This rule is issued under Marketing Agreement and Order No. 983, regulating the handling of pistachios grown in California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, pistachio handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as issued herein will be applicable to all assessable pistachios beginning September 1, 2004, and continue until amended, suspended, or terminated. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

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

This rule establishes the continuing assessment rate established for the Committee and for the 2004-05 and subsequent fiscal periods of $0.0014 per pound of pistachios received for processing and establishes assessment reporting requirements under the California pistachio order. The quantity of pistachios received by the handler for processing is converted to an assessed weight pursuant to § 983.6 and the assessment rate is applied to that weight in determining a handler's assessment obligation for the fiscal period. Requiring handlers to file annual Receipts/Assessment Reports with the Committee will facilitate the Committee's collection of handler assessments.

Sections 983.52 and 983.53 of the pistachio order provide authority for the Committee, with the approval of USDA, to formulate an annual budget of expenses and to collect assessments from handlers to administer the marketing order. Each handler who receives pistachios for processing in each production year (fiscal year) is required to pay an assessment based on the pro rata share of the expenses authorized by USDA which are reasonable and likely to be incurred by the Committee during that year. The assessment obligation for each handler is computed by applying the assessment rate set by USDA to each handler's assessed weight computed pursuant to § 983.6 of the pistachio order.

The members of the Committee are producers and handlers of California pistachios. They are familiar with the Committee needs and with the costs for goods and services in their local area, and are, thus, in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.

The Committee met on August 17, 2004, and unanimously recommended 2004-05 expenditures of $271,499 and an assessment rate of $0.0014 per pound of pistachios received for processing. This was the first public meeting of the newly formed Committee since the pistachio marketing order became effective on April 6, 2004 (69 FR 17944). The major expenditures recommended by the Committee for the 2004-05 fiscal period include $110,249 for administrative expenses; $34,500 for compliance expenses; $101,750 for salaries; and $25,000 for a contingency reserve.

Because this is a new order and there is no carry-in income, the Committee is borrowing funds from the California Pistachio Commission (Commission) until assessments are collected in March 2005. The Committee discussed the necessity of setting a relatively high assessment rate for the 2004-05 fiscal period because it is necessary to generate sufficient funds to reimburse the Commission, to cover the Committee's 2004-05 expenditures, and to build an adequate reserve to cover Committee expenditures until the 2005-06 fiscal period's assessments are available in December 2005.

The assessment rate recommended by the Committee was derived by dividing anticipated expenses plus funds to establish a reserve by expected receipts (the assessed weight) of pistachios grown in California during 2004-05 ($271,499 plus $190,501 divided by 330,000,000 pounds = $0.0014). With pistachio receipts for the year estimated at 330,000,000 pounds, assessment income is expected to total of $462,000.

The Committee may carry over excess funds into subsequent production years (fiscal years) as a reserve, provided that funds already in the reserve do not exceed approximately two production years' budgeted expenses. In the event that funds exceed two production years' budgeted expenses, future assessments will be reduced to bring the reserves to an amount that is less than or equal to two production years' budgeted expenses (§ 983.56). Funds in the reserve will be kept within the maximum permitted by the order.

Under § 983.53 the Committee, prior to the beginning of each production year, shall recommend and the Secretary shall set the assessment for the following production year, which shall not exceed one-half of one percent of the average price received by producers in the preceding production year. According to the Commission's Annual Report for the 2003-04 crop year, the average price received by producers was $1.15 per pound. One-half of one percent equals $0.005. Taking ($0.005) × ($1.15) = $0.00575 for the maximum assessment rate allowed. The rates considered by the Committee ranged from $0.001 to $0.0014. The recommended assessment rate of $0.0014 is less than the maximum provided for in the order.

The assessment rate established in this rule will continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other available information.

Although this assessment rate will be in effect for an indefinite period, the Committee will continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. USDA will evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The Committee's 2004-05 budget and those for subsequent fiscal periods will be reviewed and, as appropriate, approved by USDA.

Section 983.47 of the pistachio order provides authority for establishing reporting requirements. Under the order, the Committee may, with the approval of the Secretary, establish reporting requirements to collect necessary information or data.

At its first meeting, the Committee also unanimously recommended that handlers file a Receipts/Assessment Report with the Committee to facilitate the Committee's collection of handler assessments.

Handlers, including custom hullers, who receive pistachios for processing (removal of green hulls and drying pistachios to 5 percent moisture), will be required to pay an assessment attributable to the assessed weight of pistachios received by that handler and to report that assessed weight to the Committee on the Receipts/Assessment Form. Pursuant to § 983.6 of the order, the term “assessed weight” means the pounds of inshell pistachios, free of internal defects as defined in § 983.39(b)(4) and (5), with the weight computed at 5 percent moisture, received for processing by a handler within each production year: Provided, That for loose kernels, the actual weight shall be multiplied by two to obtain an inshell weight.

A final order published on July 26, 2004 (69 FR 44460), delayed the implementation date for § 983.39(b)(4) and (5), of the order until February 1, 2005. A final order published on January 5, 2005 (70 FR 661), further delayed the implementation date for § 983.39(b)(4) and (5), of the order until August 12, 2005. Therefore, for the 2004-05 fiscal period, each handler who receives pistachios for processing will be required to furnish the Receipts/Assessment Report to the Committee and pay all due assessments to the Committee by March 15, 2005. For subsequent fiscal periods, each handler who receives pistachios for processing will be required to furnish the Receipts/Assessment Report and pay all due assessments to the Committee by December 15 of the applicable fiscal period.

The recommended reporting requirements are similar to those required by the Commission. Because the Commission is prohibited from sharing confidential handler information, the Committee recommended that a Receipt/Assessment Report be developed for Committee use and that the receipts information already compiled for the Commission be attached to the newly developed Committee form. Thus, handlers will not be duplicating their efforts and both agencies will receive necessary receipts/assessment data. The Committee estimates this action will affect 20 handlers of pistachios and further estimates that, on average, handlers will expend approximately 4 minutes per year to prepare and submit this report to the Committee. These actions are in the interest of producers and handlers.

To facilitate assessment collections under the order, the Committee unanimously recommended establishing § 983.253. This section sets the continuing assessment rate and establishes the reporting requirements necessary to verify that each handler has paid the correct assessment. Section 925.253 shall read as follows: § 983.253 Assessment rate. (a) On and after September 1, 2004, an assessment rate of $0.0014 per pound of pistachios received for processing is established for California Pistachios. The assessment obligation of each handler will be computed by applying the assessment rate to the assessed weight computed pursuant to § 983.6. (b) For the 2004-05 fiscal period each handler who receives pistachios for processing shall furnish the Receipts/Assessment Report to the Committee and pay all due assessments to the Committee by March 15, 2005. For subsequent fiscal periods, each handler who receives pistachios for processing shall furnish the Receipts/Assessment Report and pay all due assessments to the Committee by December 15 of the applicable fiscal period.

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

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

There are approximately 20 handlers of California pistachios subject to regulation under the order and approximately 741 producers in the production area. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $5,000,000. Eight of the 20 handlers subject to regulation have annual pistachio receipts of at least $5,000,000. In addition, 722 producers have annual receipts less than $750,000. Thus, the majority of handlers and producers of California pistachios may be classified as small entities.

This rule establishes a continuing assessment rate for the Committee and collected from handlers for the 2004-05 and subsequent fiscal periods of $0.0014 per pound of pistachios received for processing and establishes reporting requirements under the California pistachio order. Requiring handlers to file annual Receipts/Assessment Reports with the Committee will facilitate the Committee's collection of handler assessments. Pistachios harvested and received in August of any year shall be applied to the subsequent production year for order purposes.

The California pistachio order provides authority for the Committee, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Committee are producers and handlers of California pistachios. They are familiar with the Committee needs and with the costs for goods and services in their local area, and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.

The Committee met on August 17, 2004, and unanimously recommended 2004-05 expenditures of $271,499 and an assessment rate of $0.0014 per pound of pistachios received for processing. This was the first public meeting of the newly formed Committee since the pistachio marketing order became effective on April 6, 2004 (69 FR 17944). The major expenditures recommended by the Committee for the 2004-05 fiscal period include $110,249 for administrative expenses; $34,500 for compliance expenses; $101,750 for salaries; and $25,000 for a contingency reserve.

Because this is a new order and there is no carry-in income, the Committee is borrowing funds from the Commission until assessments are collected in March 2005. The Committee discussed the necessity of setting a relatively high assessment rate for the 2004-05 fiscal period because it is necessary to generate sufficient funds to reimburse the Commission, to cover the Committee's 2004-05 expenditures, and to build an adequate reserve to cover Committee expenditures until the 2005-06 fiscal period's assessments are available in December 2005.

The assessment rate recommended by the Committee was derived by dividing anticipated expenses plus funds to establish a reserve by expected receipts of pistachios grown in California ($271,499 plus $190,501 divided by 330,000,000 pounds = $0.0014). With pistachio receipts for the year estimated at 330,000,000 pounds, assessment income should total $462,000.

The Committee may carry over such excess into subsequent production years as a reserve, provided that funds already in the reserve do not exceed approximately two production years' budgeted expenses. In the event that funds exceed two productions years' budgeted expenses, future assessments will be reduced to bring the reserves to an amount that is less than or equal to two production years' budgeted expenses. Funds in the reserve will be kept within the maximum permitted by the order (§ 983.56).

The assessment rate in this rule will continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other available information.

Although this assessment rate will be in effect for an indefinite period, the Committee will continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. USDA will evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The Committee's 2004-05 budget and those for subsequent fiscal periods will be reviewed and, as appropriate, approved by USDA.

The Committee discussed alternative 2004-05 expenditures of $246,499, which did not include $25,000 for a contingency reserve. However, the Committee believes that it is important to establish a contingency reserve for unforeseen expenditures, and, thus, unanimously recommended expenditures in the amount of $271,499.

A review of historical information and preliminary information pertaining to the upcoming fiscal period indicates that the grower price for the 2004-05 season could range between $1.30 and $1.40 per pound of assessed weight pistachios. Therefore, the estimated assessment revenue for the 2004-05 fiscal period as a percentage of total grower revenue could range between .11 and .10 percent.

Section 983.47 of the pistachio order provides authority for establishing reporting requirements. Under the order, the Committee may, with the approval of the Secretary, establish reporting requirements to collect necessary information or data.

To facilitate the collection of handler assessments, the Committee also unanimously recommended that handlers file a Receipts/Assessment Report with the Committee. Both small and large handlers will be required to file the report and to pay assessments. The report will be filed by handlers (including custom hullers) who receive pistachios for processing (removal of green hulls and drying pistachios to 5 percent moisture).

Handlers who receive pistachios for processing, will be required to pay an assessment attributable to the assessed weight of pistachios received by that handler and to report that assessed weight to the Committee on the Receipts/Assessment Form. The term “assessed weight” is defined in § 983.6 of the pistachio order.

The computation of assessed weight involves requirements specified in §§ 983.39(b)(4) and (5). A final order published on July 26, 2004, (69 FR 44460), delayed the implementation date of those sections until February 1, 2005. A final order published on January 5, 2005, (70 FR 661), further delayed the implementation date for § 983.39(b)(4) and (5), of the order until August 12, 2005. Therefore, for the 2004-05 fiscal period, each handler who receives pistachios for processing will be required to furnish the Receipts/Assessment Report to the Committee and pay all due assessments to the Committee by March 15, 2005. For subsequent fiscal periods, each handler who receives pistachios for processing will be required to furnish the Receipts/Assessment Report and pay all due assessments to the Committee by December 15 of the applicable fiscal period.

While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. Some of the additional costs may be passed on to producers. However, these costs are offset by the benefits derived by the operation of the marketing order. In addition, the Committee's meeting was widely publicized throughout the pistachio industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the August 17, 2004, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), AMS submitted to the Office of Management and Budget a revision to approved information collection OMB No. 0581-0215, “Pistachios Grown in California.” This information collection has been approved by OMB.

This rule imposes no additional reporting or recordkeeping requirements on either small or large pistachio handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

A proposed rule concerning this action was published in the Federal Register on December 10, 2004 (69 FR 71749). Copies of the proposed rule were also mailed or sent via facsimile to all pistachio handlers. Finally, the proposal was made available through the Internet by USDA and the Office of the Federal Register. A 60-day comment period ending February 8, 2005, was provided for interested persons to respond to the proposal.

One opposing comment was received. The commenter considered a continuing assessment rate for the Committee to be an outdated method for agricultural marketing. However, the establishment of the assessment rate is consistent with the marketing order and the Act under which the marketing order is implemented.

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

After consideration of all relevant material presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

Pursuant to 5 U.S.C. 553, it also found and determined that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) The fiscal year began September 1, 2004, and the assessment rate applies to all pistachios received during the 2004-05 and subsequent seasons; (2) handlers received the 2004-05 crop pistachios by October 2004; and (3) handlers are required to complete and submit the ACP-1 to the Committee by March 15, 2005. Further, handlers are aware of this rule which was unanimously recommended at a public meeting. Also a 60-day comment period was provided for in the proposed rule.

This rule will impose some additional reporting and recordkeeping on both small and large pistachio handlers. This action will require one new Committee form. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. In addition, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

This administrative rule is governed by the provisions of Sections 556 and 557 of Title 5 of the United States Code and, therefore, is excluded from the requirements of Executive Order 12866.

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

The Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), provides that administrative proceedings must be exhausted before parties may file suit in court. Under Section 608c(15)(A) of the Act, any handler subject to an order may request modification or exemption from such order by filing with the Department a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with the law. A handler is afforded the opportunity for a hearing on the petition. After a hearing, the Department would rule on the petition. The Act provides that the District Court of the United States in any district in which the handler is an inhabitant, or has its principal place of business, has jurisdiction in equity to review the Department's ruling on the petition, provided a bill in equity is filed not later than 20 days after the date of the entry of the ruling.

In accordance with the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), the Agricultural Marketing Service has considered the economic impact of this action on small entities and has certified that this interim rule will not have a significant economic impact on a substantial number of small entities. For the purpose of the Regulatory Flexibility Act, a dairy farm is considered a “small business” if it has an annual gross revenue of less than $750,000, and a dairy products manufacturer is a “small business” if it has fewer than 500 employees.

For the purposes of determining which dairy farms are “small businesses”, the $750,000 per year criterion was used to establish a marketing guideline of 500,000 pounds per month. Although this guideline does not factor in additional monies that may be received by dairy producers, it should be an inclusive standard for most “small” dairy farmers. For purposes of determining a handler's size, if the plant is part of a larger company operating multiple plants that collectively exceed the 500-employee limit, the plant will be considered a large business even if the local plant has fewer than 500 employees. For purposes of determining a handler's size, if the plant is part of a larger company operating multiple plants that collectively exceed the 500-employee limit, the plant will be considered a large business even if the local plant has fewer than 500 employees.

During September 2003, the month during which the hearing began, there were 106 dairy producers pooled on, and 22 handlers regulated by, the Arizona-Las Vegas order. Approximately 18 producers, or 17 percent, were small businesses based on the above criteria. On the handler side, 7, or 32 percent were “small business”.

The adoption of the proposed pooling standard serves to revise established criteria that determine the producer milk that has a reasonable association with—and consistently serves the fluid needs of—the Arizona-Las Vegas milk marketing area and is not associated with other marketwide pools concerning the same milk. Criteria for pooling are established on the basis of performance levels that are considered adequate to meet the Class I fluid needs and by doing so determine those that are eligible to share in the revenue that arises from the classified pricing of milk. Criteria for pooling are established without regard to the size of any dairy industry organization or entity. The established criteria are applied in an identical fashion to both large and small businesses and do not have any different economic impact on small entities as opposed to large entities. Therefore, the proposed amendment will not have a significant economic impact on a substantial number of small entities.

A review of reporting requirements was completed under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). It was determined that the amendment would have no impact on reporting, record keeping, or other compliance requirements because they would remain identical to the current requirements. No new forms are proposed and no additional reporting requirements would be necessary.

No other burdens are expected to fall on the dairy industry as a result of overlapping Federal rules. The rulemaking proceeding does not duplicate, overlap, or conflict with any existing Federal rules.

Prior documents in this proceeding:

Notice of Hearing: Issued July 31, 2003; published August 6, 2003 (68 FR 46505).

Correction to Notice of Hearing: Issued August 20, 2003; published August 26, 2003 (68 FR 51202)

Notice of Reconvened Hearing: Issued October 27, 2003; published October 31, 2003 (68 FR 62027).

Notice of Reconvened Hearing: Issued December 18, 2003; published December 29, 2003 (68 FR 74874).

Tentative Final Decision: Issued December 23, 2004; published December 30, 2004 (69 FR 250).

The findings and determinations hereinafter set forth supplement those that were made when the Arizona-Las Vegas order was first issued and when it was amended. The previous findings and determinations are hereby ratified and confirmed, except where they may conflict with those set forth herein.

The following findings are hereby made with respect to the Arizona-Las Vegas order:

(a) Findings upon the basis of the hearing record. Pursuant to the provisions of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), and the applicable rules of practice and procedure governing the formulation of marketing agreements and marketing orders (7 CFR Part 900), a public hearing was held upon certain proposed amendments to the tentative marketing agreement and to the order regulating the handling of milk in the Arizona-Las Vegas marketing area.

Upon the basis of the evidence introduced at such hearing and the record thereof it is found that:

(1) The Arizona-Las Vegas order, as hereby amended on an interim basis, and all of the terms and conditions thereof, will tend to effectuate the declared policy of the Act;

(2) The parity prices of milk, as determined pursuant to Section 2 of the Act, are not reasonable in view of the price of feeds, available supplies of feeds, and other economic conditions which affect market supply and demand for milk in the marketing area, and the minimum prices specified in the order, as hereby amended on an interim basis, are such prices as will reflect the aforesaid factors, insure a sufficient quantity of pure and wholesome milk, and be in the public interest; and

(3) The Arizona-Las Vegas order, as hereby amended on an interim basis, regulates the handling of milk in the same manner as, and is applicable only to persons in the respective classes of industrial and commercial activity specified in, a marketing agreement upon which a hearing has been held.

(b) Additional Findings. It is necessary and in the public interest to make these interim amendments to the Arizona-Las Vegas order effective April 1, 2005. Any delay beyond that date would tend to disrupt the orderly marketing of milk in the aforesaid marketing area.

The interim amendments to this order are known to handlers. The final decision containing the proposed amendments to this order was issued on December 23, 2004.

The changes that result from these interim amendments will not require extensive preparation or substantial alteration in the method of operation for handlers. In view of the foregoing, it is hereby found and determined that good cause exists for making these interim order amendments effective on April 1, 2005. It would be contrary to the public interest to delay the effective date of these amendments for 30 days after their publication in the Federal Register . (Sec. 553(d), Administrative Procedure Act, 5 U.S.C. 551-559.)

(c) Determinations. It is hereby determined that:

(1) The refusal or failure of handlers (excluding cooperative associations specified in Sec. 8c(9) of the Act) of more than 50 percent of the milk, which is marketed within the specified marketing area, to sign a proposed marketing agreement, tends to prevent the effectuation of the declared policy of the Act;

(2) The issuance of this interim order amending the Arizona-Las Vegas order is the only practical means pursuant to the declared policy of the Act of advancing the interests of producers as defined in the order as hereby amended;

(3) The issuance of the interim order amending the Arizona-Las Vegas order is favored by at least two-thirds of the producers who were engaged in the production of milk for sale in the marketing area.

The FAA proposed to amend part 39 of the Federal Aviation Regulations (14 CFR Part 39) with an AD to supersede AD 2002-08-14, amendment 39-12722 (67 FR 19655, April 23, 2002). The existing AD applies to all Airbus Model A300 B2 and B4; A300 B4-600, B4-600R, and F4-600R (collectively called A300-600); and A310 series airplanes. The proposed AD was published in the Federal Register on October 27, 2004 (69 FR 62627), to retain certain requirements of the existing AD. The action also proposed to require modification of all affected parking brake operated valves (PBOVs), or replacement with new, non-affected PBOVs, which would terminate the requirements of the existing AD.

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

One commenter, on behalf of its member operators, has no technical objection to the proposed AD, but requests withdrawing the proposed AD because the service information specified in Table 1 of the proposed AD meets the intent of the proposed AD.

We do not agree with the commenter's request to withdraw the proposed AD. There is no legal requirement for an operator to incorporate a service bulletin without an AD. Therefore, it is necessary to issue this AD to mandate that certain actions be done to correct the identified unsafe condition.

We have carefully reviewed the available data, including the comment that has been submitted, and determined that air safety and the public interest require adopting the AD as proposed, except as discussed under “Changes to Applicability.”

In the proposed AD, we inadvertently did not include Model A300 C4-605R Variant F airplanes. We are including that airplane model in this AD. No airplanes of that model are currently on the U.S. Register and thus providing notice and opportunity for public comment is unnecessary before this AD is issued. We have determined that this change will neither increase the economic burden on any operator nor increase the scope of the AD.

The following table provides the estimated costs for U.S. operators to comply with this AD. This AD will affect about 168 airplanes of U.S. registry.

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

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

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

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

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

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

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

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

What events have caused this AD? The Federal Office of Civil Aviation (FOCA), which is the airworthiness authority for Switzerland, recently notified FAA that an unsafe condition may exist on certain Pilatus Aircraft Ltd. Models PC-12 and PC-12/45 airplanes. FOCA reports a co-pilot windshield de-ice system failure, which was caused by an overheated return wire in the windshield heating system. Investigation revealed that the wiring in the windshield heating system was not installed following the specifications in the applicable wiring diagrams.

What is the potential impact if FAA took no action? Windshield de-ice wiring of the incorrect size could result in heat damage of the windshield de-ice wiring. This failure could lead to possible fire in the overhead panel of the flight compartment.

Is there service information that applies to this subject? Pilatus Aircraft Ltd. has issued Service Bulletin No. 30-009, dated January 25, 2005.

What are the provisions of this service information? The service bulletin includes procedures for:

What action did FOCA take? FOCA classified this service bulletin as mandatory and issued Swiss AD Number HB-2005-079, dated February 11, 2005, to ensure the continued airworthiness of these airplanes in Switzerland.

Did FOCA inform the United States under the bilateral airworthiness agreement? These Pilatus Aircraft Ltd. Models PC-12 and PC-12/45 airplanes are manufactured in Switzerland and are type-certificated for operation in the United States under the provisions of § 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement.

Under this bilateral airworthiness agreement, FOCA has kept us informed of the situation described above.

What has FAA decided? We have examined FOCA's findings, reviewed all available information, and determined that we need to issue an AD for products of this type design that are certificated for operation in the United States.

Since the unsafe condition described previously is likely to exist or develop on other Pilatus Aircraft Ltd. Models PC-12 and PC-12/45 airplanes of the same type design that are registered in the United States, we are issuing this AD to detect and replace windshield de-ice wiring of the incorrect size, which could result in heat damage of the windshield de-ice wiring. This failure could lead to possible fire in the overhead panel of the flight compartment.

What does this AD require? This AD requires you to incorporate the actions in the previously-referenced service bulletin.

In preparing this rule, we contacted type clubs and aircraft operators to get technical information and information on operational and economic impacts. We did not receive any information through these contacts. If received, we would have included a discussion of any information that may have influenced this action in the rulemaking docket.

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

Will I have the opportunity to comment before you issue the rule? This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to submit any written relevant data, views, or arguments regarding this AD. Send your comments to an address listed under ADDRESSES. Include the docket number, “FAA-05-20399; Directorate Identifier 2005-CE-02-AD” at the beginning of your comments. We will post all comments we receive, without change, to http://dms.dot.gov , including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this AD.

Using the search function of our docket Web site, anyone can find and read the comments received into any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). This is docket number FAA-05-20399; Directorate Identifier 2005-CE-02-AD. You may review the DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78) or you may visit http://dms.dot.gov .

Are there any specific portions of this AD I should pay attention to? We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. If you contact us through a nonwritten communication and that contact relates to a substantive part of this AD, we will summarize the contact and place the summary in the docket. We will consider all comments received by the closing date and may amend this AD in light of those comments and contacts.

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

What authority does FAA have for issuing this rulemaking action? Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

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

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

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

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

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

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

We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES. Include “Docket No. FAA-05-20399; Directorate Identifier 2005-CE-02-AD” in your request.

The Direction Générale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, notified the FAA that an unsafe condition may exist on certain Dassault Model Falcon 2000EX and 900EX series airplanes. The DGAC advises that an analysis and tests of the Honeywell Primus Epic system installed on Model Falcon 2000EX and 900EX series airplanes revealed a potential for all information presented on the cockpit display units to become invalid during flight. The cause of the malfunctioning cockpit display units has been attributed to a failure of a network interface controller (NIC) for the avionics standard communication bus (ASCB), which causes a loss of ASCB synchronization. The ASCB failure could result in a loss of data from all four of the cockpit display units, and loss of all radio communications (with the exception of VHF emergency frequency and last frequency used), primary navigation instruments, autopilot, auto-throttle, central alerting system, aural alarms, and normal braking (on Model Falcon 2000EX series airplanes only). These losses could reduce the flightcrew's situational awareness, increase flightcrew workload, and consequently reduce the ability to maintain safe flight and landing of the airplane.

We have determined that since the Honeywell Primus Epic system is also installed on Gulfstream Model GV-SP series airplanes and on Empresa Brasileira de Aeronautica S.A. (EMBRAER) Model ERJ 170 series airplanes, those airplanes are subject to an unsafe condition similar to that addressed in this AD. In light of that determination, we issued AD 2005-04-06, amendment 39-13978 (70 FR 7847, February 16, 2005) (for Model GV-SP series airplanes), and issued AD 2004-26-12, amendment 39-13924 (69 FR 78300, December 30, 2004) (for Model ERJ 170 series airplanes), to address the unsafe condition on those airplane models. We may consider additional rulemaking on other airplane models having the Honeywell Primus Epic system that also exhibit a similar unsafe condition.

Dassault has issued Service Bulletin F2000EX-58, dated January 10, 2005; and Service Bulletin F900EX-256, dated January 10, 2005. These service bulletins describe procedures for performing an inspection to check the integrity of the ASCB by inspecting for any faults. The inspection involves using a maintenance laptop computer to run a TELNET session.

Dassault has also issued Temporary Change 12, dated January 26, 2005, to the Dassault Falcon 2000EX Airplane Flight Manual, DGT88898 (for Model Falcon 2000EX series airplanes); and Temporary Change 14, dated January 12, 2005, to the Dassault Falcon 900EX Airplane Flight Manual, DGT84972 (for Model Falcon 900EX series airplanes). The temporary changes describe procedures for flightcrew to follow in the event that the information displayed on all four cockpit display units become invalid during flight. The procedures describe steps the flightcrew can perform to facilitate recovery of the cockpit display units, and informs the flightcrew what equipment will be unavailable during an ASCB failure/event.

In addition, Dassault has issued Service Bulletin F2000EX-59, dated February 2, 2005; and Service Bulletin F900EX-254, dated February 2, 2005. These service bulletins describe procedures for performing an avionics software upgrade to the Honeywell Primus Epic system. The software upgrade involves installing a new NIC and generic input/output (I/O) software.

Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. The DGAC mandated the service information described above and issued French emergency airworthiness directives UF-2005-024, dated January 27, 2005; and UF-2005-025, dated January 27, 2005; to ensure the continued airworthiness of these airplanes in France.

These airplane models are manufactured in France and are type certificated for operation in the United States under the provisions of § 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DGAC has kept the FAA informed of the situation described above. We have examined the DGAC's findings, evaluated all pertinent information, and determined that we need to issue an AD for products of this type design that are certificated for operation in the United States.

Therefore, we are issuing this AD to prohibit dispatch with certain equipment inoperative; and to require revising the airplane flight manual (AFM) to facilitate recovery of the cockpit display units in the event of an avionics systems communication bus (ASCB) failure and to inform the flightcrew what equipment is inoperative during an ASCB failure. This AD also requires doing an integrity check of the ASCB for any faults and corrective action if necessary, and installing an avionics software update to the Honeywell Primus Epic system. This AD requires accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between this AD and the Service Information” and “Differences Between this AD and the French Airworthiness Directives.”

Operators should note that, although the Accomplishment Instructions of the referenced service bulletins describe procedures for submitting a sheet recording compliance with the service bulletin, this AD will not require those actions. We do not need this information from operators.

The service bulletins F2000EX-58, dated January 10, 2005; and F900EX-256, dated January 10, 2005; specify that you may contact the manufacturer for instructions on how to repair certain conditions, but this AD requires you to repair those conditions using a method that we or the European Aviation Safety Agency (EASA) (or its delegated agent) approve. In light of the type of repair that would be required to address the unsafe condition, and consistent with existing bilateral airworthiness agreements, we have determined that, for this AD, a repair we or the EASA approve would be acceptable for compliance with this AD.

Although the French airworthiness directives specify a compliance time of 24 hours after the effective date of the French airworthiness directive for the AFM revisions, we specify a compliance time of 72 hours after the effective date of this AD. We find that this will prevent airplanes from being grounded unnecessarily without adversely affecting the safety of the airplanes.

Although the French airworthiness directives require operators to revise the Abnormal Procedures of the AFMs, this AD requires the Limitations section to be revised. The Limitations section of the AFM is the only AFM section mandated by the FAA.

Although the French airworthiness directives require revising the AFM by inserting operational limitations on landing with published go-around flight paths and on take-off in a certain runway visual range condition, we do not require that action. This decision is based on our determination that those operational limitation revisions are not necessary.

An unsafe condition exists that requires the immediate adoption of this AD; therefore, providing notice and opportunity for public comment before the AD is issued is impracticable, and good cause exists to make this AD effective in less than 30 days.

This AD is a final rule that involves requirements that affect flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to submit any relevant written data, views, or arguments regarding this AD. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2005-20425; Directorate Identifier 2005-NM-014-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the AD. We will consider all comments received by the closing date and may amend the AD in light of those comments.

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

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 the regulation:

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

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

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

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

The groundfish fisheries in the exclusive economic zone of the Bering Sea and Aleutian Islands management area (BSAI) are managed under the FMP. The North Pacific Fishery Management Council (Council) prepared the FMP under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801, et seq. Regulations implementing the FMP appear at 50 CFR part 679. General regulations governing U.S. fisheries also appear at 50 CFR part 600.

The Council submitted Amendment 82 for review by the Secretary of Commerce. A notice of availability of the amendment was published in the Federal Register on November 16, 2004 (69 FR 67107), with comments invited through January 18, 2005. The proposed rule for Amendment 82 was published in the Federal Register on December 7, 2004 (69 FR 70589), with comments invited through January 21, 2005. Five letters of comments were received on the notice of availability and the proposed rule. Comments are summarized and responded to under Comments and Responses, below. Amendment 82 was approved by the Secretary of Commerce on February 09, 2005.

The Consolidated Appropriations Act of 2004 (Public Law (Pub. L.) 108-199) was signed into law on January 23, 2004. Section 803 of this law allocates the AI directed pollock fishery to the Aleut Corporation for economic development in Adak, Alaska. Throughout this preamble, the term “Aleut Corporation” will mean the Aleut Corporation or its authorized agent(s) for purposes of describing activities required for managing the AI directed pollock fishery.

Public Law 108-199 requires the Aleut Corporation's selection of participants in the AI directed pollock fishery and limits participation to American Fisheries Act (AFA) (Pub. L. 105-277, Title II of Division C) qualified entities and vessels 60 feet (18.3 m) or less in length overall (LOA) with certain endorsements. Section 803(b) of Pub. L. 108-199 restricts the annual harvest of pollock in the AI directed pollock fishery by vessels 60 feet (18.3 m) LOA or less to less than 25 percent of the annual allocation until 2009, and to less than 50 percent of the annual allocation prior to 2013. These vessels must receive 50 percent of the annual directed pollock fishery allocation starting in 2013 and beyond. Amendment 82 includes the measures necessary to manage the AI directed pollock fishery.

The Council adopted Amendment 82 in June 2004 and clarified a portion of its action in October 2004. Amendment 82 revises the FMP to establish the management framework for the AI directed pollock fishery. This final rule implements the following management provisions for the AI directed pollock fishery:

1. Restrictions on the harvest specifications for the AI directed pollock fishery, including limits on the size of the annual AI pollock total allowable catch (TAC), limits on the A season harvest of TAC, allocation requirements for vessels 60 feet (18.3 m) LOA or less, and reallocation provisions for unharvested amounts of the AI pollock allocations;

2. Provisions for fishery monitoring, including the Aleut Corporation's selection and NMFS's approval of vessels and processors participating in the AI directed pollock fishery, restrictions on possession of pollock from the AI and either the Bering Sea subarea (BS) or the Gulf of Alaska on a vessel at one time, scale requirements, catch monitoring control plans (CMCPs) for shoreside and stationary floating processors, and Aleut Corporation's and participants' responsibility for ensuring the harvest does not exceed the AI directed pollock fishery allocation;

3. Reporting requirements; and

4. A new AI Chinook salmon prohibited species catch limit that, when reached, closes the directed pollock fishery in the existing Chinook salmon savings areas in the AI.

Prior to Pub. L. 108-199, the AI directed pollock fishery was managed pursuant to the AFA. The AFA allocated the AI directed pollock fishery to specific harvesters and processors identified in the AFA and specified in regulations at 50 CFR part 679. Public Law 108-199 supersedes portions of the AFA and allocates all the AI directed pollock fishery to the Aleut Corporation. Implementation of Pub. L. 108-199 requires the amendment of AFA provisions in the FMP and in the regulations at 50 CFR part 679 to provide for the allocation of the AI directed pollock fishery to the Aleut Corporation and for the management of this fishery.

The allocation of pollock to the AFA directed pollock fisheries under section 206(b) of the AFA now only pertains to the BS pollock TAC given that Pub. L. 108-199 fully allocates the AI directed pollock fishery to the Aleut Corporation. Thus, AFA restrictions associated with the directed pollock fishery, including excessive harvesting and processing shares under section 210(e) of the AFA, now apply only to the AFA allocations of BS pollock.

Similarly, AFA groundfish sideboard provisions under section 211 of the AFA do not apply to AFA entities while those entities are participating in the AI directed pollock fishery. Groundfish species taken incidental to the AI directed pollock fishery are deducted from the relevant TACs for those species, and fisheries for those species are managed by NMFS accordingly.

Twelve unique comments from one e-mail regarding Amendment 82 and one e-mail and three letters regarding the proposed rule were received. The comments are summarized and responded to below.

Comment 1: The comment period for the proposed rule should be extended by 120 days.

Response: The commentor provided no reason for the comment period extension. Because the commentor offered no justification for extending the comment period, and because NMFS considers the comment period adequate, the comment period remained 45 days.

Comment 2: All quotas should be cut by 50 percent this year and 10 percent each succeeding year. Marine sanctuaries must be established.

Response: This action establishes the management provisions for the AI directed pollock fishery and does not specify groundfish harvest levels. The harvest specifications are established by separate rulemaking at the beginning of each year. NMFS encourages the commentor to submit comments on the proposed harvest specifications when they are published in the Federal Register for public comment in approximately December of each year.

Additionally, this action does not address the creation of marine sanctuaries. The January 2004 draft environmental impact statement (EIS) for essential fish habitat discusses the effects of fishing on sensitive habitat features and evaluates a range of options for minimizing adverse effects, such as closing areas of rockfish habitat to bottom trawling. Further information on this draft EIS may be found at the NMFS Alaska Region website at www.fakr.noaa.gov .

Comment 3: The Pew Foundation and United Nations (UN) reports on overfishing are incorporated into the comments from this commentor.

Response: This action raises no issues related to overfishing. NMFS manages the groundfish fisheries on a sustainable basis, and notes that no overfishing is occurring for groundfish stocks off Alaska. The current condition of groundfish stocks is detailed in the Stock Assessment and Fishery Evaluation reports which are available on the NMFS Alaska Region website at http://www.fakr.noaa.gov/npfmc/SAFE/SAFE.htm . The commentor's specific concerns and their relationship to these reports are not identified. Because no further details are provided by the commentor, NMFS is unable to respond further to this comment.

Comment 4: The commentor provided a November 18, 2004, Associated Press article regarding the UN recommendations for banning of high seas bottom trawling. The commentor was concerned that money influences Council recommendations which allow the use of fishery resources that are owned by all of the people of the nation.

Response: This action establishes management provisions for the AI directed pollock fishery. Pollock is harvested using pelagic trawl gear, which does not have as much of an impact on the ocean bottom as bottom trawling gear. The AI directed pollock fishery is authorized by this final rule in the exclusive economic zone (EEZ) off Alaska and not in the high seas that extend beyond the EEZ. The commentor did not provide further information regarding the relationship between the UN high seas bottom trawling ban article and this action.

Even though for-profit entities work with the Council in developing recommendations for management of Alaska groundfish harvest, only the Department of Commerce has the approval authority for Council recommendations. Decisions are made considering the long term conservation and sustainability of the resource for the benefit of the nation.

Comment 5: The commentor disapproves of, objects to, and opposes the proposed rule. It does not promote the Magnuson-Stevens Act. Economic development can change an area to resemble an urban area in the United States. The economic development in Adak, Alaska is not needed. Adak's economic development should not be supported by overfishing.

Response: Public Law 108-199 requires that, if a directed pollock fishery is open in the AI, all of the quota would go to the Aleut Corporation for economic development in Adak, Alaska. This is a statutory mandate that cannot be changed by NMFS. The nature of the economic development will be decided by the Aleut Corporation and is unlikely to resemble large urban areas of the United States, considering the Aleut culture and the remote location of Adak. No overfishing is occurring in the groundfish stocks off Alaska and therefore, the AI directed pollock fishery will not result in overfishing supporting economic development.

Comment 6: The commentor opposes NMFS' action because it will result in seals, sea lions, and other marine life being starved or destroyed.

Response: NMFS analyzed the effects of this action on the human environment in the EA/RIR for this action (see ADDRESSES ) and found no significant impacts. NMFS recognizes that the AI directed pollock fishery may have impacts on marine mammals and other sea life, but these effects were found to be insignificant. Pollock is harvested using pelagic trawl gear which has less adverse effect on the environment than other types of gear. The pollock fishery has a relatively small rate of bycatch of other marine organisms compared to other groundfish fisheries, and the pollock fishery will be managed in accordance with the Steller sea lion protection measures. Fishing will be conducted 20 nautical miles from shore in almost all of the AI, thereby reducing potential interaction with marine mammals and other organisms in this sensitive, near-shore marine habitat. The pollock harvest amounts will be at or well below the acceptable biological catch (ABC), reducing the potential for competition for prey with marine mammals.

Comment 7: The inseason management flexibility to raise and lower the incidental catch allowance (ICA) needs to be included in the regulations for the AI directed pollock fishery.

Response: NMFS has implemented this provision in the final rule. Section 679.20(a)(5)(iii)(B)( 1 )( ii ) provides for the Regional Administrator to determine the amount of pollock that is needed as incidental catch in other groundfish fisheries in the AI and to deduct that amount from the annual allocation of AI pollock. The Regional Administrator should be able to reallocate the AI ICA during the fishing year if the ICA is not expected to be fully taken in the same manner as provided for in the BS fishery under § 679.20(a)(5)(i)(A)( 1 ). The provisions in § 679.20(a)(5)(i)(A)( 1 ) allow the Regional Administrator to reallocate pollock either to or from the directed fishing allowance and the ICA by publication in the Federal Register .

Without a mechanism to reallocate unharvested ICA, the potential exists that the unused pollock quota may be forgone. NMFS agrees that the regulations should provide for the full harvest of pollock quota established through the harvest specifications and avoid constraints on other groundfish fisheries from inadequate amounts of pollock ICA. Therefore, NMFS adds text to § 679.20(a)(5)(iii)(B)( 2 )( ii ) to authorize the Regional Administrator to reallocate anticipated unused ICA to the AI directed pollock fishery or to reallocate pollock from the directed pollock fishery to the ICA during the fishing year by publication in the Federal Register .

Comment 8: The Regional Administrator's seasonal apportionment of the ICA should be provided for in the regulations for Amendment 82.

Response: NMFS has implemented this provision in the final rule. Proposed § 679.20(a)(5)(iii)(B)( 3 )( i ), limits the harvest of AI pollock in the A season to no more than 40 percent of the ABC. This harvest includes the directed pollock fishery, Community Development Quota (CDQ) directed fishing allowance, and the ICA. To establish the A season directed pollock fishery allocation within the seasonal limit, the Regional Administrator must determine the amount of ICA that will be necessary to support other groundfish fisheries during the A season. Therefore, the final rule is changed from the proposed rule by including a provision in § 679.20(a)(5)(iii)(B)( 2 ) for the Regional Administrator to determine the seasonal apportionment of the ICA.

Comment 9: The Regional Administrator should have the discretion to reapportion amounts of the ICA between seasons, as provided for the directed pollock fishery.

Response: NMFS has made changes from the proposed rule in the final rule to implement this provision. Because the Regional Administrator may not be able to accurately predict the amount of ICA needed in the A and B seasons, the Regional Administrator should have discretion to reapportion the ICA to the B season, if needed. The final rule will authorize the Regional Administrator to adjust seasonal apportionments of the ICA to ensure other groundfish fisheries are not constrained by a lack of ICA in the B season. Therefore, § 679.20(a)(5)(iii)(B)( 3 )( iv ) is added to authorize the seasonal reapportionment of the ICA.

Comment 10: Non-AFA qualified catcher/processors and motherships should be allowed to participate in the AI directed pollock fishery. The Council's recommendation that all catcher/processors and motherships be AFA qualified goes beyond the requirements specified in Pub. L. 108-199, which restricted only the harvest of pollock to AFA qualified vessels greater than 60 feet (18.3 m) in length overall (LOA). No justification or rationale was provided by the Council for why catcher/processors and motherships should be AFA qualified.

Requiring all catcher/processors and motherships to be AFA qualified hinders the economic development of Adak, Alaska. The head-and-gut fleet operating in the AI have several catcher/processors that could be available to process pollock. The inclusion of these vessels in the directed pollock fishery would provide the Aleut Corporation additional alternatives for processing their pollock allocation, particularly for the small vessel fleet. Small catcher vessels could pass pollock harvests to the non-AFA qualified catcher/processors for processing. Allowing non-AFA qualified catcher/processors would provide additional locations for processing small vessel fleet pollock. Additional processing locations for the small vessel fleet have important safety and economic considerations based on: (1) the limited areas for fishing due to the Steller sea lion protection measures, (2) the severe winter weather in the AI, and (3) the potential for harvested pollock to be stranded on the catcher vessel if AFA qualified catcher/processors or motherships are engaged in the BS pollock fishery.

Response: The Council recommended that all catcher/processors and motherships participating in the AI directed pollock fishery be AFA qualified to ensure adequate monitoring provisions are used for the management of this quota-based fishery. These vessels are required to maintain AFA pollock monitoring requirements if they are used to participate in the AI directed pollock fishery. The Council recommendations do not conflict with the provisions of Pub. L. 108-199. NMFS has determined that the Council's recommendation is necessary to ensure accurate monitoring and verification of the harvest of the AI directed pollock fishery allocation. Vessels within the head-and-gut fleet are not required to meet the same monitoring requirements as AFA-qualified catcher/processors and motherships, and therefore, do not meet the monitoring needs to ensure effective management of the directed pollock fishery allocation.

NMFS agrees that special considerations will be needed for the small vessel fleet participating in this fishery. We also are concerned about the safety for small vessels in offshore waters during the winter and about the monitoring of catch from such vessels. This will be particularly important when the small vessel fleet is allocated 50 percent of the directed pollock fishery starting in 2013. NMFS will continue to work with the Council and industry to review the effectiveness of the provisions for the AI directed pollock fishery and will seek ways to balance the economic, safety, and monitoring concerns of this program.

Comment 11: Non-AFA qualified stationary floating processors should not be required to have a CMCP, as required for shoreside processors. Catcher/processors acting as motherships should have to meet the AFA mothership standards for observer coverage. Requiring a CMCP for non-AFA qualified catcher/processors is completely unreasonable.

Response: Under § 679.4 (b) and (f), Federal fisheries permits may be issued for catcher vessels, catcher/processors, and motherships for groundfish harvest, and Federal processor permits may be issued for shoreside processors and stationary floating processors. Stationary floating processors are vessels of the United States operating as processors in the Alaska State waters that remain anchored or otherwise remain stationary in a single geographic location while receiving or processing groundfish harvested in the GOA or BSAI. A catcher/processor cannot be used as a stationary floating processor unless it meets the permitting and single geographic location requirements of a stationary floating processor. NMFS agrees that all catcher/processors and motherships processing pollock from the AI directed pollock fishery should meet AFA observer requirements. CMCPs are required only for shoreside processors and stationary floating processors to ensure that all catch is sorted and weighed and to ensure the facilities and practices to support an observer are provided. The practices used for processing pollock at shoreside processors and stationary floating processors are similar, and therefore, the CMCP requirement is applied to both types of processing facilities.

Comment 12: The December 2004 allocation of groundfish in the BSAI resulted in an increase of 4,460 mt for BS pollock and a reduction of non-pollock fisheries by the same amount to ensure the 2 million mt optimum yield is not exceeded. The Council policy requires funding the AI pollock allocation by reducing the BS pollock allocation. By increasing the BS pollock allocation in the harvest specifications and subsequently reducing the non-pollock fisheries allocations, the non-pollock fisheries are funding the AI pollock allocation. Any unused AI pollock should be returned to the BS fisheries in proportion to the funding, approximately 75 percent for the BS pollock fishery and 25 percent for the non-pollock fisheries. This may be accomplished by reallocating the unused AI pollock funded from the non-pollock fisheries into a non-specified reserve available to the non-pollock fisheries.

Response: The proposed BS pollock initial TAC was 1,327,005 mt (69 FR 70974, December 8, 2004), and the final initial TAC recommended by the Council is 1,330,650 mt. The Council has recommended a final initial pollock TAC 3,645 mt higher than the proposed initial TAC for BS pollock. NMFS has not yet published final initial TACs for the groundfish fisheries, but is aware that the sum of the harvest levels must not exceed the 2 million mt optimum yield maximum.

Each year, NMFS considers the Council's harvest recommendations for the groundfish fisheries. The Council's policy for funding the AI directed pollock fishery from the BS pollock fishery is specified in Amendment 82 to the FMP. The Council recommended that all unharvested AI pollock be reallocated to the BS pollock fishery because the intent is to restore the pollock harvest to the BS pollock fishery. Thus, the Council has recommended that unused AI pollock be reallocated to the BS pollock fishery rather than attempting complicated proportional reallocations. NMFS approved this policy as a provision of Amendment 82.

Detailed descriptions of the regulatory amendments required to implement the management provisions for the AI directed pollock fishery pursuant to Amendment 82 and Pub. L. 108-199 were published in the proposed rule for this action (69 FR 70589, December 7, 2004). Several changes are made in the final rule from the proposed rule, as detailed below.

Proposed § 679.4(m)(2) specifies the information that the Aleut Corporation would have been required to submit to NMFS in the application for approval of each participant in the AI directed pollock fishery. For stationary floating processors and shoreside processors this information would have included an approved CMCP (proposed § 679.4(m)(2)(iii)). NMFS has determined that submission of the CMCP at the time of application for participant approval is an unwarranted burden, and therefore, does not implement proposed § 679.4(m)(2)(iii) in this final rule. However, submission and approval of a CMCP is nevertheless required as proposed before a shoreside processor or a stationary floating processor may lawfully process pollock harvested in the AI directed pollock fishery (see §§ 679.7(l)(3)(iii) and 679.28(g)(2)).

Based on comments received, three changes are made to the proposed provisions for the management of the incidental catch allowance (ICA) in paragraph (a)(5)(iii) which establishes the AI pollock allocations and seasonal apportionments. See the responses to Comments 7, 8 and 9 above for details.

The proposed rule included a separate Chinook salmon prohibited species catch (PSC) limit of 700 fish for the AI directed pollock fishery. If the amount of Chinook salmon bycatch in the AI subarea were to exceed the 700 fish limit, only the AI portion of the Chinook salmon savings areas would be closed (area 1 on Figure 8 to 50 CFR part 679).

Under paragraph (e)(1)(i), 7.5 percent of each PSC amount is allocated to the CDQ fisheries. PSC restrictions for the CDQ program are based on the portions of the PSC amounts allocated to the CDQ program. Because the CDQ sector will be harvesting pollock in the AI, a portion of the salmon PSC limit must be allocated to the CDQ sector to ensure that CDQ participants also will be subject to the salmon area closure based on the PSC limit established for the CDQ sector. Therefore, NMFS revises paragraph (e)(1)(i) accordingly.

The citation for the Department of Transportation regulations that implement provisions of the AFA is corrected in the final rule to 46 CFR part 356.

The proposed rule revised paragraph (c) to remove references to AI pollock for AFA inshore processors' requirements for catch weighing, observer coverage, and prior notification. AI pollock likely will not be processed by any inshore facilities in 2005. The only inshore facilities that may be able to process AI pollock are AFA qualified facilities in Dutch Harbor. These facilities already meet AFA catch weighing and observer requirements for all pollock received and can easily provide the same for any AI pollock that may be delivered. To ensure consistency in the monitoring of pollock landed at AFA facilities, NMFS has determined that maintaining the same level of catch weighing and observer requirements for all pollock delivered at AFA inshore processors is necessary. Thus, NMFS has determined that the revisions to this section are not necessary and has removed them in the final rule.

NMFS is further considering catch monitoring and observer provisions for non-AFA qualified shoreside and stationary floating processors that may process AI pollock and intends to consider additional rulemaking in the future. The level of monitoring and verification for a quota-based program such as the AI directed pollock fishery should be similar to that implemented for AFA fisheries to enhance accurate quota management. Current provisions in this final rule do not provide for all AI pollock delivered to shoreside and stationary floating processors to be observed during catch weighing and sorting. Because neither non-AFA shoreside processors nor stationary floating processors are likely to be used for the AI directed pollock fishery in the immediate future, NMFS has determined that this is not a significant monitoring or enforcement concern at this time.

The Regional Administrator determined that Amendment 82 is necessary for the conservation and management of the BSAI groundfish fishery and that it is consistent with the Magnuson-Stevens Act and other applicable laws.

The AI directed pollock fishery will remain closed until the effective date of the final rule. The Council made final recommendations for this program in October 2004, and NMFS commenced the rulemaking process as soon as possible after receiving the recommendations. Pollock harvested in the early part of the year usually bears roe which is one of the most valuable components of the total pollock harvest in the year. In 2005, the pollock roe is maturing at a faster rate than anticipated and is likely to reach peak maturity at the end of February.

All of the participants in the AI directed pollock fishery are AFA vessels which also are used in the Bering Sea pollock fishery. These participants have completed negotiating their contracts for Bering Sea and AI pollock harvest for the year. Because pollock is more valuable during the roe producing season Bering Sea pollock fishery, a short window of opportunity exists in late February and early March for the Aleut Corporation to harvest AI pollock. Industry representatives have stated that they are ready to participate in the AI directed pollock fishery on February 28, 2005. They will be moving their vessels from the Bering Sea to the AI in preparation for the AI directed pollock fishery. A delay in the effectiveness of the rule would result in severe economic impact on the AI directed pollock fishery participants. The participants would be unable to harvest AI pollock during the roe season, would lose money in moving the vessels to the AI without the opportunity to harvest in the AI at the time period that they are available, and the lost revenue cannot be recovered by pollock harvested at a later time in the year due to less valuable fish being available.

The potential loss in revenue would prevent the Aleut Corporation from meeting the statutory goal of economic development in Adak, Alaska for this year. Moreover, the Aleut Corporation has worked closely with NMFS and the Council in the development of this rule and is aware of its general requirements and is prepared to meet them. In addition, the directed pollock fishery in the AI has been closed since 1999; consequently, no current participants exist who might require time to conform ongoing fishing activities to the requirements of this final rule. For these reasons, the Assistant Administrator for Fisheries finds good cause to waive the 30-day delay in effectiveness for the final rule and makes its provisions effective upon filing with the Office of the Federal Register.

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

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared.

This final rule contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA) and which have been approved on February 18, 2005, by Office of Management and Budget (OMB) under a request for emergency clearance. Public reporting burden per response for these requirements are listed by OMB control number.

Federal fisheries permit application, 21 minutes; Federal processor permit application, 21 minutes.

Weekly production reports, 17 minutes; check-in/check-out report, shoreside processor, 8 minutes; check-in/check-out report, mothership or catcher/processor, 7 minutes; daily production report, 11 minutes; buying station report, 23 minutes; catcher vessel trawl gear daily fishing logbook (DFL), 18 minutes; catcher vessel longline or pot gear DFL, 28 minutes; shoreside processor daily cumulative production logbook (DCPL), 31 minutes; mothership DCPL, 31 minutes; catcher/processor longline and pot gear DCPL, 41 minutes; and catcher/processor trawl gear DCPL, 30 minutes.

Inshore processor catch monitoring and control plan, 40 hours.

LLP permit, 1 hour.

AFA inshore processor permit application, 2 hours; AFA catcher vessel permit application, 2 hours; AFA mothership, 2 hours; and AFA catcher/processor permit application, 0 hours.

Catcher vessel cooperative pollock catch report, 5 minutes; shoreside processor electronic logbook report, 35 minutes.

List of participating harvestors and processors in the AI directed pollock fishery, 32 hours; copy of NMFS' approval to participants, 4 hours; and appeals of NMFS' disapproval of participating harvestors or processors, 4 hours. This information collection has been approved for six months through an emergency request, and will be re-submitted for approval for a full three-year period.

Response times include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection-of-information. Send comments regarding these burden estimates or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (see ADDRESSES ).

Comments are invited on: (a) whether the proposed collection-of-information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection-of-information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection-of-information on respondents, including through the use of automated collection techniques or other forms of information technology.

Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of 0648-0513; they also will become a matter of public record.

Notwithstanding any other provision of law, no person is required to respond to, and no person shall be subject to a penalty for failure to comply with, a collection-of-information subject to the requirements of the PRA, unless that collection-of-information displays a currently valid OMB Control Number.

Consultation under the Endangered Species Act was concluded for Amendment 82 on October 22, 2004. As a result of the consultation, the Regional Administrator determined that fishing activities under this rule are not likely to adversely affect endangered or threatened species or their critical habitat. Pollock is an important prey species for the endangered and threatened Steller sea lion populations. The Steller sea lion protection measures evaluated in the 2000 and 2001 Biological Opinions (see ADDRESSES ) were considered in the development of the management provisions of Amendment 82. The protection measures for Steller sea lions include spatial and temporal dispersion of pollock harvest. The pollock fishing closure areas in the AI would remain unchanged under Amendment 82 to ensure spatial dispersion of fishing effort. To temporally disperse harvest of prey species, the Steller sea lion protection measures apportion 40 percent of pollock harvest in the BSAI to the A season and 60 percent to the B season. Amendment 82 would continue to temporally disperse pollock harvest with no more than 40 percent of the ABC permitted to be harvested in the A season. The total harvest of pollock in the BS, including any reallocation of unharvested AI pollock, also will remain well below the ABC so that overall harvest would be in proportion to biomass and less likely to compete with Steller sea lions for prey.

Alaska, Fisheries, Recordkeeping and reporting requirements.

Under section 817(h), a variable contract based on a segregated asset account is not treated as an annuity, endowment, or life insurance contract unless the segregated asset account is adequately diversified. For purposes of testing diversification, section 817(h)(4) and § 1.817-5(f) of the regulations provide a look-through rule for assets held through certain investment companies, partnerships, or trusts. Section 1.817-5(f)(2)(i) provides that look-through treatment is available with respect to any investment company, partnership, or trust only if all the beneficial interests in the investment company, partnership, or trust are held by one or more segregated asset accounts of one or more insurance companies, and public access to such investment company, partnership, or trust is available exclusively (except as otherwise permitted by section 1.817-5(f)(3)) through the purchase of a variable contract. Under § 1.817-5(f)(2)(ii), the look-through rule applies to a partnership interest that is not registered under a Federal or state law regulating the offering or sale of securities. Unlike § 1.817-5(f)(2)(i), satisfaction of the nonregistered partnership look-through rule of § 1.817-5(f)(2)(ii) is not explicitly conditioned on limiting the ownership of interests in the partnership to certain specified holders.

On July 30, 2003, the Treasury Department and the IRS published a notice of proposed rulemaking (REG-163974-02) under section 817 in the Federal Register (68 FR 44689). The proposed regulations would remove the rule that applies specifically to nonregistered partnerships for purposes of testing diversification. The proposed regulations also would remove an example that illustrates that rule.

The application of § 1.817-5(f)(2)(i) to interests in nonregistered partnerships will be unchanged by the removal of § 1.817-5(f)(2)(ii). Thus, look-through treatment will be available for interests in a nonregistered partnership if all the beneficial interests in the partnership are held by one or more segregated asset accounts of one or more insurance companies and public access to the partnership is available exclusively (except as otherwise permitted by § 1.817-5(f)(3)) through the purchase of a variable contract.

Written comments were received in response to the notice of proposed rulemaking. A public hearing on the notice of proposed rulemaking was held on April 1, 2004. After consideration of all the comments and the hearing testimony, the proposed regulations are adopted as amended by this Treasury decision.

In addition to requesting comments on the clarity of the proposed rule and how the rule could be made easier to understand, the Treasury Department and the IRS specifically requested comments on: (1) Whether revocation of § 1.817-5(f)(2)(ii) necessitates other changes to the look-through rules of § 1.817-5(f), in particular whether the list of holders permitted by § 1.817-5(f)(3) should be amended or expanded, and whether a non-pro-rata distribution of the investment returns of a segregated asset account should be permitted to take account of certain bonus payments to investment managers commonly referred to as incentive payments, (2) whether § 1.817-5 should be updated to take account of changes to variable contracts since the final regulations were published in 1986, and (3) whether regulations are needed to address when a holder of a variable contract will be treated as the owner of assets held in a segregated asset account and, therefore, required to include earnings on those assets in income.

Two comments on the proposed regulation concerned the definition of “security” in § 1.817-5(h)(6). Under § 1.817-5(b)(1)(ii)(A), all securities of the same issuer are treated as one investment for the purposes of satisfying the diversification requirements. Section 1.817-5(h)(6) provides that the term security includes “a cash item and any partnership interest registered under a Federal or state law regulating the offering or sale of securities,” but does not include “ any other partnership interest.” The commentators stated that the definition of “security” that applies to § 1.817-5 should be amended to include an interest in a non-registered partnership. The Treasury Department and the IRS agree that, in light of the revocation of former § 1.817-5(f)(2)(ii), the definition of security should be modified to remove the distinction between registered and nonregistered partnership interests. The final regulations reflect this change.

A number of commentators also suggested that the regulation should be clarified by adding to or otherwise revising the examples contained in § 1.817-5(g). In response to these comments, the final regulations revise § 1.817-5(g) Example 1 to remove the reference to partnership P as a publicly registered partnership. The Treasury Department and the IRS believe that, with this change, the examples contained in § 1.817-5(g) adequately explain the application of § 1.817-5 to partnership interests. Any questions concerning the application of § 1.817-5 to more specific factual scenarios may be addressed by the letter ruling process or by subsequent published guidance.

Two commentators urged that existing arrangements either should be grandfathered in some fashion or should be given additional time to be brought into compliance with the final regulations. The notice of proposed rulemaking provided that arrangements in existence on the effective date of the revocation of § 1.817-5(f)(2)(ii) will be considered to be adequately diversified if: (i) Those arrangements were adequately diversified within the meaning of section 817(h) prior to the revocation of § 1.817-5(f)(2)(ii), and (ii) by the end of the last day of the second calendar quarter ending after the effective date of the regulation, the arrangements are brought into compliance with the final regulations. The Treasury Department and the IRS do not believe it is appropriate to grandfather existing arrangements indefinitely. In response to these comments, however, the transition period for existing arrangements to be brought into compliance with the regulations is two calendar quarters longer than the period provided in the proposed regulations.

Finally, one commentator questioned the authority of the Treasury Department and the IRS to enact this final regulation because “the only substantive impetus for the regulation is a general statement in the legislative history.” Congress enacted the diversification requirements of section 817(h) to “discourage the use of tax-preferred variable annuity and variable life insurance primarily as investment vehicles,” H.R. Conf. Rep. No. 98-861, at 1055 (1984), and granted the Secretary broad regulatory authority to develop rules to carry out this intent. The Treasury Department and the IRS have determined that this final regulation and the rest of the regulations contained in § 1.817-5 were prescribed within the delegation of authority provided by Congress.

Many comments concerned the list of permitted investors under § 1.817-5(f)(3). Notwithstanding the limitations on public access to an investment company, partnership, or trust that is subject to look-through treatment under § 1.817-5(f), § 1.817-5(f)(3) permits look-through treatment if the beneficial interests of the investment company, partnership, or trust are held by certain other “permitted investors,” including the general account of a life insurance company (if certain requirements are met), the manager or a corporation related to the manager (if certain requirements are met), or the trustee of a qualified plan. Commentators suggested that the list of permitted investors be expanded to include, for example, qualified tuition programs described in section 529; segregated asset accounts of foreign insurance companies; foreign pension plans; persons or entities related to the manager of an investment company, partnership, or trust in a manner specified in section 707(b); certain investment professionals operating as service providers; or persons who receive interests in a partnership as a result of inadvertent transfers, such as by bankruptcy or death of the permitted investor. The sole speaker at the public hearing on the notice of proposed rulemaking testified that the list of investors permitted by § 1.817-5(f)(3) should be expanded to include “floor specialists” as that term is defined in section 1236(d)(2).

Other comments suggested guidance on non-pro-rata manager compensation. In order for the manager (or a corporation related in a manner specified in section 267(b) to the manager) of an investment company, partnership, or trust, to be a permitted investor under § 1.817-5(f)(3)(ii), (1) its interest must be held in connection with the creation or management of the investment company, partnership, or trust; (2) the return on such interest must be computed in the same manner as the return on an interest held by a segregated asset account is computed (determined without regard to expenses attributable to variable contracts); and (3) there must be no intent to sell such interest to the public. A number of commentators stated that the requirement that the return on a manager's interest be computed in the same manner as the return on a segregated asset account's interest—essentially a pro-rata distribution requirement—is inconsistent with prevailing market practices concerning manager bonuses, discourages the creation of insurance dedicated funds, and is not necessary to prevent abuse of the look-through rules contained in § 1.817-5(f).

Some comments stated there is a need to clarify the consequences to a variable contract and variable contract holder when the contract's segregated asset account contains an asset in which beneficial interests are held by investors (such as qualified plans) that qualified as permitted investors in § 1.817-5(f)(2) or (3) at the time of initial investment, but subsequently lose their status. Similarly, one commentator urged that if an insurance company has a reasonable basis to believe that an investment company, partnership, or trust satisfies the requirements of § 1.817-5(f)(2), a variable contract of that insurance company should be permitted to look-through that entity for purposes of testing a segregated asset account on which that contract is based, even if the investment company, partnership, or trust has investors not described in § 1.817-5(f)(2) or (3). The commentator suggested that this standard would be consistent with the standard of determination often used in the Federal securities laws.

Other comments included a request for clarification of the treatment of fund-of-funds and master-feeder arrangements for purposes of testing diversification; the desirability of an updated correction procedure for failure to satisfy the diversification requirements of section 817(h) and § 1.817-5; guidance concerning the use of independent investment advisors; and extension of the special diversification rules for United States Treasury securities under section 817(h)(3) and § 1.817-5(b)(3) to variable annuity contracts. (The latter comment presumably would require a change to section 817(h)(3), as well as to the regulations.)

Although the comments on § 1.817-5 generally are not adopted in this Treasury decision, the Treasury Department and IRS will consider these comments in the event of future published guidance. For example, Rev. Rul. 2005-7 (2005-6 I.R.B.) ( see § 601.601 (d)(2)(ii)( b ) of this chapter) provides guidance on the application of the diversification look-through rule to tiered investment companies.

Finally, some comments concerned the need for additional guidance addressing circumstances under which the holder of a variable contract will be treated as the owner of assets held by a segregated asset account by virtue of the control the contract holder has over those assets. Under Rev. Rul. 81-225, 1981-2 C.B. 12 ( see § 601.601(d)(2)(ii)(b) of this chapter), the owner of a variable annuity contract funded by publicly available mutual fund shares is treated as the owner of those shares. Rev. Rul. 2003-92, 2003-33 I.R.B. 350 ( see § 601.601(d)(2)(ii)( b ) of this chapter), clarified and amplified Rev. Rul. 81-225 by applying the same rule to variable life insurance contracts, and by treating as publicly available a nonregistered partnership, interests in which are sold only to qualified purchasers that are accredited investors or to no more than one hundred accredited investors. See also Rev. Rul. 2003-91, 2003-33 I.R.B. 347; Rev. Rul. 82-54, 1982-1 C.B. 11; Rev. Rul. 80-274, 1980-2 C.B. 27; Rev. Rul. 77-85, 1977-1 C.B. 12.; Christoffersen v. U.S. , 749 F.2d 513 (8th Cir. 1984), rev'g 578 F. Supp. 398 (N.D. Iowa 1984). See § 601.601(d)(2)(ii)( b ) of this chapter.

One commentator urged that Rev. Rul. 2003-92 should not be applied retroactively to treat certain investors as the “general public” as that term is used in Rev. Rul. 81-225. Specifically, the commentator requested relief for investments in real estate partnerships, interests in which are held directly by (1) organizations described in section 501(c)(3), and (2) such partnerships' investment managers, if those managers are not described in § 1.817-5(f)(3)(ii) because of bonus payment arrangements. The commentator believed such relief is warranted because of uncertainty concerning the meaning of “general public” as that term is used in Rev. Rul. 81-225. Several other commentators suggested that regulations under section 817 should clarify that the permitted investors under § 1.817-5(f)(3) do not constitute the “general” public as that term is used in Rev. Rul. 2003-92 and Rev. Rul. 81-225. According to these commentators, it would be anomalous for ownership by a permitted investor under § 1.817-5(f)(3) to result in a variable contract holder being treated as the owner of an investment company, partnership, or trust, when the look-through rule itself appears to endorse ownership by that same investor for purposes of testing diversification. Still another commentator noted that when determining whether a contract holder is treated as the owner of segregated account assets, communications between investment advisors or officers and variable contract holders should be permitted if the communications are consistent with Federal securities and commodities laws.

One commentator suggested that the preamble to this Treasury decision should confirm the intended scope of Rev. Proc. 99-44, 1999-2 C.B. 598. Under Rev. Proc. 99-44, a contract is treated as an annuity contract described in sections 403(a), 403(b), or 408(b), notwithstanding that contract premiums are invested at the direction of the contract holder in publicly available securities, so long as certain requirements are met. Those requirements include a limitation that no additional Federal tax liability would have been incurred if the employer of the contract holder had instead paid amounts into a custodial account in an arrangement that satisfied the requirements of section 403(b)(7)(A) or no additional Federal tax liability would have been incurred if the consideration for the contract had instead been held as part of a trust that would satisfy the requirements of section 408(a), as applicable. The commentator urged that the preamble to this Treasury decision clarify that the “no additional Federal tax liability” limitation was intended to apply only to tax on unrelated business income. Finally, one commentator noted that, given the inherent factual nature of the determination whether a contract holder is treated as the owner of segregated account assets, the issue is better addressed by letter ruling or revenue ruling, rather than by regulations.

Although the comments on investor control are not adopted in this Treasury decision, they are responsive to the request for comments in the July 30, 2003, notice of proposed rulemaking and will receive careful attention in the event of further guidance on investor control.

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

The principal author of these regulations is James Polfer, Office of the Associate Chief Counsel (Financial Institutions and Products), Office of Chief Counsel, Internal Revenue Service. However, personnel from other offices of the Treasury Department and the IRS participated in their development.

1. The Regional Office has established an official public rulemaking file available for inspection at the Regional Office. EPA has established an official public rulemaking file for this action under R01-OAR-2004-ME-0002. The official public file consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public rulemaking file does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public rulemaking file is the collection of materials that is available for public viewing at the Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, Suite 1100, Boston, MA. EPA requests that if at all possible, you contact the contact listed in the For Further Information Contact section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30 excluding Federal holidays.

2. Copies of the State submittal and EPA's technical support document are also available for public inspection during normal business hours, by appointment at the State Air Agency. Department of Environmental Protection, First Floor of the Tyson Building, Augusta Mental Health Institute Complex, Augusta, ME 04333-0017; Division of Air Quality Control.

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

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

You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate rulemaking identification number by including the text “Public comment on proposed rulemaking R01-OAR-2004-ME-0002” in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.

1. Electronically. If you submit an electronic comment as prescribed below, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment. Also include this contact information on the outside of any disk or CD-ROM you submit, and in any cover letter accompanying the disk or CD-ROM. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

i. E-mail. Comments may be sent by electronic mail (e-mail) to edmondson.lucy@epa.gov , please include the text “Public comment on proposed rulemaking R01-OAR-2004-ME-0002” in the subject line. EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly without going through Regulations.gov, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket.

ii. Regulations.gov. Your use of Regulations.gov is an alternative method of submitting electronic comments to EPA. Go directly to Regulations.gov at http://www.regulations.gov , then click on the button “TO SEARCH FOR REGULATIONS CLICK HERE”, and select Environmental Protection Agency as Agency name to search on. The list of current EPA actions available for comment will be listed. Please follow the online instructions for submitting comments. The system is an “anonymous access” system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment.

iii. Disk or CD-ROM. You may submit comments on a disk or CD-ROM that you mail to the mailing address identified in Section 2, directly below. These electronic submissions will be accepted in WordPerfect, Word or ASCII file format. Avoid the use of special characters and any form of encryption.

2. By Mail. Send your comments to: Lucy Edmondson, acting Unit Manager, Air Permits, Toxics and Indoor Program Unit, Office of Ecosystem Protection (mail code CAP), U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, Suite 1100, Boston, MA 02114-2023. Please include the text “Public comment on proposed rulemaking R01-OAR-2004-ME-0002” in the subject line on the first page of your comment

3. By Hand Delivery or Courier. Deliver your comments to: Lucy Edmondson, acting Unit Manager, Air Permits, Toxics and Indoor Program Unit, Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, Suite 11th floor, (CAP), Boston, MA 02114-2023. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30 excluding Federal holidays.

Do not submit information that you consider to be CBI electronically to EPA. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD-ROM, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the official public regional rulemaking file. If you submit the copy that does not contain CBI on disk or CD-ROM, mark the outside of the disk or CD-ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public file and available for public inspection without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified in the FOR FURTHER INFORMATION CONTACT section.

Section 111(d) of the CAA allows EPA to approve state plans to regulate emissions from existing sources of “designated pollutants,” i.e. , pollutants not listed as criteria pollutants under CAA section 108(a) nor as hazardous air pollutants (“HAPs”) under section 112(b)(1), but to which a standard of performance for new sources applies under section 111. TRS is a designated pollutant. EPA does not regulate emissions of TRS from existing sources.

Maine DEP originally submitted chapter 124, “Total Reduced Sulfur Control From Kraft Pulp Mills” (“chapter 124” or “TRS Rule”) to EPA on February 15, 1990. EPA approved Maine's TRS Rule under CAA section 111(d) on September 19, 1990 (55 FR 38545). On October 4, 1994, EPA approved a revision to Chapter 124 (59 FR 50506). The revision extended the compliance date for brownstock washer systems from January 1, 1994 to September 30, 1998. Maine extended the compliance date to give existing mills more time to comply with the National Emission Standards for Hazardous Air Pollutants from the Pulp and Paper Industry (Pulp and Paper MACT), which was in preparation at the time.

EPA published the Pulp and Paper MACT on April 15, 1998 (63 FR 18617, codified at 40 CFR Part 63 Subpart S). Although TRS compounds are not HAPs and therefore not subject to the Pulp and Paper MACT, Maine subsequently submitted a request to revise Chapter 124 to apply certain control provisions from the MACT standard to TRS emissions. EPA approved this revision to the 111(d) plan on May 1, 2003 (68 FR 23209). The compliance date for brownstock washers in the revised TRS Rule was April 17, 2005, which is one year earlier than the compliance date for kraft pulping systems in the Pulp and Paper MACT. See 40 CFR 63.440(d)(1).

Maine's TRS Rule governs emissions of TRS from existing kraft pulp mills. New mills are subject to the New Source Performance Standards (NSPS) in 40 CFR Part 60 Subpart BB.

Maine is requesting one change to Chapter 124. The previous version called for existing kraft pulp mills to bring their brown stock washers into compliance by April 17, 2005. This is one year before such mills must be in compliance with the HAP emission standards in 40 CFR 63 Subpart S. Maine has requested a 111(d) plan revision to extend the compliance date for brownstock washers in Chapter 124 to April 17, 2007. EPA is approving this revision.

The term “total reduced sulfur” refers to a mixture of four compounds: hydrogen sulfide, methyl mercaptan, dimethyl sulfide, and dimethyl disulfide. These compounds are emitted when sulfur-based chemicals are used to dissolve wood chips as part of the paper making process. TRS compounds have a strong, unpleasant odor. In concentrations found near paper mills, they can cause health problems such as sore throats and nausea.

Brownstock (sometimes called brown stock) washer systems are part of the kraft pulping system. After pulp has been made from dissolved wood chips, brownstock washers rinse the pulp and remove excess chemicals from it. If emissions from these systems are not controlled, they can release TRS into the atmosphere.

On April 26, 2004, Maine revised Chapter 124 to extend the compliance date for brownstock washer controls from April 17, 2005 to April 17, 2007. On June 23, 2004, Maine submitted a request to revise its CAA 111(d) plan accordingly. EPA is approving this revision to Maine's 111(d) plan.

Maine last revised its 111(d) plan on February 17, 2000. At the time it appeared that all of the affected mills would be able to bring their brownstock washers into compliance with Chapter 124 by April 17, 2005. This has been more difficult than expected and three mills in Maine have requested extensions to April 2007.

The compliance date for kraft pulping systems in the Pulp and Paper MACT is April 17, 2006. 40 CFR 63.440(d)(1). EPA or a state may, however, allow an extension of up to 1 year from a MACT compliance date if a source needs additional time to install controls. 40 CFR 63.6(i)(4). Maine has determined that these mills need the additional time to obtain and install the best equipment for controlling TRS emissions.

Maine certified that a public hearing on the revision to Chapter 124 was held in Augusta, ME on January 15, 2004 in accordance with the requirements of 40 CFR 60.23(d).

The change Maine wishes to make is consistent with Section 111(d) of the Clean Air Act and with the MACT compliance date for the control of HAPs. EPA has determined that this rule will benefit air quality by providing existing kraft paper mills with additional time to properly install pollution control equipment.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This action will be effective May 2, 2005 without further notice unless EPA receives adverse comments by March 31, 2005.

If EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on May 2, 2005 and no further action will be taken on the proposed rule.

EPA is approving the revised 111(d) plan controlling TRS emissions from existing kraft pulp mills as submitted by ME DEP on June 23, 2004. The revised plan, which consists of the revised regulation entitled “Chapter 124: Total Reduced Sulfur from Kraft Pulp Mills,” will affect three existing kraft pulp mills in the State of Maine.

EPA is publishing this action without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should relevant adverse comments be filed. This rule will be effective May 2, 2005 without further notice unless the Agency receives relevant adverse comments by March 31, 2005.

If EPA receives such comments, then EPA will publish a notice withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on the proposed rule. Only parties interested in commenting on the proposed rule should do so at this time. If no such comments are received, the public is advised that this rule will be effective on May 2, 2005 and no further action will be taken on the proposed rule. 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 (P.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), because it 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 111(d) plan revisions, 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 111(d) plan revision, to use VCS in place of a 111(d) plan revision 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. 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 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 May 2, 2005. Interested parties should comment in response to the proposed rule rather than petition for judicial review, unless the objection arises after the comment period allowed for in the proposal. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

This is a summary of the Commission's document, CG Docket No. 02-278, DA 05-342, released February 9, 2005. On July 3, 2003, the Commission released a Report and Order (2003 TCPA Order) , 68 FR 44144, July 25, 2003. In the 2003 TCPA Order , the Commission stated its belief that any state regulation of interstate telemarketing calls that differed from our rules under section 227 almost certainly would conflict with and frustrate the federal scheme and would be preempted. The Commission will consider any alleged conflicts between state and federal requirements and the need for preemption on a case-by-case basis. Accordingly, any party that believes a state law is inconsistent with section 227 or our rules may seek a Declaratory Ruling from the Commission. When filing comments, please reference CG Docket No. 02-278. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings , 63 FR 24121, May 1, 1998. Comments filed through the ECFS can be sent as an electronic file via the Internet to http://www.fcc.gov/e-file/ecfs.html . Generally, only one copy of an electronic submission must be filed. In completing the transmittal screen, commenters should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions for e-mail comments, commenters should send e-mail to ecfs@fcc.gov , and should include the following words in the body of the message, “get form <your e-mail address>.” A sample form and directions will be sent in reply.

Parties who choose to file by paper must send an original and four (4) copies of each filing. Filings can be sent by hand or messenger delivery, by electronic media, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). The Commission's contractor, Natek, Inc., will receive hand-delivered or messenger-delivered paper filings or electronic media for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building. Commercial and electronic media sent by overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service first-class mail, Express Mail, and Priority Mail should be addressed to 445 12th Street, SW., Washington, DC 20554. All filings must be addressed to the Commission's Secretary, Marlene H. Dortch, Office of the Secretary, Federal Communications Commission, 445 12th Street, SW., Room TW-B204, Washington, DC 20554.

This proceeding shall be treated as a “permit but disclose” proceeding in accordance with the Commission's ex parte rules, 47 CFR 1.1200. Persons making oral ex parte presentations are reminded that memoranda summarizing the presentations must contain summaries of the substances of the presentations and not merely a listing of the subjects discussed. More than a one or two sentence description of the views and arguments presented is generally required. See 47 CFR 1.1206(b). Other rules pertaining to oral and written ex parte presentations in permit-but-disclosed proceedings are set forth in section 1.1206(b) of the Commission's rules, 47 CFR 1.1206(b).

The full text of this document and copies of any subsequently filed documents in this matter will be available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554, (202) 418-0270. This document may be purchased from the Commission's duplicating contractor, Best Copy and Printing (BCPI), Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. Customers may contact BCPI, Inc. at their Web site: http://www.bcpiweb.com or by calling 1-800-378-3160. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format) send an e-mail to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice) or (202) 418-0432 (TTY). This document can also be downloaded in Word or Portable Document Format (PDF) at http://www.fcc.gov/cgb/policy .

On February 1, 2005, TSA Stores, Inc. (TSA) filed a Petition for Declaratory Ruling asking the Commission to preempt a provision of the Florida Statutes as applied to interstate telephone calls. Specifically, TSA requests that the Commission preempt section 501.059 of the Florida Statutes as applied to interstate telephone calls made to residential lines using a prerecorded voice, where the call is made to a person with whom the caller has an established business relationship. TSA indicates that section 501.059 of the Florida Statutes makes it unlawful for a telephone solicitor to make a telephone sales call to a Florida resident if such call involves an automated system for the selection or dialing of telephone numbers or the playing of a recorded message when a connection is completed to a called number. TSA asserts that section 501.059, to the extent that it restricts or prohibits the use of prerecorded messages to persons with whom the caller has an established business relationship, is inconsistent with the Commission's rules, when applied to interstate calls. TSA indicates that this provision conflicts with section 64.1200(a)(2) of the Commission's rules, 47 CFR 64.1200(a)(2), which, according to TSA, permits the use of an artificial or prerecorded voice to deliver a message without the express prior consent of the called party if the call is made to a person with whom the caller has an established business relationship. Accordingly, TSA requests that the Commission issue a declaration preempting section 501.059(7)(a) of the Florida Statutes.

The final regulation that is subject of this correction amended section 73.673 by inadvertently removing and reserving paragraph (b). This correction revises the amendment published on January 3, 2005.

As published, the final regulations contain errors which may prove to be misleading and need to be clarified.

You can get an electronic copy using the Internet by—

(1) Searching the Department of Transportation's (DOT's) electronic Docket Management System (DMS) Web page ( http://dms.dot.gov/search );

(2) Accessing the Government Printing Office's Web page at http://www.gpoaccess.gov/fr/index.html ; or

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

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

TSA is an agency in the Department of Homeland Security (DHS), operating under the direction of the Assistant Secretary for Homeland Security (Transportation Security Administration). TSA is responsible for security in all modes of transportation, including aviation. See 49 U.S.C. 114(d). Under TSA's regulation on acceptance and screening of individuals and accessible property, 49 CFR 1540.111, an individual (other than a law enforcement or other authorized individual)—

On February 14, 2003, TSA published an interpretive rule that provided guidance to the public on the types of property TSA considers to be weapons, explosives, and incendiaries prohibited on an individual's person or accessible property, items permitted on an individual's person or accessible property, and items prohibited in checked baggage (68 FR 7444). On March 3, 2003, TSA subsequently published technical corrections to the interpretive rule at 68 FR 9902.

On December 17, 2004, the President signed into law the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA) (Pub. L. 108-458). Section 4025 of IRTPA requires TSA, no later than 60 days after enactment, to add butane lighters to the prohibited items list and to make any other modifications that TSA considers appropriate. TSA has reviewed the prohibited items list and is now making a change to the list. This document amends TSA's interpretive rule to reflect this change, which is discussed below.

Pursuant to the February 14, 2003 interpretive rule, TSA limited the types and quantities of lighters that persons are permitted to bring on board the cabin of an aircraft to reflect limits in DOT's regulations ( see, e.g. , 49 CFR 175.10(a)(10)) and related interpretations governing the transport of hazardous materials on aircraft. Specifically, TSA allowed persons to board an aircraft with no more than two lighters per person, as long as the lighters were fueled with either liquefied gas (Bic®- or Colibri®-type) or absorbed liquid (Zippo®-type). Under the DOT hazardous materials regulation all other types of lighters are prohibited in the aircraft cabin. See 49 CFR 175.10(a)(10). Further, all lighters, including those fueled with liquefied gas or absorbed liquid, are prohibited from carriage in checked baggage.

Most liquefied gas lighters, which in the past have been permitted in the aircraft cabin, are butane lighters. Thus, the effect of Section 4025 of IRTPA is to require the prohibition of most liquefied gas lighters from the cabin of an aircraft. In light of this change, TSA has reconsidered whether all lighters should be prohibited from the cabin of an aircraft.

It is very difficult, and often impossible, for TSA security screeners to distinguish between lighters that are fueled with butane and lighters that are fueled by some other flammable gas or liquid. Consequently, TSA is modifying the prohibited items list to include all lighters, consistent with the provision in section 4025 that directs TSA to make other modifications to the prohibited items list that it deems appropriate. As a result, beginning on the effective date of this rule, TSA is prohibiting passengers from carrying any type of lighter on their person or in accessible property once screening has begun, when in airport sterile areas, or onboard an aircraft for which screening is conducted. In addition, lighters remain prohibited from carriage in passengers' checked baggage under DOT's hazardous materials regulation.

Separately, TSA is considering adding all matches to the prohibited items list. Consistent with DOT's regulation governing the transport of hazardous materials, TSA presently limits the type and quantity of matches passengers may bring on board an aircraft. Specifically, passengers now may carry up to four books of strike-on-cover matches on their person or in accessible property. Under the DOT regulation, all matches are prohibited from carriage in checked baggage. Before modifying the interpretive rule with respect to matches carried on one's person or in accessible property, TSA will publish a notice in the Federal Register requesting public comment on such a change. If TSA determines that prohibiting the carriage of matches on one's person or in accessible property is warranted, the agency will publish a notice in the Federal Register effecting a further modification to its interpretive rule.

This interpretive rule is effective on March 1, 2005. TSA understands, however, that the addition of lighters to the prohibited items list constitutes a significant change in policy and will exercise its inherent enforcement discretion accordingly during the first 45 days after the effective date.

For purposes of reference to the prohibited items list published in the Federal Register on February 14, 2003, and corrected on March 3, 2003, TSA makes the following changes:

1. Section I.E(9) is added to read “All lighters.”

2. Section II.A(9) is amended to read “RESERVED”.

The following is the list of prohibited items and permitted items reprinted in its entirety, with the changes inserted.

Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866, Regulatory Planning and Review (58 FR 51735, October 4, 1993), directs each Federal agency to propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq. , as amended by the Small Business Regulatory Enforcement Fairness Act of 1996) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Office of Management and Budget directs agencies to assess the effect of regulatory changes on international trade. Fourth, the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation.)

This rule explains to the public, airport personnel, screeners, and airlines how TSA interprets certain terms used in an existing rule, 49 CFR 1540.111. This interpretative rule is not considered an economically significant regulatory action for purposes of Executive Order 12866. However, there has been significant public interest in aviation security issues since the terrorist attacks of September 11, 2001. Therefore, this rule is significant for purposes of the Executive Order and has been reviewed by the Office of Management and Budget (OMB).

This rule modifies the prohibited items list to all lighters consistent with Section 4025 of IRTPA. As a result, passengers will no longer be able to carry any lighters onboard an aircraft for which screening is conducted or into airport sterile areas. TSA notes that this ban may cause inconvenience to some passengers. Passengers and other persons carrying lighters who wish to enter an airport sterile area have several options, some of which include leaving the lighter at home, or returning it to their car. These persons can also choose to abandon the lighter in TSA-provided receptacles, at which point title of the property transfers to the Government.

While TSA acknowledges this added inconvenience, TSA believes that the added security this change provides outweighs the inconvenience.

The Regulatory Flexibility Act (RFA) of 1980 requires that agencies perform a review to determine whether a proposed or final rule will have a significant economic impact on a substantial number of small entities. If the determination is that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA. For purposes of the RFA, small entities include small businesses, not-for-profit organizations, and small governmental jurisdictions. Individuals and States are not included in the definition of a small entity.

Based on the analysis discussed in the section above, this interpretative rule does not impose a significant economic impact on a substantial number of small entities. Therefore, a Regulatory Flexibility Analysis is not required.

The Trade Agreement Act of 1979 prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. TSA has assessed the potential effect of this interpretative rule and has determined that it will impose the same costs on domestic and international entities and thus has a neutral trade impact.

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

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

TSA has analyzed this interpretive rule under the principles and criteria of Executive Order 13132, Federalism. We have determined that this action 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, and therefore will not have federalism implications.

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

The energy impact of this action has been assessed in accordance with the Energy Policy and Conservation Act (EPCA), Public Law 94-163, as amended (42 U.S.C. 6362).

We have determined that this rulemaking is not a major regulatory action under the provisions of the EPCA.

The fishery for coastal migratory pelagic fish (king mackerel, Spanish mackerel, cero, cobia, little tunny, and, in the Gulf of Mexico only, dolphin and bluefish) is managed under the Fishery Management Plan for the Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic (FMP). The FMP was prepared by the Gulf of Mexico and South Atlantic Fishery Management Councils (Councils) and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

Based on the Councils' recommended total allowable catch and the allocation ratios in the FMP, on April 30, 2001 (66 FR 17368, March 30, 2001), NMFS implemented a commercial quota of 2.25 million lb (1.02 million kg) for the eastern zone (Florida) of the Gulf migratory group of king mackerel. That quota is further divided into separate quotas for the Florida east coast subzone and the northern and southern Florida west coast subzones. On April 27, 2000, NMFS implemented the final rule (65 FR 16336, March 28, 2000) that divided the Florida west coast subzone of the eastern zone into northern and southern subzones and established their separate quotas. The quota implemented for the southern Florida west coast subzone is 1,040,625 lb (472,020 kg). That quota is further divided into two equal quotas of 520,312 lb (236,010 kg) for vessels in each of two groups fishing with hook-and-line gear and run-around gillnets (50 CFR 622.42(c)(1)(i)(A)( 2 )( i )).

In accordance with 50 CFR 622.44(a)(2)(ii)(B)( 2 ), from the date that 75 percent of the southern Florida west coast subzone's quota has been harvested until a closure of the subzone's fishery has been effected or the fishing year ends, king mackerel in or from the EEZ may be possessed on board or landed from a permitted vessel in amounts not exceeding 500 lb (227 kg) per day.

NMFS has determined that 75 percent of the quota for Gulf group king mackerel for vessels using hook-and-line gear in the southern Florida west coast subzone was reached on February 24, 2005. Accordingly, a 500-lb (227-kg) trip limit applies to vessels in the commercial hook-and-line fishery for king mackerel in or from the EEZ in the southern Florida west coast subzone effective 12:01 a.m., local time, February 25, 2005. The 500-lb (227-kg) trip limit will remain in effect until the fishery closes or until the end of the current fishing year (June 30, 2005), whichever occurs first.

The Florida west coast subzone is that part of the eastern zone south and west of 25°20.4′ N. lat. (a line directly east from the Miami-Dade County, FL, boundary). The Florida west coast subzone is further divided into northern and southern subzones. The southern subzone is that part of the Florida west coast subzone that from November 1 through March 31, extends south and west from 25°20.4′ N. lat. to 26°19.8′ N. lat.(a line directly west from the Lee/Collier County, FL, boundary), i.e., the area off Collier and Monroe Counties. From April 1 through October 31, the southern subzone is the part of the Florida west coast subzone that is between 26°19.8′ N. lat. and 25°48′ N. lat. (a line directly west from the Monroe/Collier County, FL, boundary), i.e., the area off Collier County.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B), as such prior notice and opportunity for public comment is unnecessary and contrary to the public interest. Such procedures would be unnecessary because the rule itself has already been subject to notice and comment, and all that remains is to notify the public of the trip limit reduction. Allowing prior notice and opportunity for public comment is contrary to the public interest because of the need to immediately implement this action in order to protect the fishery because the capacity of the fishing fleet allows for rapid harvest of the quota. Prior notice and opportunity for public comment will require time and would potentially result in a harvest well in excess of the established quota.

For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).

This action is taken under 50 CFR 622.43(a) and is exempt from review under Executive Order 12866.

NMFS manages the groundfish fishery in the BSAI according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The 2005 A season directed fishing allowance of Pacific cod specified for catcher/processor vessels using hook-and-line gear in the BSAI is established as 46,407 metric tons by the 2005 and 2006 final harvest specifications for groundfish in the BSAI (70 FR 8979, February 24, 2005). See § 679.20(c)(1)(iii), § 679.20(c)(5), and § 679.20(a)(7)(i)(A) and (a)(7)(i)(C)( 1 )( i ).

In accordance with § 679.20(d)(1)(iii), the Administrator, Alaska Region, NMFS, has determined that the 2005 A season directed fishing allowance of Pacific cod specified for catcher/processor vessels using hook-and-line gear in the BSAI has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by catcher/processor vessels using hook-and-line gear in the BSAI.

After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of the fisheries under the 2005 A season directed fishing allowance of Pacific cod specified for catcher/processor vessels using hook-and-line gear in the BSAI.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that if the amount of a target species apportioned to a fishery or, with respect to Pacific cod, to an inshore or offshore component allocation, will be reached, the Regional Administrator may establish a directed fishing allowance for that species or species group.

As established by the 2005 and 2006 final harvest specifications for groundfish of the GOA (70 FR 8958, February 24, 2005), the 2005 A season allowance of the Pacific cod TAC for vessels catching Pacific cod for processing by the inshore component in the Western Regulatory Area of the GOA is 8,471 metric tons (mt); for processing by the offshore component in the Western Regulatory Area of the GOA is 941 mt; and for processing by the offshore component of the Central Regulatory Area of the GOA is 1,505 mt. See § 679.20(c)(1)(iii), § 679.20(c)(4)(ii), and § 679.20(a)(11).

In accordance with 679.20(d)(1)(iii), the Regional Administrator has determined that the A season directed fishing allowances for Pacific cod by vessels catching Pacific cod for processing by the inshore component in the Western Regulatory Area of the GOA, Pacific cod by vessels catching Pacific cod for processing by the offshore component in the Western Regulatory Area of the GOA, and Pacific cod by vessels catching Pacific cod for processing by the offshore component of the Central Regulatory Area of the GOA have been reached and the remaining amounts of the A season TAC allowances are necessary as bycatch to support other anticipated groundfish fisheries until the next seasonal apportionments of Pacific cod become available September 1, 2005. Consequently, NMFS is prohibiting directed fishing for these fisheries.

After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closures of the directed fisheries for Pacific cod for specified sectors in the Western and Central Regulatory Areas of the GOA.

The AA also finds good cause to waive the 30 day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.

Beginning in 1995, fishing for Pacific halibut ( Hippoglossus stenolepis ) and sablefish ( Anoplopoma fimbria ) with fixed gear in the IFQ regulatory areas defined in § 679.2 has been managed under the IFQ Program. The IFQ Program is a regulatory regime designed to promote the conservation and management of these fisheries and to further the objectives of the Magnuson-Stevens Fishery Conservation and Management Act and the Northern Pacific Halibut Act. Persons holding quota share receive an annual allocation of IFQ. Persons receiving an annual allocation of IFQ are authorized to harvest IFQ species within specified limitations. Further information on the implementation of the IFQ Program, and the rationale supporting it, are contained in the preamble to the final rule implementing the IFQ Program published in the Federal Register on November 9, 1993 (58 FR 59375) and subsequent amendments.

This announcement is consistent with § 679.23(g)(1), which requires that the directed fishing season for sablefish managed under the IFQ program be specified by the Administrator, Alaska Region, and announced by publication in the Federal Register . This method of season announcement was selected to facilitate coordination between the sablefish season, chosen by the Administrator, Alaska Region, and the halibut season, chosen by the IPHC. The directed fishing season for sablefish with fixed gear managed under the IFQ program will open 1200 hrs, A.l.t., February 27, 2005, and will close 1200 hrs, A.l.t., November 15, 2005. This period runs concurrently with the IFQ season for Pacific halibut announced by the IPHC. The IFQ halibut season will be specified by a separate publication in the Federal Register of annual management measures pursuant to 50 CFR 300.62.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the opening of the sablefish fishery thereby increasing bycatch and regulatory discards between the sablefish fishery and the halibut fishery, and preventing the accomplishment of the management objective for simultaneous opening of these two fisheries.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.23 and is exempt from review under Executive Order 12866.