 unless: (1) Mandated by DoD regulation; (2) required by a memorandum of agreement between the acquiring department or agency and the contract administration agency; or (3) the contracting officer determines that certain conditions exist that make contract quality assurance at source necessary. The objective of the rule is to reduce lower-risk contract quality assurance workload, allowing for redirection of limited labor resources to higher-risk work, while providing flexibility for exceptions where special attention is needed. Several respondents expressed concern about delays in payment that might be experienced due to the reduction in the number of source inspections. DoD implementation of Wide Area WorkFlow-Receipt and Acceptance, a web-based system for electronic invoicing, receipt, and acceptance, will significantly speed up the acceptance and payment process and should offset any delays due to reductions in source inspections. Many DoD locations are already registered in Wide Area WorkFlow-Receipt and Acceptance, and more are being continually added. Since Wide Area WorkFlow-Receipt and Acceptance is well on the way toward full implementation, DoD believes that any economic impact on small entities will be minimal.

The Paperwork Reduction Act does not apply because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

Regulations governing the Loligo squid fishery are found at 50 CFR part 648. The regulations require specifications for maximum sustainable yield, initial optimum yield, allowable biological catch, domestic annual harvest (DAH), domestic annual processing, joint venture processing, and total allowable levels of foreign fishing for the species managed under the Atlantic Mackerel, Squid, and Butterfish Fishery Management Plan. The procedures for setting the annual initial specifications are described in § 648.21.

The regulations at § 648.21(d)(1) allow for the previous year's annual specifications to remain in effect if the annual specifications for the new fishing year are not published in the Federal Register prior to the start of the fishing year. The 2004 annual quota for Loligo squid was 16,872.4 mt, with 5,606.7 mt allocated to Quarter I (69 FR 4861, February 2, 2004).

The annual quota in 2005 is not proposed to change from the 2004 value, but because the proposed 2005 Research Set-Aside (RSA) is greater than the 2004 RSA allocation, the individual Quarterly quotas are minimally different. The proposed rule for the 2005 annual specifications published on January 10, 2005 (70 FR 1686), with a comment period open through February 9, 2005. The proposed 2005 annual quota for Loligo squid is 16,744.9 mt. This amount is proposed to be allocated by quarter, as shown below.

Under the regulations implementing the Fishery Management Plan for Crustacean Fisheries of the Western Pacific Region (Crustaceans FMP) at 50 CFR 660.50(b)(2), every year NMFS is required to publish a harvest guideline for lobster Permit Area 1, which encompasses the exclusive economic zone ( 0 to 200 nm from shore) around the NWHI. The fishery has been closed since 2000. This action is (a) taken as a precautionary measure to prevent overfishing of the lobster resources while NMFS conducts biological research and assessment on the lobster stocks; (b) in compliance with an order of the U.S. District Court for the District of Hawaii to keep the NWHI commercial lobster fishery closed until an environmental impact statement and a biological opinion have been prepared for the Crustaceans FMP; and (c) consistent with Executive Orders 13178 and 13196, issued in December 2000 and January 2001, respectively, that established the NWHI Coral Reef Ecosystem Reserve.

NMFS will not publish any harvest guideline for the NWHI commercial lobster fishery for the year 2005, and no harvest of NWHI lobster resources is allowed. NMFS intends to continue to study and assess the status of the lobster populations in the NWHI and examine the resulting information to determine the appropriate direction for future fishery management actions.