The Office of Personnel Management (OPM) is issuing interim regulations to implement section 202(b) of the Federal Workforce Flexibility Act of 2004 (Pub. L. 108-411, October 30, 2004). Section 202(b) amends 5 U.S.C. 6303 to add a new section (f) to provide that members of the Senior Executive Service (SES), employees in senior-level (SL) and scientific or professional (ST) positions, and employees covered by an equivalent pay system, as determined by OPM, who are covered by the Federal annual and sick leave program established under chapter 63 of title 5, United States Code, will accrue annual leave at the rate of 1 day (8 hours) for each full biweekly pay period, without regard to their length of service in the Federal Government. Under 5 U.S.C. 6311, OPM has general authority to issue regulations necessary to administer the Federal annual and sick leave program established under chapter 63 of title 5, United States Code. We have amended the regulations at 5 CFR 630.301(a) to reflect the new annual leave accrual rate for members of the SES and employees in SL/ST positions.

The higher annual leave accrual rate became effective on October 30, 2004 (the date of enactment of the Federal Workforce Flexibility Act of 2004). Section 6303 of title 5, United States Code, provides that employees accrue annual leave on the basis of full biweekly pay periods. Since the annual leave accrual rate changed during the October 17-30, 2004, pay period, agencies must credit annual leave accruals at the 8-hour accrual rate for affected employees who are employed for the full pay period beginning on October 17, 2004.

Section 202(b) provides OPM with the authority to provide the 8-hour annual leave accrual rate to employees covered by a pay system that is equivalent to the SES pay system or the SL/ST pay system, as determined by OPM. We have extended coverage of the higher annual leave accrual rate to employees in the Senior Foreign Service, the Defense Intelligence Senior Executive Service, the Senior Cryptologic Executive Service, the Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service, and the Senior Intelligence Service. (See http://www.opm.gov/oca/compmemo/2004/2004-23.asp.) In addition, we have approved agency requests to extend coverage to additional categories of employees which OPM has determined are covered by pay systems that are equivalent to the SES or SL/ST pay system. A list of the additional categories of employees to which OPM has extended coverage of the higher annual leave accrual rate is posted on OPM's Web site in the fact sheet titled “Annual Leave Accrual Rates for the Senior Executive Service, Senior-Level and Scientific or Professional Positions, or Equivalent Positions” at http://www.opm.gov.oca/leave/HTML/ANNUAL.asp.

The law and the interim regulations at 5 CFR 630.301(b) allow the head of an agency to request that OPM authorize the 8-hour annual leave accrual rate for additional categories of employees who hold positions in pay systems determined by OPM to be equivalent to the SES pay system or the SL/ST pay system. Such a request must include documentation that the affected pay system is equivalent to the SES or SL/ST pay system because it meets all three of the following conditions:

1. Pay rates are established under an administratively determined (AD) pay system that was created under a separate statutory authority. If an AD position has a single rate of pay established under an authority outside of 5 U.S.C. chapters 51 and 53, that single rate (excluding locality pay) must be higher than the rate for GS-15, step 10 (excluding locality pay). If an AD position is paid within a rate range established under an authority outside of 5 U.S.C. chapters 51 and 53, the minimum rate of the rate range (excluding locality pay) must be at least equal to the minimum rate for the SES and SL/ST pay systems (120 percent of the rate for GS-15, step 1, excluding locality pay), and the maximum rate of the rate range (excluding locality pay) must be at least equal to the rate for level IV of the Executive Schedule.

2. Covered positions are equivalent to a “Senior Executive Service position” as defined in 5 U.S.C. 3132(a)(2), a senior-level position (i.e., a non-executive position that is classified above GS-15, such as a high-level special assistant or a senior attorney in a highly-specialized field who is not a manager, supervisor, or policy advisor), or a scientific or professional position as described in 5 U.S.C. 3104; and

3. Covered positions are subject to a performance appraisal system established under 5 U.S.C. chapter 43 and 5 CFR part 430, subparts B and C, or other applicable legal authority, for planning, monitoring, developing, evaluating, and rewarding employee performance.

If OPM approves an agency's request to extend coverage of the higher annual leave accrual rate to additional categories of employees, the change to the higher accrual rate will become effective for the pay period during which OPM approves the agency's request. As coverage is approved for additional categories of employees, they will be added to the list of approved categories at http://www.opm.gov.oca/leave/HTML/ANNUAL.asp.

The higher annual leave accrual rate applies only to an employee who holds a position covered by the SES or SL/ST pay system or a position covered by a pay system determined by OPM to be equivalent to the SES or SL/ST pay system. An employee who moves from a covered pay system to a noncovered pay system is no longer entitled to the higher annual leave accrual rate. In such a case, the employee's annual leave accrual rate must be determined based on his or her length of Federal service, as provided in 5 U.S.C. 6303(a). Agencies must continue to follow current guidance in determining the service computation date for leave for current and newly appointed members of the SES, employees in SL/ST positions, and employees who hold positions in equivalent pay systems.

Pursuant to 5 U.S.C. 553(b)(3)(B), I find that good cause exists for waiving the general notice of proposed rulemaking. Also, pursuant to 5 U.S.C. 553(d)(3), I find that good cause exists for making this rule effective in less than 30 days. These regulations implement a provision of Public Law 108-411, which became effective on October 30, 2004. The waiver of the requirements for proposed rulemaking and a delay in the effective date is necessary to ensure timely implementation of the law as intended by Congress.

This rule has been reviewed by the Office of Management and Budget in accordance with E.O. 12866.

I certify that these regulations will not have a significant economic impact on a substantial number of small entities because they will apply only to Federal agencies and employees.

Background

The Administrator may impose a civil penalty against a person other than an individual acting as a pilot, flight engineer, mechanic, or repairman, after notice and an opportunity for a hearing on the record, for violations cited in 49 U.S.C. 46301(d)(2) or 47531. 49 U.S.C. 46301(d)(7)(A) and 47531. These violations, in general, involve aviation safety issues. Also, under 49 U.S.C. 5123 and 49 CFR 1.47(k), the Administrator may, after notice and an opportunity for a hearing, assess a civil penalty against any person who knowingly violates the Federal hazardous materials transportation law, 49 U.S.C. chapter 51, or any of its implementing regulations. The rules governing proceedings in these civil penalty cases are set forth in 14 CFR 13.16 and 14 CFR part 13, subpart G. We recently amended those rules to, among other things, provide the new address of the FAA Hearing Docket. 70 FR 8236, February 18, 2005. As we explained in the February 18, 2005, notice, the FAA Hearing Docket is now located in Room 2014 of the Wilbur Wright Building, 600 Independence Avenue, SW., Washington, DC 20591. Anyone hand-delivering a document for filing should go to the Wilbur Wright Building at the above address. Packages sent by expedited courier to the Hearing Docket should be addressed as follows: Hearing Docket, Federal Aviation Administration, 600 Independence Avenue, SW., Wilbur Wright Building—Room 2014, Washington, DC 20591; Att: Hearing Docket Clerk, AGC-430.

As explained further in the February 18, 2005, notice, all envelopes and packages sent by U.S. Mail to individuals in the Wilbur Wright Building are processed by the FAA Headquarters' mail room staff located at 800 Independence Avenue, SW., Washington, DC 20591. Consequently, anyone using U.S. Mail to file a document should use the following address: Hearing Docket, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; Att: Hearing Docket Clerk, AGC-430, Wilbur Wright Building—Room 2014.

We explained in the February 18, 2005, notice that we were revising several sections of 14 CFR part 13, subpart G—including 14 CFR 13.233—to include this new information. However, we failed to include the actual revision in the notice. This technical amendment is intended to correct that omission from the previous revision.

In general, under the APA, 5 U.S.C. 533, agencies must publish regulations for public comment and give the public at least 30 days notice before adopting regulations. There is an exception to these requirements if the agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest. In this case, the FAA finds that notice and comment requirements are unnecessary due to the administrative nature of the changes. It is in the public interest that the revision to 14 CFR 13.233 takes effect promptly so that anyone appealing from an administrative law judge's initial decision or order knows the correct address to use for the Hearing Docket. This revision was inadvertently omitted during the prevision revision. The amendments set forth in this notice do not affect the rights or duties of any regulated entity.

The FAA proposed to amend 14 CFR Part 39 with an AD for all Airbus Model A330, A340-200, and A340-300 series airplanes. That action, published in the Federal Register on January 12, 2005 (70 FR 2067), proposed to require repetitive inspections of a certain bracket that attaches the flight deck instrument panel to the airplane structure; replacement of the bracket with a new, improved bracket; and related investigative and corrective actions if necessary.

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

We have revised paragraphs (i)(3)(i) and (i)(3)(ii) to clarify that the compliance times are relative to the replacement of a certain bracket that attaches the flight deck instrument panel to the airplane structure.

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

This AD will affect about 19 Model A330 series airplanes of U.S. registry. The required inspection will take about 1 work hour per airplane, per inspection cycle, at an average labor rate of $65 per work hour. Based on these figures, the estimated cost of the AD for U.S. operators is $1,235, or $65 per airplane, per inspection cycle.

There are currently no affected Model A340-200 or -300 series airplanes of U.S. registry. However, if one of these airplanes is imported and put on the U.S. Register in the future, this cost estimate will also apply to those airplanes.

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

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

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

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

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

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

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

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

The FAA proposed to amend 14 CFR Part 39 with an AD for certain Boeing Model 747-200B, 747-200C, 747-200F, 747-300, and 747SR series airplanes, equipped with General Electric CF6-45 or -50 series engines. That action, published in the Federal Register on January 3, 2005 (70 FR 51), proposed to require modifying the side cowl assemblies on the engines by replacing existing wear plates with new extended wear plates and installing new stop fittings.

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

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

There are about 140 airplanes of the affected design in the worldwide fleet. This AD affects about 38 airplanes of U.S. registry. The following table provides the estimated costs for U.S. operators to comply with this AD.

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

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

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

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

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

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

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

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

The FAA proposed to amend part 39 of the Federal Aviation Regulations (14 CFR Part 39) with an AD to supersede AD 2002-18-04, amendment 39-12878 (67 FR 57510, September 11, 2002). The existing AD applies to certain Boeing Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-300, 747SP, and 747SR series airplanes. The proposed AD was published in the Federal Register on November 5, 2004 (69 FR 64525), to continue to require one-time inspections for cracking in certain upper deck floor beams and follow-on actions. The proposed AD would expand the existing inspection area, and would require inspecting fastener holes in certain areas of airplanes modified previously, and taking corrective actions if necessary. The proposed AD also would define new sources for instructions for repairs and post-modification/repair inspections.

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 by a single commenter.

The commenter requests that we revise the proposed AD to change references to approval of repairs or alternative methods of compliance (AMOCs) by Boeing Company Designated Engineering Representatives (DERs). The commenter states that these provisions should refer to approval by Authorized Representatives (ARs) of the Boeing Delegation Option Authorization (DOA) Organization. The commenter notes that, since the issuance of the proposed AD, Boeing has received a DOA.

We concur. We have revised paragraphs (h)(1)(i), (h)(2), and (i) of this AD (which are restated requirements of AD 2002-18-04) to delegate the authority to approve a repair to a Boeing Company DER or to an AR of the Boeing DOA Organization. We have revised paragraphs (m) and (o)(2) to delegate the authority to approve a repair or an AMOC to an AR of the Boeing DOA.

The commenter requests that we revise Note 2 of the proposed AD, which states:

We agree. Note 2 was carried over with the other requirements of AD 2002-18-04. We inadvertently failed to revise the note to reflect the fact that inspecting in accordance with paragraph (l) of this AD terminates the requirements of paragraph (i) of this AD. We have revised Note 2 of this AD to remove the statement that there is no terminating action for the inspections in paragraph (i) of this AD.

The commenter requests that we clarify paragraph (j) of the proposed AD to specify that only the holes not previously inspected in accordance with Boeing Alert Service Bulletin 747-53A2459, dated January 11, 2001, need to be inspected in accordance with that paragraph. The commenter points out that paragraph (g) of the proposed AD requires modifying the upper deck floor beams at STA 340 and STA 360. If this modification is not done at the time of the inspection required by paragraph (f) of the proposed AD, paragraph (g) specifies that the inspection in paragraph (f) must be repeated immediately prior to accomplishing the modification in paragraph (g). The commenter notes that, after the effective date of the AD, this repeat inspection must be accomplished in accordance with Boeing Service Bulletin 747-53A2459, Revision 1, dated March 11, 2004. Thus, paragraph (j) need only require the inspection of holes not previously inspected by the original issue of the service bulletin.

We agree with the commenter's intent, but we find that no change to this AD is necessary to meet the commenter's intent. Paragraph (j) of the proposed AD already specifies doing “* * * inspections for cracking of the fastener holes inboard of the body frame that were not previously inspected on the STA 340 and STA 360 upper deck floor beams.” After further review, however, we have determined that the detailed inspection that would have been required by paragraph (j) of this AD is the same as the one required by paragraph (f) of this AD. Therefore, we have revised paragraph (j) of this AD to remove the requirement to perform a detailed inspection.

The commenter also requests that we allow the inspections required by paragraph (j) of the proposed AD to be accomplished in accordance with Part 6 of the Accomplishment Instructions of Boeing Service Bulletin 747-53A2459, Revision 1. The commenter states no rationale for its request.

We do not concur. We note that the inspections and corrective actions specified in Part 6 of the Accomplishment Instructions of Boeing Service Bulletin 747-53A2459, Revision 1, are applicable only to airplanes modified in accordance with the initial release of Boeing Alert Service Bulletin 747-53A2459. No change to the AD is necessary in this regard.

The commenter requests that we revise paragraph (l) of the proposed AD to acknowledge an equivalent inspection for the purposes of establishing the applicable compliance time for the initial inspection specified in Table 3 of the proposed AD. The commenter states that an inspection in accordance with Part 6, Figure 14, of Boeing Service Bulletin 747-53A2459, Revision 1, is equivalent to an inspection in accordance with Figure 12 of Boeing Service Bulletin 747-53A2459, Revision 1. The commenter states that the same holes are covered by Figure 14 and Figure 12, and the same method is used for the inspection.

We concur, for the reasons stated by the commenter. We have revised paragraph (l) of this AD to specify that, for the purposes of paragraph (l) and Table 3 of this AD, an inspection in accordance with Part 6, Figure 14, of the Accomplishment Instructions of Boeing Service Bulletin 747-53A2459, Revision 1, is equivalent to an inspection in accordance with Part 5, Figure 12, of that service bulletin.

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

This AD will affect about 433 airplanes worldwide. The following table provides the estimated costs for U.S. operators to comply with this AD.

The FAA proposed to amend part 39 of the Federal Aviation Regulations (14 CFR Part 39) with an AD to supersede AD 2000-04-17, amendment 39-11600 (65 FR 10695, February 29, 2000). The existing AD applies to certain Boeing Model 747-100, -100B, -100B SUD, -200B, and -300 series airplanes; and Model 747SR and 747SP series airplanes. The proposed AD was published in the Federal Register on November 3, 2004 (69 FR 63965), to continue to require repetitive inspections to detect fatigue cracking in the upper deck floor beams located at certain body stations, and repair, if necessary. The action also proposed to lower the threshold for the existing repetitive inspections. In addition, the action also proposed to require new repetitive inspections of previously repaired areas, and repair of any crack.

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, the airplane manufacturer, requests that paragraph (g) of the proposed AD be revised to exclude counting of flight cycles with a cabin differential pressure of 2.0 pounds per square inch (psi) or less when determining the number of flight cycles to be used to determine the inspection compliance threshold and repeat intervals for the proposed actions. The commenter notes that this would align with the requirements of paragraph (c) of AD 2004-03-11, amendment 39-13455 (69 FR 5920, February 9, 2004). The commenter states that the fatigue and crack growth behavior at the floor panel holes in the upper chord of the upper deck floor beams, which are the subject of the proposed AD, is caused by tension stresses in the floor beam upper chords. The tension stresses in the 747 upper deck floor beams at stations 340, 360, and 380 are almost entirely the result of reacting load due to cabin differential pressure. Thus, the commenter concludes that it is technically correct to not count flights, which have a low cabin differential pressure and do not significantly contribute to fatigue and crack growth.

We do not agree with the commenter's request. Although we discussed the matter of not granting credit for pressurization cycles less than 2.0 psi in the “Differences Between the Proposed AD and Service Bulletin” section of the proposed AD, we find that further clarification is necessary.

The commenter correctly notes that the requirements of paragraph (c) of AD 2004-03-11 exclude counting pressurization cycles less than 2.0 psi. We acknowledge the commenter's technical rationale for not counting the pressurization cycles less than 2.0 psi in this AD. However, we do not agree with the commenter's request for the following reasons:

• There have been several instances on other in-service issues where analytical rationales, similar to that of the commenter, have indicated that pressurization cycles less than 2.0 psi should not be counted. However, when fleet records have been examined, the airplanes engaging in such operations are having the same or greater occurrences of crack findings compared to those on which all pressurized flights are counted. As a result, we carefully consider such matters based on all available factors, including individual operators' specific maintenance programs, technical rationale, and fleet experience.

• We have found that such provisions are applicable only to a small number of operators that may not pressurize their airplanes above 2.0 psi in all their flights. We have determined that the best way to handle such circumstances is for operators to request an alternative method of compliance (AMOC) in accordance with paragraph (n) of this AD, rather than increasing the complexity of the AD by addressing each operator's unique situation.

The same commenter requests that paragraph (h) of the proposed AD be revised to allow changing repetitive inspection methods in paragraph (h)(1) or (h)(2) of the proposed AD no matter which inspection method was used previously, provided that the corresponding repetitive inspection interval of 3,000 flight cycles or 750 flight cycles, respectively, is imposed. The commenter notes that this is allowed in Figure 1 of Boeing Alert Service Bulletin 747-53A2431, Revision 2, dated June 13, 2002 (referenced as the appropriate source of service information for accomplishing the proposed actions).

We agree. We have determined that, after accomplishing any inspection required by paragraph (h)(1) or (h)(2) of this AD, accomplishing any subsequent inspection using the alternate inspection method is adequate to detect cracking, provided that its corresponding repetitive interval is used. We have revised paragraph (h) of this AD accordingly.

Boeing has received a Delegation Option Authorization (DOA). We have revised certain new requirements in this final rule to delegate the authority to approve an alternative method of compliance for any repair required by this AD to the Authorized Representative for the Boeing DOA Organization rather than the Designated Engineering Representative. We have also revised certain requirements of AD 2000-04-17, which are retained in this final rule, to provide this delegation authority as an option.

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

There are about 539 Model 747-100, -100B, -100B SUD, -200B, and -300 series airplanes; and Model 747SR and 747SP series airplanes worldwide of the affected design. This AD will affect about 168 airplanes of U.S. registry.

The actions that are currently required by AD 2000-04-17 and retained in this AD take about 15 work hours per airplane, at an average labor rate of $65 per work hour. Based on these figures, estimated cost of the currently required actions is $163,800, or $975 per airplane, per inspection cycle.

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 caused this action? The FAA was notified that inadequate or incorrect flight controls rigging may exist on recently produced Cessna Models 172R, 172S, 182T, and T182T airplanes. The following issues were identified through Cessna's inspection of airplanes still at their production facility:

• Two airplanes with ailerons not engaging the upper stops and one with a flap push/pull rod missing the nut on the bolt.

• Elevator cables chafing fuel lines near the fuel selector, which caused damage to the fuel lines.

• Elevator trim cables routed outside the cotter pins in the horizontal stabilizer.

• Elevator trim cables crossed twice (trim functioned correctly in flight).

• Control cables rubbing structures such as bulkheads and center consoles.

• Aileron bell crank adjustment screw interference with stringer.

• Barrels on control cables not safety pinned or incorrectly pinned.

• Control cables routed outside of pulleys.

• A bent flap bell crank.

After careful review of all available information related to the subject presented above, FAA determined that:

• Operation of the affected Models 172R, 172S, 182T, and T182T airplanes should be prohibited until all the flight control systems are inspected and any discrepancies corrected; and

• AD action should be taken to prevent loss of airplane control due to incorrect or inadequate rigging of critical flight systems.

Consequently, we issued emergency AD 2005-05-53 on March 4, 2005, to require a one-time detailed inspection of the flight control system, correction of installations that do not conform to type design, and repair of any damage.

The serial number designations included in AD 2005-05-53 were incorrect. We then revised AD 2005-05-53 to correct the serial numbers in the AD.

Why is it important to publish this AD? The FAA found that immediate corrective action was required, that notice and opportunity for prior public comment were impracticable and contrary to the public interest, and that good cause existed to make the AD effective immediately by individual letters issued on March 5, 2005, to all known U.S. operators of Cessna Models 172R, 172S, 182T, and T182T airplanes. These conditions still exist, and AD 2005-05-53 R1 is published in the Federal Register as an amendment to section 39.13 of the Federal Aviation Regulations (14 CFR 39.13) to make it effective to all persons.

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 “Docket No. FAA-2005-20587; Directorate Identifier 2005-CE-10-AD” in the subject line of your comments. If you want us to acknowledge receipt of your mailed comments, send us a self-addressed, stamped postcard with the docket number written on it; we will date-stamp your postcard and mail it back to you. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify it. If a person contacts 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 the AD in light of those comments.

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-2005-20587; Directorate Identifier 2005-CE-10-AD” in your request.

What events have caused this AD? AD 99-06-02, Amendment 39-11066 (64 FR 11761, March 10, 1999), currently requires you to do the following on certain Fairchild SA226 and SA227 series airplanes:

Doing the actions as specified in AD 99-06-02 is required per the following documents:

AD 99-06-02 was the result of reports of cracks in the wing spar center web cutout caused by fatigue due to airplane maneuvering and wind gusts.

What has happened since AD 99-06-02 to initiate this action? The FAA inadvertently omitted certain Fairchild Model SA227-CC/DC airplane serial numbers from the applicability of AD 99-06-02. In particular, we restricted the applicability of these airplanes to serial numbers CC/DC784 and CC/DC790 through CC/DC878. Any Fairchild Model SA227-CC/DC airplane incorporating a serial number from CC/DC879 through CC/DC896 should also be affected by the actions of AD 99-06-02.

What is the potential impact if FAA took no action? If not detected and corrected, fatigue cracking of the wing spar center web cutout area could result in structural failure of the wing spar to the point of failure with consequent loss of control of the airplane.

Has FAA taken any action to this point? We issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to certain Fairchild SA226 and SA227 series airplanes. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on April 23, 1999 (64 FR 19934). The NPRM proposed to retain the actions of AD 99-06-02 and add additional Model SA227-CC/DC airplanes to the applicability section.

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

What is the commenter's concern? The manufacturer has revised the applicable service information to incorporate minor changes.

These revisions do not change the procedures contained in the service information referenced in AD 99-06-02; however, the manufacturer suggests incorporating the revised service information into the final rule AD action.

What is FAA's response to the concern? We concur with the commenter and will make this change in the final rule AD action.

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

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

How many airplanes does this AD impact? We estimate that this AD affects 508 airplanes in the U.S. registry.

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

These figures only take into account the costs of the initial inspection and do not take into account the costs of repetitive inspections and the costs associated with any repair that would be necessary if cracks are found. We have no way of determining the number of repetitive inspections an owner/operator will incur over the life of the airplane, or the number of airplanes that will need repairs.

We estimate the following costs to do any necessary repairs in both wing spar center webs that will be required based on the results of the inspection. We have no way of determining the number of airplanes that may need this repair:

What is the difference between the cost impact of this AD and the cost impact of AD 99-06-02? The only difference between AD 99-06-02 and this AD is the addition of 18 Fairchild Model SA227-CC/DC airplanes that we inadvertently omitted from the Applicability section of AD 99-06-02. Therefore, the only impact this AD has over that already required by AD 99-06-02 is the cost of the actions on the 18 additional airplanes.

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 “AD Docket No. 99-CE-12-AD” in your request.

What events caused previous FAA AD action? The FAA has received reports of (and is analyzing data from) cracks found in the wings of two Cessna Model 402C airplanes.

On the first airplane, early information indicates the airplane had severe cracking on its left wing in the vicinity of the forward spar and outboard engine beam. The main lower spar cap had completely failed at about Wing Station (WS) 114. The airplane also had cracks in the lower wing skin and the web splice doubler. Also found were two popped rivets: one between the heat shield and the wing skin and another between the factory installed web splice doublers and web. The airplane had 20,355 total hours time-in-service (TIS).

During the airplane's most recent flights before the cracking was found, the pilot noticed that roll trim was required. The flights required the pilot to use aileron trim for level flight to keep the wings level. The airplane landed safely and inspection revealed the cracks.

On the second airplane, fatigue cracks were found at about WS 114 in the main lower spar cap of another Model 402C airplane that had over 20,000 total hours TIS. Fatigue analysis shows that similar fatigue cracks could also develop in the wings of the Model 414A airplanes.

Airworthiness Directive (AD) 2000-23-01, Amendment 39-11971 (65 FR 70645), required repetitive visual inspections of the forward, aft, and auxiliary wing spars for cracks on Cessna Model 402C airplanes. These inspections are at intervals not to exceed 110 hours TIS.

Logbook records indicated that both airplanes with cracked spars were in compliance with AD 2000-23-01.

The FAA's analysis of the incidents presented above showed that, in the interim, the inspections of AD 2000-23-01 should be done more frequently and particular attention paid to certain areas.

Therefore, FAA issued Emergency AD 2005-05-51 to detect and correct cracking in the wing spars of the Cessna Models 402C and 414A airplanes before the cracks grow to failure. Such a wing failure could result in the wing separating from the airplane with consequent loss of control of the airplane.

Emergency AD 2005-05-51 superseded AD 2000-23-01 and:

• Required the visual inspections of the forward, aft, and auxiliary wings spars for cracks more frequently on Model 402C airplanes including special emphasis areas;

• Added inspection requirements for the Model 414A airplanes; and

• Included provisions to position the airplane to a home base, hangar, maintenance facility, etc.

Emergency AD 2005-05-51 did not affect those airplanes that incorporate a spar strap modification on each wing following the original release of (or a later FAA-approved revision to) Cessna Service Bulletin MEB02-5 and Cessna Service Kit SK402-47 (currently at MEB02-5 Revision 2 and SK402-47B).

What has caused this particular AD action? Emergency AD 2005-05-51 was considered an interim action to immediately require visual inspection of the forward, aft, and auxiliary wing spars for cracks. The intent was to detect immediate and existing cracking before it grew to wing failure.

The FAA has also received a report of a third crack found at WS 112 on a Model 402C airplane.

Cessna has developed new inspection techniques (eddy current) for the forward spar that are more effective at detecting cracks before the structural integrity of the wing is compromised. These inspection techniques will allow for longer intervals between repetitive inspections than in emergency AD 2005-05-51.

Recent fatigue analysis that Cessna did (and the FAA reviewed) reveals that eddy current inspections of the forward wing spars combined with visual inspections of the aft and auxiliary spars will address the unsafe condition of these airplanes until long-term continued operational safety is assured through the Cessna-developed and FAA-approved spar strap modifications. Specifically:

• The eddy current inspection will replace the visual inspection of the forward spar that emergency AD 2005-05-51 currently requires; and

• The visual inspections of the aft and auxiliary spars will be maintained from emergency AD 2005-05-51, but will only be required repetitively every 100 hours TIS instead of every 15 hours TIS.

Cessna has issued the following service information to include procedures to eddy current inspect the Models 402C and 414A airplanes:

• Cessna Service Bulletin MEB99-3, Revision 2, dated February 28, 2005 (Model 402C); or

• Cessna Service Bulletin MEB00-7, Revision 2, dated February 28, 2005 (Model 414A).

After careful review of all available information related to the subject presented above, including the above-referenced service bulletins, FAA has determined that:

• The forward wings spars should be inspected using eddy current methods on Cessna Models 402C and 414A airplanes;

• The visual inspections of the aft and auxiliary spars should be maintained from emergency AD 2005-05-51 (but not inspected as often); and

• AD action should be taken to detect and correct cracking in the wing spars before the cracks grow to failure. Such a wing failure could result in the wing separating from the airplane with consequent loss of control of the airplane.

Consequently, we issued emergency AD 2005-05-52 to supersede emergency AD 2005-05-51.

Why is it important to publish this AD? The FAA found that immediate corrective action was required, that notice and opportunity for prior public comment were impracticable and contrary to the public interest, and that good cause existed to make the AD effective immediately by individual letters issued on March 2, 2005, to all known U.S. operators of Cessna Models 402C and 414A airplanes. These conditions still exist, and the AD is published in the Federal Register as an amendment to section 39.13 of the Federal Aviation Regulations (14 CFR 39.13) to make it effective to all persons.

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 “Docket No. FAA-2005-20513; Directorate Identifier 2005-CE-07-AD” in the subject line of your comments. If you want us to acknowledge receipt of your mailed comments, send us a self-addressed, stamped postcard with the docket number written on it; we will date-stamp your postcard and mail it back to you. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify it. If a person contacts 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 the AD in light of those comments.

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-2005-20513; Directorate Identifier 2005-CE-07-AD” in your request.

The FAA proposed to amend 14 CFR part 39 with a proposed AD. The proposed AD applies to GE CF6-80A1/A3 and CF6-80C2A series turbofan engines. We published the proposed AD in the Federal Register on July 29, 2004 (69 FR 45295). That action proposed the same requirements for leak checks as the AD being superseded, AD 99-18-19, Amendment 39-11285 (64 FR 48277, September 23, 1999), but would increase the interval between required checks.

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

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

One commenter requests that the AD be closed instead of superseded. The commenter states his airplanes have never experienced a leaky DPV.

We do not agree. Although the operator has not yet experienced any leaks, the possibility still exists that a DPV leak may occur. This type of leak is a hidden failure that cannot be detected at the system level, and could result in inadvertent thrust reverser deployment, which, if it occurs in-flight, could result in loss of control of the airplane. This superseding AD reflects the favorable inspection results, by extending the inspection interval.

One commenter requests that any AMOCs issued under AD 99-18-19 be addressed in the superseding AD. The commenter states that it would be beneficial if operators did not have to submit new AMOC requests for deviations or changes previously approved by the FAA under AD 99-18-19.

We agree that any known AMOCs should be addressed in this superseding AD. The two known AMOCs issued under AD 99-18-19, however, are no longer necessary under the superseding AD. Any AMOCs that may have been overlooked and are not made obsolete by this superseding AD should be brought to the attention of the FAA Engine Certification Office.

One commenter requests that an increased inspection interval for engines configured with the Third Line of Defense (TLOD) system be included in this superseding AD. The commenter cites service bulletins issued by Airbus, and an AD issued by the Direction Generale de L'Aviation Civile (DGAC), the airworthiness authority for France, as substantiation for the interval increase. The commenter acknowledges that the DGAC AD does not affect U.S. registered airplanes.

We do not agree. The FAA Engine Certification Office has not yet approved the increased interval for engines configured with the TLOD system. The DGAC AD referenced by the commenter, AD 1999-242-289 R1, dated July 7, 2004, was subsequently cancelled by the European Aviation Safety Agency (EASA) with the issuance of AD 1999-242-289 R2. This cancellation notice stated that AD 1999-242-289 R1 was replaced by FAA AD 99-18-19, as noted on EASA cover document 2002-362-IMP.

In the proposed AD, we stated that the proposed AD “results from revisions to the manufacturer's alert service bulletins”. We received an internal request to clarify the reason for the superseding AD. For clarification, we have changed the final rule to state:

“This AD results from Airbus Industrie, the airplane manufacturer, revising the master minimum equipment list (MMEL) to include procedures for operating the airplane with the thrust reversers deactivated, and revising the AFM to include procedures for emergency operation if the thrust reversers deploy while in flight. This AD also results from the engine manufacturer recommending extending the interval between inspecting or replacing the DPV.”

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

There are about 544 engines of the affected design in the worldwide fleet. We estimate that 192 engines installed on airplanes of U.S. registry will be affected by this AD. We also estimate that it will take about 1 work hour per engine to perform the actions (about 227 per year), and that the average labor rate is $65 per work hour. Required parts will cost about $12,000 per engine. We estimate that operators will replace 9 percent of the existing DPVs. Based on these figures, we estimate the total cost of the AD to U.S. operators to be $259,915.

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

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

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

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

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

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

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

We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES. Include “AD Docket No. 99-NE-41-AD” in your request.

The FAA proposed to amend 14 CFR Part 39 with an AD for certain Boeing Model 767-200, -300, and -300F series airplanes. That action, published in the Federal Register on November 3, 2004 (69 FR 63963), proposed to require replacing the inboard fairing seal common to the vapor barrier seal of each strut assembly.

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.

Two commenters, the manufacturer and an operator, agree with the proposed AD.

One commenter, another operator, requests that we change the compliance deadline from 60 months to 84 months after the effective date. The operator states that this will allow the airlines to accomplish the required maintenance within their heavy maintenance visit schedules, thereby minimizing aircraft out-of-service time and the associated extra expense.

We do not agree with the commenter's request to extend the compliance time. In developing an appropriate compliance time for this action, we considered the safety implications, the level of effort needed to incorporate the change, and normal maintenance schedules for the timely accomplishment of the modification. In consideration of these items, we have determined that a 60-month interval will ensure an acceptable level of safety and allow the modifications to be done with no airplane out-of-service time during scheduled maintenance intervals for most affected operators. We have not changed the final rule.

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

We have discovered that the numbers shown in the proposed AD were incorrect for the worldwide total of affected airplanes and affected airplanes of U.S. registry. We have changed the Costs of Compliance section of this AD to reflect the correct numbers of affected airplanes.

There are about 723 airplanes worldwide of the affected design. This AD will affect about 228 airplanes of U.S. registry. The actions will take about 4 work hours per airplane, at an average labor rate of $65 per work hour. Required parts will cost about $185 per airplane. Based on these figures, the estimated cost of the AD for U.S. operators is $101,460, or $445 per airplane.

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

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

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

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

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

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

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

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

The FAA published this direct final rule with a request for comments in the Federal Register on February 7, 2005 (70 FR 6334). The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on May 12, 2005. No adverse comments were received, and thus this notice confirms that this direct final rule will become effective on that date.

OSHA published a final rule for Fire Protection in Shipyard Employment on September 15, 2004, at 69 FR 55668 to provide increased protection for shipyard employment workers from the hazards of fire on vessels and vessel sections and at related land-side facilities. The final rule became effective on December 14, 2004. As required by the Paperwork Reduction Act of 1995, the Federal Register notice for the final rule stated that compliance with the collection of information requirements was not required until those collections of information had been approved by OMB and until the Department of Labor published a notice in the Federal Register announcing the OMB control number assigned by OMB. Under 5 CFR 1320.5(b), an agency may not conduct or sponsor a collection of information unless: (1) The collection of information displays a currently valid OMB control number; and (2) the agency informs the potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.

On September 19, 2004, the Agency submitted the Fire Protection in Shipyard Employment (29 CFR part 1915, subpart P) information collection request to OMB for approval in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). On November 30, 2004, OMB approved the collections of information and assigned OMB Control Number 1218-0248. The approval for the collection expires on November 30, 2007. The approved collections of information are:

Paragraph (d)(1) Multi-employer worksites, Host employer responsibilities.

Paragraph (d)(2) Multi-employer worksites, Contract employer responsibilities.

Paragraph (a) Employer responsibilities (to create a fire safety plan).

Paragraph (b) Plan elements.

Paragraph (c) Reviewing the plan with employees.

Paragraph (d) Additional employer requirements.

Paragraph (a) Written fire watch policy.

Paragraph (a) Employer responsibilities (written fire response policy).

Paragraph (b) Required written policy information.

Paragraph (d) Organization of internal fire response functions.

Paragraph (b) Requirements for automatic and manual systems.

Paragraph (c) General requirements for fixed extinguishing systems.

Paragraph (a) Training Frequency.

Paragraph (b) Training for all employees.

Paragraph (c) Additional training requirements for employees expected to fight incipient stage fires.

Paragraph (d) Additional training requirements for employees designated to perform fire response activities.

Paragraph (e) Additional training requirements for employees assigned to fire watch duty.

Paragraph (f) Records.

Jonathan L. Snare, Acting Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this document. The authority for this document is the Paperwork Reduction Act of 1995 (44 U.S.C. 3506), Secretary of Labor's Order No. 5-2002 (67 FR 65008).

On December 22, 2004, the Secretary published a notice of proposed rulemaking (NPRM) for 34 CFR parts 606, 607, 611, 637, 648, 656, 657, 658, 660, 661, 662, 663, 664, and 669 in the Federal Register (69 FR 76636). In the preamble of the NPRM, the Secretary discussed on pages 76636 and 76637 the major changes proposed to the current regulations. These are as follows:

• The Secretary proposed removing the mandatory point values from the selection criteria in the regulations associated with the application process for discretionary grant programs. These amendments provide the Secretary with the flexibility to select specific point values from year to year to address current priorities for the programs.

• The Secretary also proposed amending 34 CFR part 611, which governs the Teacher Quality Enhancement Grants (TQE) program. This amendment makes discretionary the existing requirement that in competitions for grants under the program's Partnership and Teacher-Recruitment components, the Secretary conduct a two-stage process for selecting applicants involving the submission and review of pre-applications and full applications.

There were no differences between the NPRM and these final regulations.

In response to the Secretary's invitation in the NPRM, the Department did not receive any comments on the changes to the TQE program. Several parties submitted comments on the proposed regulations regarding removal of mandatory point values. An analysis of the comments follows.

Generally, we do not address technical and other minor changes—and suggested changes the law does not authorize the Secretary to make.

Comments: Several commenters believed that the elimination of points will result in some institutions being denied the opportunity to compete for grants because they will not have enough time to prepare because of the change.

Discussion: The Secretary does not agree that eliminating specific point values from the regulations will reduce the opportunity for potential grantees to compete for grants. The regulations continue to specify the criteria used in making the grants in each program. Moreover, the points to be awarded for each criteria will be specified in a Federal Register notice or in the application package, which will be available in enough time for potential applicants to prepare their applications.

Change: None.

Comment: Several commenters wrote that eliminating points from the criteria will result in a reduced focus on institutions that serve disadvantaged students or programs that serve a particular group.

Discussion: The Secretary understands the concerns of the commenters. We do not believe that the proposed change will lead to reduced focus on institutions that serve disadvantaged students or particular groups of students. Removing point values from the regulations does not change the selection criteria or otherwise change the focus of the programs.

Change: None.

Comment: Several commenters stated that the elimination of points would result in a preference for four-year institutions over two-year institutions.

Discussion: We have no reason to believe that the removal of points from the regulations will result in a preference for four-year institutions over two-year institutions in grant awards. The selection criteria will remain the same, so the removal of points will not effect the selection of applicants.

Change: None.

We have reviewed these final regulations in accordance with Executive Order 12866. Under the terms of the order we have assessed the potential costs and benefits of this regulatory action.

The potential costs associated with the final regulations are those resulting from statutory requirements and those we have determined to be necessary for administering these programs effectively and efficiently.

In assessing the potential costs and benefits—both quantitative and qualitative—of these final regulations, we have determined that the benefits regulations justify the costs.

We have also determined that this regulatory action would not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions.

We discussed the potential costs and benefits of these final regulations in the preamble to the NPRM in the section titled Supplementary Information.

The Secretary certifies that these final regulations will not have a significant economic impact on a substantial number of small entities. Small entities affected by these regulations are small institutions of higher education. The changes will not have a significant economic impact on the institutions affected.

The Paperwork Reduction Act of 1995 does not require you to respond to a collection of information unless it displays a valid OMB control number. We display the valid OMB control numbers assigned to collections of information in these final regulations at the end of the affected sections of the regulations.

In the NPRM we requested comments on whether the proposed regulations would require transmission of information that any other agency or authority of the United States gathers or makes available.

Based on the response to the NPRM and on our review, we have determined that these final regulations do not require transmission of information that any other agency or authority of the United States gathers or makes available.

You may view this document, as well as all other Department of Education documents published in the Federal Register, in text or Adobe Portable Document Format (PDF) on the Internet at the following site: http://www.ed.gov/news/fedregister.

To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.

Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA) (16 U.S.C. 3111-3126) requires that the Secretary of the Interior and the Secretary of Agriculture (Secretaries) implement a joint program to grant a preference for subsistence uses of fish and wildlife resources on public lands, unless the State of Alaska enacts and implements laws of general applicability that are consistent with ANILCA and that provide for the subsistence definition, preference, and participation specified in Sections 803, 804, and 805 of ANILCA. In 1978, the State implemented a program that the Department of the Interior previously found to be consistent with ANILCA. However, in December 1989, the Alaska Supreme Court ruled in McDowell v. State of Alaska that the rural preference in the State subsistence statute violated the Alaska Constitution. The Court's ruling in McDowell required the State to delete the rural preference from the subsistence statute and, therefore, negated State compliance with ANILCA. The Court stayed the effect of the decision until July 1, 1990.

As a result of the McDowell decision, the Department of the Interior and the Department of Agriculture (Departments) assumed, on July 1, 1990, responsibility for implementation of Title VIII of ANILCA on public lands. On June 29, 1990, the Temporary Subsistence Management Regulations for Public Lands in Alaska were published in the Federal Register (55 FR 27114). On January 8, 1999 (64 FR 1276), the Departments extended jurisdiction to include waters in which there exists a Federal reserved water right. This amended rule conformed the Federal Subsistence Management Program to the Ninth Circuit's ruling in Alaska v. Babbitt. Consistent with Subparts A, B, and C of these regulations as revised May 7, 2002 (67 FR 30559), the Departments established a Federal Subsistence Board to administer the Federal Subsistence Management Program. The Board's composition includes a Chair appointed by the Secretary of the Interior with concurrence of the Secretary of Agriculture; the Alaska Regional Director, U.S. Fish and Wildlife Service; the Alaska Regional Director, U.S. National Park Service; the Alaska State Director, U.S. Bureau of Land Management; the Alaska Regional Director, U.S. Bureau of Indian Affairs; and the Alaska Regional Forester, USDA Forest Service. Through the Board, these agencies participated in the development of regulations for Subparts A, B, and C, and the annual Subpart D regulations.

All Board members have reviewed this rule and agree with its substance. Because this rule relates to public lands managed by agencies in both the Departments of Agriculture and the Interior, identical text will be incorporated into 36 CFR part 242 and 50 CFR part 100.

Subparts A, B, and C (unless otherwise amended) of the Subsistence Management Regulations for Public Lands in Alaska, 50 CFR 100.1 to 100.23 and 36 CFR 242.1 to 242.23, remain effective and apply to this rule. Therefore, all definitions located at 50 CFR 100.4 and 36 CFR 242.4 apply to regulations found in this subpart.

Pursuant to the Record of Decision, Subsistence Management Regulations for Federal Public Lands in Alaska, April 6, 1992, and the Subsistence Management Regulations for Federal Public Lands in Alaska, 36 CFR 242.11 and 242.22 (2002) and 50 CFR 100.11 and 100.22 (2002), and for the purposes identified therein, we divide Alaska into 10 subsistence resource regions, each of which is represented by a Federal Subsistence Regional Advisory Council (Regional Council). The Regional Councils provide a forum for rural residents with personal knowledge of local conditions and resource requirements to exercise a meaningful role in the subsistence management of fish and wildlife on Alaska public lands. The Regional Council members represent varied geographical, cultural, and user diversity within each region.

The Regional Councils had a substantial role in reviewing the proposed rule ( 69 FR 5105, February 3, 2004) and making recommendations for this final rule. Moreover, the Council Chairs, or their designated representatives, presented their Council's recommendations at the Board meeting of January 11-13, 2005.

Section __.24 (Customary and traditional use determinations) was originally published in the Federal Register (57 FR 22940) on May 29, 1992. Since that time, the Board has made a number of Customary and Traditional Use Determinations at the request of impacted subsistence users. Those modifications, along with some administrative corrections, were last published in the Federal Register on February 3, 2004 (69 FR 5105). During its January 11-13, 2005, meeting, the Board made new determinations in addition to various annual season and harvest limit changes. The public has had extensive opportunity to review and comment on all changes. Additional details on the recent Board modifications are contained below in Analysis of Proposals Adopted by the Board.

Subpart D regulations are subject to an annual cycle and require development of an entire new rule each year. Customary and traditional use determinations are also subject to an annual review process providing for modification each year. We published proposed Subpart D regulations for the 2005-06 seasons, harvest limits, and methods and means on February 3, 2004, in the Federal Register (69 FR 5105). A 45-day comment period providing for public review of the proposed rule and calling for proposals was advertised by mail, radio, and newspaper. During that period, the Regional Councils met and, in addition to other Regional Council business, received suggestions for proposals from the public. The Board received a total of 30 proposals for changes to Customary and Traditional Use Determinations or to Subpart D. Subsequent to the review period, the Board prepared a booklet describing the proposals and distributed it to the public. The public had an additional 30 days in which to comment on the proposals for changes to the regulations. The 10 Regional Councils then met again, received public comments, and formulated their recommendations to the Board on proposals for their respective regions. One of the proposals was not considered, being withdrawn before Board consideration. These final regulations reflect Board review and consideration of Regional Council recommendations and public comments on the remaining proposals.

The Board rejected 11 proposals. With one exception, all of these actions were based on recommendations from at least one Regional Council.

The Board rejected one proposal that requested significant restrictions on the exercise of customary trade. The Board rejected this proposal as an unnecessary restriction on subsistence users.

One proposal requested us to restrict the size of gillnets in the Yukon River. This proposal was rejected because it would have resulted in Federal regulations that are more restrictive than State regulations and the Board viewed it as an unnecessary restriction on subsistence users.

One proposal to establish a 6-day fall chum salmon season in Subdistrict 5D was rejected based on conservation concerns and the ability of in-season managers to protect salmon runs for long-term subsistence opportunities.

The Board rejected two proposals requesting revisions to the subsistence fishing schedule for the Yukon and Kuskokwim Rivers. The Board rejected these proposals because the current fishing schedules are a result of a coordinated effort by users and government bodies to rebuild depressed salmon stocks and are for the long-term benefit of all users. Additionally, in-season managers already have the authority to relax schedules when run strength is adequate to allow additional harvest.

The Board rejected one proposal that would have removed the requirement for a Federal subsistence fishing permit for steelhead in the Yakutat Fishery Management Area. This proposal was rejected because the Board cited a need to have harvest data on a resource that is vulnerable to overharvest.

The Board rejected one proposal contrary to the recommendation of the Regional Council in order to prevent detrimental impacts to subsistence users from harassment when taking resources for ceremonial purposes and in order to assure long-term conservation of the resources being used.

Two proposals rejected by the Board related to the incidental take of fish in the Southeastern Alaska Area. The Board viewed these proposals as serving no useful purpose, addressing no conservation concerns, being confusing to the users, and generally being unenforceable.

The Board rejected one proposal that would have removed a closure restriction in the Kutlaku Lake area. This proposal was rejected because of a continuing conservation concern for the sockeye salmon stocks of this system.

The Board rejected one proposal that would have placed additional harvest restrictions on steelhead in southeast Alaska. This proposal was rejected because the Board sees no immediate conservation concern for steelhead and thus the proposal would have placed unnecessary restrictions on subsistence users.

The Board adopted 17 proposals. A number of proposals dealing with the same issue were dealt with as a package. Some proposals were adopted as submitted and others were adopted with modifications suggested by the respective Regional Council or developed during the Board's public deliberations.

All of the adopted proposals were recommended for adoption by at least one of the Regional Councils and were based on meeting customary and traditional uses, conforming with harvest practices, or protecting fish populations. Detailed information relating to justification for the action on each proposal may be found in the Board meeting transcripts, available for review at the Office of Subsistence Management, 3601 C Street, Suite 1030, Anchorage, Alaska, or on the Office of Subsistence Management Web site (http://alaska.fws.gov/asm/home.html). Additional technical clarifications and removal of excess or duplicative text have been made, which result in a more readable document.

In the Cook Inlet Fishery Management Area, we corrected the text to prohibit the use of gillnets in freshwater. This action is necessary to protect populations of rainbow trout, steelhead, and other freshwater species susceptible to over harvest and was addressed in a Correcting Amendment published June 28, 2000 (65 FR 39815). Through an administrative error, we failed to carry through with this correction in later rulemaking documents. There is no impact on subsistence users because no one uses a gillnet to fish for smelt in freshwater in this area.

In the final rule, we deleted the reference to the Holitna River in § __.27(h)(4) because the Holitna River is not within jurisdiction as identified in § __.3(b). Similarly, we also deleted reference to Tuxedni Bay in § __.24(a)(3). An opinion by the Department of the Interior Solicitor's Office concluded that the boundaries of the Alaska Maritime National Wildlife Refuge do not extend below mean high tide and that those waters are not within Federal jurisdiction as identified in § __.3. When questions of jurisdiction are brought to our attention, we immediately review the issue and make any appropriate modifications to our regulations as we have done here. In addition, we revised the regulations pertaining to specific management areas as follows:

The Board adopted one proposal affecting residents of the Yukon-Northern Fishery Management Area, resulting in the following change to the regulations found in § __.27.

• Established a drift gillnet fishery for king salmon in Districts 4B and 4C of the Yukon River.

The Board adopted two proposals affecting residents of the Kuskokwim Fishery Management Area, resulting in the following changes to the regulations found in § __.24.

• Revised the customary and traditional use determination for rainbow trout.

The Board adopted one proposal affecting residents of the Bristol Bay Fishery Management Area, resulting in the following change to the regulations found in § __.27.

• Removed the permit requirement when harvesting char and rainbow trout.

The Board adopted five proposals affecting residents of the Prince William Sound Fishery Management Area, resulting in the following changes to the regulations found in §§ __.24 and ___.27.

• Established customary and traditional use determinations for eulachon in portions of the fishery management area.

• Revised the customary and traditional use determination for salmon in the Chitina and Glennallen Subdistricts of the fishery management area.

• Established limits on the amount of salmon that may be sold in customary trade in the Upper Copper River District.

Additionally, the Board concurred in the correction of an administrative error relative to restrictions on the taking of salmon in the Prince William Sound Area.

The Board adopted nine proposals affecting residents of the Southeastern Alaska Fishery Management Area, resulting in the following changes to the regulations found in § __.27.

• Revised regulations to allow fishing with rod and reel within 300 feet of a fish ladder unless posted by the USDA Forest Service.

• Specified specific gear types allowable for the taking of salmon and steelhead.

• Established harvest limits for sockeye salmon.

• Clarified that there are generally no harvest limits for pink or chum salmon.

• Established regulations for a southeast Alaska steelhead fishery.

• Provided for the use of handlines for snagging for salmon and steelhead. Established a definition of snagging.

• Allowed the accumulation of subsistence harvest limits with sport harvest limits.

• Simplified the coho salmon harvest regulations, removed the annual harvest limit, and removed the prohibition on retaining incidentally-caught trout and sockeye salmon.

• Provided harvest regulations for cutthroat trout, rainbow trout, Dolly Varden, grayling, and brook trout.

Additionally, following consultation with the Transboundary Panel and the Pacific Salmon Commission, the Board has implemented regulations for the subsistence harvest of chinook and coho salmon in the Stikine River.

The Board finds that additional public notice under the Administrative Procedure Act (APA) for this final rule is unnecessary and contrary to the public interest. The Board has provided extensive opportunity for public input and involvement in excess of standard APA requirements, including participation in multiple Regional Council meetings, additional public review and comment on all proposals for regulatory change, and opportunity for additional public comment during the Board meeting prior to deliberation. Additionally, an administrative mechanism exists (and has been used by the public) to request reconsideration of the Board's decision on any particular proposal for regulatory change. Over the 12 years the Program has been operating, no benefit to the public has been demonstrated by delaying the effective date of regulations. A lapse in regulatory control could seriously affect the continued viability of fish and shellfish populations, adversely impact future subsistence opportunities for rural Alaskans, and would generally fail to serve the overall public interest. Therefore, the Board finds good cause pursuant to 5 U.S.C. 553(d) to make this rule effective less than 30 days after publication.

A Draft Environmental Impact Statement (DEIS) for developing a Federal Subsistence Management Program was distributed for public comment on October 7, 1991. That document described the major issues associated with Federal subsistence management as identified through public meetings, written comments, and staff analysis and examined the environmental consequences of four alternatives. Proposed regulations (Subparts A, B, and C) that would implement the preferred alternative were included in the DEIS as an appendix. The DEIS and the proposed administrative regulations presented a framework for an annual regulatory cycle regarding subsistence hunting and fishing regulations (Subpart D). The Final Environmental Impact Statement (FEIS) was published on February 28, 1992.

Based on the public comment received, the analysis contained in the FEIS, and the recommendations of the Federal Subsistence Board and the Department of the Interior's Subsistence Policy Group, the Secretary of the Interior, with the concurrence of the Secretary of Agriculture, through the U.S. Department of Agriculture-Forest Service, implemented Alternative IV as identified in the DEIS and FEIS (Record of Decision on Subsistence Management for Federal Public Lands in Alaska (ROD), signed April 6, 1992). The DEIS and the selected alternative in the FEIS defined the administrative framework of an annual regulatory cycle for subsistence hunting and fishing regulations. The final rule for Subsistence Management Regulations for Public Lands in Alaska, Subparts A, B, and C (57 FR 22940, published May 29, 1992; amended January 8, 1999, 64 FR 1276; June 12, 2001, 66 FR 31533; and May 7, 2002, 67 FR 30559) implemented the Federal Subsistence Management Program and included a framework for an annual cycle for subsistence hunting and fishing regulations.

An environmental assessment was prepared in 1997 on the expansion of Federal jurisdiction over fisheries and is available by contacting the office listed under FOR FURTHER INFORMATION CONTACT. The Secretary of the Interior, with the concurrence of the Secretary of Agriculture, determined that the expansion of Federal jurisdiction did not constitute a major Federal action significantly affecting the human environment and has therefore signed a Finding of No Significant Impact.

The intent of all Federal subsistence regulations is to accord subsistence uses of fish and wildlife on public lands a priority over the taking of fish and wildlife on such lands for other purposes, unless restriction is necessary to conserve healthy fish and wildlife populations. A Section 810 analysis was completed as part of the FEIS process. The final Section 810 analysis determination appeared in the April 6, 1992, ROD, which concluded that the Federal Subsistence Management Program may have some local impacts on subsistence uses, but the program is not likely to significantly restrict subsistence uses.

The information collection requirements contained in this rule have been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and assigned OMB control number 1018-0075, which expires August 31, 2006. We may not conduct or sponsor, and you are not required to respond to, a collection of information request unless it displays a currently valid OMB control number.

Regulatory Planning and Review (Executive Order 12866)—In accordance with the criteria in Executive Order 12866, this rule is not a significant regulatory action subject to OMB review. OMB makes this determination. This action will not have an annual economic effect of $100 million or adversely affect any economic sector, productivity, competition, jobs, the environment, or other units of government. Therefore, a cost-benefit and economic analysis is not required. This action will not create inconsistencies with other agencies' actions or otherwise interfere with an action taken or planned by another agency. This action will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. This action will not raise novel legal or policy issues.

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) requires preparation of flexibility analyses for rules that will have a significant economic effect on a substantial number of small entities, which include small businesses, organizations, or governmental jurisdictions. The Departments have determined that this rulemaking will not have a significant economic effect on a substantial number of small entities within the meaning of the Regulatory Flexibility Act.

This rulemaking will impose no significant costs on small entities; the exact number of businesses and the amount of trade that will result from this Federal land-related activity is unknown. The aggregate effect is an insignificant positive economic effect on a number of small entities, such as tackle, boat, and gasoline dealers. The number of small entities affected is unknown; however, the fact that the positive effects will be seasonal in nature and will, in most cases, merely continue preexisting uses of public lands indicates that the effects will not be significant.

In general, the resources harvested under this rule will be consumed by the local harvester and do not result in a dollar benefit to the economy. However, we estimate that 24 million pounds of fish (including 8.3 million pounds of salmon) are harvested by the local subsistence users annually and, if given a dollar value of $3.00 per pound for salmon (Note: $3.00 per pound is much higher than the current commercial value for salmon) and $0.58 per pound for other fish, would equate to about $34 million in food value Statewide.

Title VIII of ANILCA requires the Secretaries to administer a subsistence preference on public lands. The scope of this program is limited by definition to certain public lands. Likewise, these regulations have no potential takings of private property implications as defined by Executive Order 12630.

The Service has determined and certifies pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that this rulemaking will not impose a cost of $100 million or more in any given year on local or State governments or private entities. The implementation of this rule is by Federal agencies, and no cost is involved to any State or local entities or Tribal governments.

The Service has determined that these final regulations meet the applicable standards provided in Sections 3(a) and 3(b)(2) of Executive Order 12988 (Civil Justice Reform).

In accordance with Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. Title VIII of ANILCA precludes the State from exercising management authority over wildlife resources on Federal lands.

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), 512 DM 2, and E.O. 13175, we have evaluated possible effects on Federally recognized Indian tribes and have determined that there are no effects. The Bureau of Indian Affairs is a participating agency in this rulemaking.

On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, or use. This Executive Order requires agencies to prepare Statements of Energy Effects when undertaking certain actions. As this rule is not a significant regulatory action under Executive Order 13211, affecting energy supply, distribution, or use, this action is not a significant action and no Statement of Energy Effects is required.

William Knauer drafted these regulations under the guidance of Thomas H. Boyd, of the Office of Subsistence Management, Alaska Regional Office, U.S. Fish and Wildlife Service, Anchorage, Alaska. Taylor Brelsford, Alaska State Office, Bureau of Land Management; Rod Simmons, Alaska Regional Office, U.S. Fish and Wildlife Service; Bob Gerhard, Alaska Regional Office, National Park Service; Dr. Glenn Chen, Alaska Regional Office, Bureau of Indian Affairs; and Steve Kessler, USDA-Forest Service, provided additional guidance.

Throughout this document wherever “we,” or “our” are used we mean EPA. On March 26, 2004, (69 FR 15687), we published a final rulemaking action announcing the delegation of authority of certain NESHAPs to the Louisiana Department of Environmental Quality. EPA received no public comments on the direct final rule, therefore, the effective date of action was April 26, 2004. Subsequently, the Louisiana Department of Environmental Quality notified EPA that we had not included the delegation of subpart M—Asbestos in the chart detailing the current part 61 standards delegated to Louisiana. The original part 61 delegation to Louisiana occurred on October 14, 1983, with formal notification in the Federal Register on February 7, 1984 (49 FR 4471). In the notification, Louisiana was authorized to assume NESHAP partial delegation responsibilities for future standards and requirements. This administrative rulemaking action reflects EPA's delegation of subpart M—Asbestos to Louisiana. Section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. We have determined that there is good cause for making today's rule final without prior proposal and opportunity for comment because we are merely correcting a historical delegation that occurred in a previous action. Thus, notice and public procedure are unnecessary. We find that this constitutes good cause under 5 U.S.C. 553(b)(B). Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)). Because the agency has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the Administrative Procedures Act or any other statute as indicated in the Supplementary Information section above, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C 601 et seq.), or to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of UMRA. This rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (59 FR 22951, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of governments, as specified by Executive Order 13132 (64 FR 43255, August 10, 1999). This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant. This technical correction action does not involve technical standards; thus the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. The rule also does not involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994). In issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct, as required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996). EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1998) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The Congressional Review Act (5 U.S.C. 801 et seq.), as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary or contrary to the public interest. This determination must be supported by a brief statement. 5 U.S.C. 808(2). As stated previously, EPA had made such a good cause finding, including the reasons therefore, and established an effective date of March 21, 2005. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This correction to 40 CFR 61.04(c)(6)(ii) for Louisiana is not a “major rule” as defined by 5 U.S.C. 804(2).

Subsequent to the publication of the Medicare Prescription Drug Benefit (Part D) final rule on January 28, 2005 (70 FR 4194), we have received inquiries from parties interested in offering a prescription drug plan (PDP) concerning what organizational requirements they must meet in order to be eligible to offer such a plan. Several health plans, each licensed by a State as a risk-bearing entity, have inquired as to whether they could jointly enter into a contract with us to offer a single PDP in a multistate region. The participating health plans would contract with each other to create a single “joint enterprise.” They have asked us whether such a joint enterprise could be considered an “entity” under section 1860D-12(a)(1) of the Act, for purposes of offering a PDP.

The statute generally requires that the “entity” be licensed by the State as a risk bearing entity where it offers benefits. The health plans seeking jointly to offer a PDP propose to meet this requirement through the State license each participating health plan holds in the State in which it does business. Each plan would be at risk, and fully responsible, for each PDP enrollee in its State, or portion of a State in which it is licensed and operating. Together, the entire region will be covered by an insurer licensed by the State to bear risk in the State where the enrollee lives.

We have determined that such a joint enterprise could be treated as a single “entity” for purposes of offering a PDP, as long as the enterprise as a whole meets all applicable Medicare requirements, and there is no substantive difference between this arrangement and a traditional entity from a Medicare enrollee's perspective. This means that the joint enterprise must, at a minimum: (1) Enter into a single contract under which it was accountable, through its participants individually or in the aggregate, for meeting all applicable Medicare requirements, including, since a regional entity cannot continue to operate in a service area that is less than the entire region, providing us with a description of the contracting entity's plan in the event that one or more parties in the joint enterprise terminates its participation (or is terminated by another party) in the enterprise in a contract year; (2) submit a single bid covering the entire PDP Region, which includes a uniform benefit, uniform cost-sharing, as well as a uniform premium, including how the joint enterprise will allocate risk among the multiple parties in the region; (3) offer a region-wide network of providers that is accessible to all enrollees in the plan, regardless of where in the region they live; (4) market the plan under a single name throughout the region; and (5) provide uniform enrollee customer service and appeal and grievance rights throughout the region. In addition, where the regulations specifically govern the activities of the entity, such as the requirement for fidelity bonds for officers, or certifications associated with receipt of payment, each State-licensed plan comprising the joint enterprise will be required to meet such requirements individually. We will issue operational guidance concerning the process by which we will make payment to these joint enterprise entities. The preamble to the Part D final rule scheduled to take effect on March 22, 2005 is hereby deemed to include the foregoing clarification concerning our interpretation of the word “entity.” We may also issue further guidance on how individual requirements (such as, for example, those related to termination, apportionment of liability, and the imposition of sanctions) will apply to joint enterprises and the plans participating in such enterprises.

Section 902 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA) amended section 1871(a) of the Act and requires the Secretary, in consultation with the Director of the Office of Management and Budget, to establish and publish timelines for the publication of Medicare final regulations based on the previous publication of a Medicare proposed or interim final regulation. Section 902 of the MMA also states that the timelines for these regulations may vary but shall not exceed 3 years after publication of the preceding proposed or interim final regulation except under exceptional circumstances.

This final rule provides, prior to the effective date of the final regulations published on January 28, 2005, interpretations of the final regulations. In addition, this final rule was published within the 3-year time limit imposed by section 902 of the MMA. Therefore, we believe that the final rule is in accordance with the Congress' intent to ensure timely publication of final regulations.

Subsequent to the publication of the Prescription Drug Benefit (Part D) final rule on January 28, 2005, we have received inquiries from parties about our discussion of the actuarial equivalence standard, as applied to a single retiree group health plan with multiple benefit options under § 423.884(d)(5)(iv) of the final rule. Specifically, these parties have inquired as to whether an employee health plan sponsor could apply the aggregate net value test under that rule to a chosen subset of those benefit options that meet the gross value test, rather than to all of them. For the reasons that follow, while we had not considered this option when we drafted the final rule, we find that it will be consistent with the principle of letting the sponsor identify the benefit options to which it wants the net value test applied. We accordingly believe that this option should be added to the two options discussed in the preamble to the final rule.

Section 423.884(d)(5)(iv) of the final rule provides that for a sponsor maintaining employment-based retiree health coverage with two or more benefit options, a sponsor must attest that all benefit options for which the sponsor claims the retiree subsidy separately satisfy the gross value test, and either separately or in the aggregate satisfy the net value test. This establishes the principle that the sponsor can identify the benefit options for which it is potentially seeking a subsidy. After considering the above inquiry, we believe that § 423.884(d)(5)(iv) can be read to permit a sponsor to claim the retiree subsidy for: (1) All benefit options that separately meet the gross value test and the net value test; (2) all benefit options that separately meet the gross value test and in the aggregate meet the net value test; and (3) a subset of the benefit options that separately meet the gross value test and in the aggregate meet the net value test. For example, if a retiree group health plan consists of five benefit options, all of which separately meet the gross value test, the plan could claim the subsidy for: (1) Each of the benefit options that separately meets the net value test; (2) all five benefit options if in the aggregate they meet the net value test; or (3) a subset of the five benefit options if in the aggregate this subset meet the net value test (for example, three of the five benefit options). If a sponsor should choose to aggregate a subset of the benefit options in a plan in order to meet the net value test, it could not collect the subsidy for the remaining options in the plan if the remaining options do not pass the net value test individually or in the aggregate.

In response to comments on the application of the actuarial equivalence standard to retiree group health plans with multiple benefit options, the preamble to the January 28, 2005 final rule (70 FR 4409) stated that “the final rule provides sponsors with flexibility by allowing them to choose whether to apply the net prong of the actuarial equivalence test for each benefit option, or to apply the net prong of the actuarial equivalence test on an aggregated basis for all benefit options within a group health plan that satisfy the gross test.” While we believe that both these options should be available, limiting sponsors to these two options will foreclose sponsors from claiming the retiree subsidy for a subset of the benefit options separately meeting the gross value that in the aggregate meet the net value test (the third option described above). We believe the following statement is a more accurate reflection of our policy of maximizing sponsor choice and flexibility, as reflected in the final rule at § 423.884(d)(5)(iv): “The final rule provides sponsors with flexibility by allowing them to choose whether to apply the net prong of the actuarial equivalence test for each benefit option, or to apply the net prong of the actuarial equivalence test on an aggregated basis to two or more benefit options within a group health plan that satisfy the gross test and for which the sponsor is claiming the retiree subsidy.” The preamble to the Part D final rule scheduled to take effect on March 22, 2005 is hereby amended to include the foregoing alternative interpretation in place of that set forth in the final rule published on January 28, 2005 concerning application of the actuarial equivalence standard to employment-based retiree health coverage with multiple benefit options.

We believe our policy, as described in this final rule, is a reasonable extension of the interpretation of section 1860D-22(a)(2)(A) of the Act set forth in the final rule. Section 1860D-22(a)(2)(A) of the Act provides that a sponsor's attestation regarding the actuarial equivalence of the prescription drug coverage under its plan to standard prescription drug coverage under Part D shall be made in accordance with the processes and methods described in section 1860D-11(c) of the Act. As noted elsewhere in the preamble, we interpret section 1860D-11(c) of the Act as providing the Secretary with broad discretion to establish more than one process for determining the actuarial valuation of prescription drug coverage. Moreover, we believe the reference to “the actuarial value of prescription drug coverage under the [sponsor's] plan” in section 1860D-22(a)(2)(A) of the Act is ambiguous, and reasonably could be interpreted to mean the actuarial value of a single benefit option or multiple benefit options within the group health plan in the aggregate. At this point in time, we elect not to choose among these reasonable interpretations of section 1860D-22(a)(2)(A) of the Act, and instead provide sponsors with flexibility that will accommodate their offering a wide variety of benefit options for their retirees while promoting our stated goals of maximizing the number of beneficiaries that retain their employer/union-sponsored retiree drug coverage while avoiding windfalls to sponsors.

The final rule at § 423.286(d)(3) contains our formula for calculation of the late enrollment penalty. That section states that for 2006 and 2007 the penalty equals one percent of the base beneficiary premium (computed under § 423.286(c)) “unless another amount is specified in a separate issuance based on available analysis or other information as determined by the Secretary.” The same language for § 423.286(d)(3) also was included in the proposed rule published on August 3, 2004. In the proposed rule, at 69 FR 46684, we provided an example stating that if the penalty amount is $.36 per month in 2004, and a beneficiary is subject to 12 months of penalty, the beneficiary will pay an additional $.36 * 12 or $4.32 per month as long as they are enrolled in Part D. We are clarifying in this final rule that the example provided in the proposed rule conflicted with regulatory language and could not be correct because it did not account for the fact that the base beneficiary premium, upon which the penalty is based, changes on an annual basis. Given these changes, the reference to the base beneficiary premium in § 423.286(d) must be read to mean that as the base beneficiary premium changes, the late enrollment penalty, when set at one percent of the amount, also changes. Thus, assuming the one percent rule, the late enrollment penalty for 2007 would be based on the amount of the base beneficiary premium for 2007. In addition, during the comment period on the proposed rule, we received comments asking how the late enrollment penalty would be coordinated with the late enrollment penalty for Part B, and whether a one percent penalty would be sufficient to control for adverse selection. Our clarification also responds to these comments because it ensures that the late enrollment penalty is calculated in a manner that coordinates more properly with the Part B penalty, where the penalty is always a percentage of the current year's premium. Finally, in response to some the commenters' statements that any late enrollment penalty should properly account for adverse selection, the statute provides that the late enrollment penalty is the greater of an actuarially determined amount or one percent for each uncovered month. Given the newness of the program and the lack of data to determine an actuarially based penalty, we are initially implementing the penalty based on the one percent methodology. Once we have sufficient program experience, we will reassess this policy. To the extent that an actuarially determined amount provides a greater disincentive to late enrollment, we will move to that methodology given the statutory requirement that the penalty be the larger amount. The preamble to the Part D final rule scheduled to take effect on March 22, 2005 is hereby deemed to include the foregoing clarification.

In the preamble to the final Medicare Prescription Drug Benefit regulation (FR 70 4194), published on January 28, 2005, we responded to comments on the need expressed by a number of commenters supporting a transition period for beneficiaries, particularly full-benefit dual eligibles who are transitioning to the Medicare Part D benefit from other drug coverage. We responded by agreeing with the commenters that Part D plans should have processes in place to transition current enrollees from their old coverage to their new Part D plan coverage, particularly in cases in which the beneficiary is taking Part D drugs that are not covered on the plan's formulary at time of enrollment. We further responded that “we envision that the need for such a transition period will be limited for several reasons.” We would like to clarify what we meant by this latter statement. We did not intend to signal with this statement that there should be a very limited application of, need for or duration of transition plans. What we intended to say is that there are other beneficiary protections in the formulary review and exceptions and appeals processes that would meet some of the same needs.

Instead, we know that there are a variety of circumstances in which a beneficiary will need to be appropriately transitioned from their currently prescribed drugs to alternative drugs covered under the Part D plan's formulary. It is for these special circumstances that we require Part D plans to have an established transition process. To further clarify this transition issue, we provide a brief discussion of the importance we place on protecting beneficiaries as they transition from a prior plan's drug coverage to a new Part D plan's coverage and an overview of our expectations for Part D plans as they develop their transitions processes.

We strongly believe that this is an important issue not only for beneficiaries during the initial transition to the Medicare drug benefit on January 1, 2006, but also for new enrollees after the initial implementation of the program, and for individuals who switch from one plan to another after implementation of the benefit. We also believe it is important to differentiate the transition process to appropriately address the different needs of beneficiaries moving between treatment settings due to changes in level of care.

As noted in the preamble and in § 423.120(b)(3) of our final rule, Part D plans are required to establish an appropriate transition process for new enrollees who are transitioning to Part D from other prescription drug coverage, and whose current drug therapies may not be included in their Part D plan's formulary. Also as noted in the preamble we will review Part D plans' transition processes. Our proposed approach to evaluating a transition process review is consistent with our intent to provide potential plan sponsors with maximum flexibility to develop their own formularies in order to manage their prescription drug benefit offerings. We expect plans to document how it will ensure that new enrollees, who are stabilized on drugs that are not on the plan's formulary and that are known to have risks associated with any changes in the prescribed regimen, will continue to have access to medically necessary drugs without adverse health consequences. In addition, it is important that the transition process take into account the unique needs of residents of long term care (LTC) facilities enrolling into a new Part D plan, especially given the fact that a large proportion of residents may be dually eligible for both Medicare and full Medicaid benefits, and therefore, could be auto-enrolled into the plan without making an affirmative selection based on the individual's existing treatment needs.

This document does not impose information collection and recordkeeping requirements. Consequently, it need not be reviewed by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 35).

We ordinarily provide an effective date 30 days after the publication of a final rule in the Federal Register. We can waive this delay, however, if we find good cause that it is impracticable, unnecessary, or contrary to the public interest, and we incorporate a statement of this finding and the reasons for it in the rule issued. The Medicare Prescription Drug Benefit final rule goes into effect on March 22, 2005. This final rule clarifies our interpretations in several areas that are deemed to be included in the January 28, 2005 final rule. We believe that delaying the effective date of this interpretation would be contrary to the public interest because it would shorten the already tight time frame for the enrollment of health plans into the Part D program. Therefore, we believe it is necessary to have this interpretation of our existing policy take effect at the same time as the Medicare Prescription Drug Benefit final rule. Accordingly, we believe there is good cause to waive the 30-day delay in effective date, and this interpretation will be effective on the effective date of the Medicare Prescription Drug Benefit final rule, March 22, 2005.

We have examined the impact of this rule as required by Executive Order 12866 (September 1993, Regulatory Planning and Review), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), and Executive Order 13132.

Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any one year). This rule does not reach the economic threshold and thus is not considered a major rule.

The RFA requires agencies to analyze options for regulatory relief of small businesses. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and government agencies. Most hospitals and most other providers and suppliers are small entities, either by nonprofit status or by having revenues of $6 million to $29 million in any one year. Individuals and States are not included in the definition of a small entity. We are not preparing an analysis for the RFA because we have determined that this rule will not have a significant economic impact on a substantial number of small entities.

In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a Metropolitan Statistical Area and has fewer than 100 beds. We are not preparing an analysis for section 1102(b) of the Act because we have determined that this rule will not have a significant impact on the operations of a substantial number of small rural hospitals.

Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule that may result in expenditure in any one year by State, local, or tribal governments, in the aggregate, or by the private sector, of $110 million. This rule will have no consequential effect on the governments mentioned or on the private sector.

Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. Since this regulation does not impose any costs on State or local governments, the requirements of E.O. 13132 are not applicable.

In accordance with the provisions of Executive Order 12866, this regulation was reviewed by the Office of Management and Budget.

Subsequent to the publication of the Medicare Advantage (MA) final rule in the Federal Register on January 28, 2005 (70 FR 4588), we have received inquiries from parties interested in offering an MA Regional Plan concerning what organizational requirements they must meet in order to be eligible to offer such a plan. Several health plans, each licensed by a State as a risk-bearing entity, have inquired as to whether they could jointly enter into a contract with us to offer an MA Regional Plan in a multistate region. The participating health plans wish to contract with each other to create a single “joint enterprise.” They have asked us whether such a joint enterprise could be considered an “entity” under sections 1859(a)(1) and 1855(a)(1) of the Social Security Act, for purposes of offering an MA plan.

The statute generally requires that the “entity” be licensed by the State as a risk bearing entity where it offers benefits. The health plans seeking jointly to offer an MA Regional Plan propose to meet this requirement through the State license that each participating health plan holds in the State in which it does business. Each plan would be at risk for, and fully responsible for, each MA plan enrollee in its State, or a portion of a State in which it is licensed and operating. Together, the entire region would be covered by an insurer licensed by the State to bear risk where the enrollee lives.

In considering this proposal, we have determined that such a joint enterprise could be treated as a single “entity” for purposes of offering an MA Regional Plan, as long as the enterprise as a whole meets all applicable Medicare requirements, and there is no substantive difference between this arrangement and a traditional entity from a Medicare enrollee's perspective. This means that the joint enterprise must, at a minimum—(1) enter into a single contract under which it was accountable, through its participants individually or in the aggregate, for meeting all applicable Medicare requirements, including, since a regional entity cannot continue to operate in a service area that is less than the entire region, providing us with a description of the contracting entity's plan in the event that one or more parties in the joint enterprise terminates their participation (or are terminated by another party) in the enterprise in a contract year; (2) submit a single bid covering the entire MA Region, which would include a uniform benefit, uniform cost-sharing, as well as a uniform premium, and information about how the joint enterprise will allocate risk among the multiple parties in the region; (3) offer a region-wide network of providers that is accessible to all enrollees in the plan, regardless of where in the region they live; (4) market the plan under a single name throughout the region; and (5) provide uniform enrollee customer service and appeal and grievance rights throughout the region. In addition, where the regulations specifically govern the activities of the entity, such as the requirement for fidelity bonds for officers, or certifications associated with receipt of payment, each State-licensed plan comprising the joint enterprise would be required to meet such requirements individually. We will issue operational guidance concerning the process by which we will make payment to these joint enterprise entities. The preamble to the January 28, 2005 MA final rule scheduled to take effect on March 22, 2005 is deemed to include the foregoing clarification concerning our interpretation of the word “entity.” We may also issue further guidance on how individual requirements (such as, for example, those related to termination, apportionment of liability, and the imposition of sanctions) will apply to joint enterprises and the plans participating in such enterprises.

Section 902 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA) amended section 1871(a) of the Act and requires the Secretary, in consultation with the Director of the Office of Management and Budget, to establish and publish timelines for the publication of Medicare final regulations based on the previous publication of a Medicare proposed or interim final regulation. Section 902 of the MMA also states that the timelines for these regulations may vary but shall not exceed 3 years after publication of the preceding proposed or interim final regulation except under exceptional circumstances.

This final rule interprets provisions set forth in the January 28, 2005 final regulation. In addition, this final rule has been published within the 3-year time limit imposed by section 902 of the MMA. Therefore, we believe that the final rule is in accordance with the Congress' intent to ensure timely publication of final regulations.

We ordinarily provide an effective date 30 days after the publication of a final rule in the Federal Register. We can waive this delay, however, if we find good cause that it is impracticable, unnecessary, or contrary to the public interest, and we incorporate a statement of this finding and the reasons for it in the rule issued. The MA final rule sets forth requirements for offering a regional MA plan beginning on January 1, 2006.

Therefore, those wishing to offer a regional MA plan must submit an application, receive CMS approval, and comply with all applicable requirements in time to offer the plan on January 1, 2006. We believe that delaying the effective date of this interpretation would be contrary to the public interest because it would shorten the already tight time frame for implementing a regional MA plan for some potential applicants. Therefore, we believe it is necessary to have this interpretation of our existing policy take effect at the time as the MA final rule.

Accordingly, we believe there is good cause to waive the 30-day delay in effective date, and this interpretation will be effective on the effective date of the MA final rule, March 22, 2005.

This document does not impose information collection and recordkeeping requirements. Consequently, it need not be reviewed by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 35).

We have examined the impact of this rule as required by Executive Order 12866 (September 1993, Regulatory Planning and Review), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), and Executive Order 13132.

Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year). This rule does not reach the economic threshold and thus is not considered a major rule.

The RFA requires agencies to analyze options for regulatory relief of small businesses. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and government agencies. Most hospitals and most other providers and suppliers are small entities, either by nonprofit status or by having revenues of $6 million to $29 million in any 1 year. Individuals and States are not included in the definition of a small entity. We are not preparing an analysis for the RFA because we have determined that this rule will not have a significant economic impact on a substantial number of small entities.

In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a Metropolitan Statistical Area and has fewer than 100 beds. We are not preparing an analysis for section 1102(b) of the Act because we have determined that this rule will not have a significant impact on the operations of a substantial number of small rural hospitals.

Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule that may result in expenditure in any 1 year by State, local, or tribal governments, in the aggregate, or by the private sector, of $110 million. This rule will have no consequential effect on the governments mentioned or on the private sector.

Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has federalism implications. Since this regulation does not impose any costs on State or local governments, the requirements of E.O. 13132 are not applicable.

In accordance with the provisions of Executive Order 12866, this regulation was reviewed by the Office of Management and Budget.

Regulations implementing the FMP appear at 50 CFR part 648, subparts A and J. Regulations requiring annual specifications are found at § 648.160. The FMP requires that the Mid-Atlantic Fishery Management Council (Council) recommend, on an annual basis, total allowable landings (TAL) for the fishery, consisting of a commercial quota and recreational harvest limit.

The assessment and surplus production model approach was approved by the Council's Scientific and Statistical Committee for updating the analyses used by the Atlantic States Marine Fisheries Commission (Commission) and the Council's Bluefish Monitoring Committee (Monitoring Committee) for annual quota setting. Based on the recommendations of the Monitoring Committee, the Council's Bluefish Committee makes a recommendation to the Council, which in turn makes a recommendation to the Regional Administrator. The Regional Administrator reviews the recommendation and may revise it, if necessary, to achieve the FMP objectives. In addition, because the FMP is a joint plan with the Commission, the Commission's Bluefish Board adopts complementary measures through a state-by-state quota system. In August 2004, the Monitoring Committee and Council concurred that the current regulations are sufficient to ensure that the 2005 TAL would not be exceeded.

This rule implements final specifications for the Atlantic bluefish fishery for 2005 that are unchanged from the proposed specifications published on February 8, 2005 (70 FR 6608). A complete discussion of the development of these specifications is included in the proposed rule and is not repeated here. These measures are the same as those implemented for 2005 by the states under the Commission's Interstate Fishery Management Plan.

In June 2004, the Northeast Fisheries Science Center (NEFSC) Stock Assessment Workshop (SAW 39) reviewed an updated assessment for bluefish. The peer review process of SAW 39 rejected the revised assessment results, concluding that the model provided no concrete evidence of bluefish stock status. The workshop panelists advised that, because the 2003 assessment was rejected and the status of the stock unknown, the total allowable landing specifications should continue at 2004 levels (see ADDRESSES for link to panelist reports).

The FMP requires that the annual harvest be set based upon either the target fishing mortality rate (F) specified in the FMP (0.31 for 2005) or the most recent estimate of F, whichever is lower. The 2005 recommendation is based on the estimate of F from 2002; F = 0.184. More recent estimates of F are not available because stock assessments have been considered unreliable. Projection results indicated that the bluefish stock biomass would increase from an estimated 129.367 million lb (58.7 million kg) in 2003, to 165.853 million lb (75.2 million kg) in 2004. The estimated 2004 biomass had an associated yield of 34.215 million lb (15.5 million kg) in 2004. The best information available indicates that the Total Allowable Catch (TAC) of 34.215 million lb (15.5 million kg) could achieve the target fishing mortality rate (F = 0.184) in 2005, based on an estimated biomass of 207.785 million lb (94.2 million kg) in 2005.

The TAL for 2005 is derived by subtracting estimated discards of 3.362 million lb (1.542 million kg) from the TAC. After subtracting discards, the 2005 TAL is roughly 4 percent less than that allocated in 2004, or 30.853 million lb (13.994 million kg). Based strictly on the percentages specified in the FMP (17 percent commercial, 83 percent recreational), the commercial quota would be 5.245 million lb (2.379 million kg), and the recreational harvest limit would be 25.608 million lb (11.615 million kg). In addition, up to 3 percent of the TAL may be allocated as RSA. The discussion below describes how the TAL is allocated to the commercial and recreational sectors, and then adjusted downward proportionally to account for any approved bluefish RSA.

The FMP specifies that, if 17 percent of the TAL is less than 10.50 million lb (4.76 million kg), and the recreational fishery is not projected to land its harvest limit for the upcoming year, the commercial fishery may be allocated up to 10.50 million lb (4.76 million kg) as its quota, provided that the combination of the projected recreational landings and the commercial quota does not exceed the TAL. Consistent with the FMP and regulations governing the bluefish fishery, the Council recommended, and NMFS approved, a transfer of 5.254 million lb (2.383 million kg) from the initial 2005 recreational allocation of 25.608 million lb (11.615 million kg), resulting in a recreational harvest limit of 20.353 million lb (9.232 million kg). This transfer is based on recreational harvest information over the last 10 years that indicates bluefish landings have ranged between 8.3 and 15.5 million lb (3.74 and 7.05 million kg). In addition, there is no reason to expect that landings will increase to the recreational harvest limit of 25.608 million lb (11.615 million kg) in 2005. Therefore, NMFS increases the 2005 commercial allocation for bluefish to 10.5 million lb (4.76 million kg), the same as was allocated in 2004. The increase is being implemented by the states under the Commission's Interstate FMP for Atlantic Bluefish.

A request for proposals was published in the Federal Register to solicit research proposals for 2005 that could utilize RSA, based on research priorities identified by the Council (March 9, 2004; 69 FR 10990). One research project that would utilize bluefish RSA quota was approved by the NOAA Grants Office. The FMP allows the Council and NMFS to allocate up to 3 percent of the TAL as RSA, to support fishery research. Therefore, a 297,750-lb (135,057-kg) RSA is specified for 2005; less than 1 percent of the total allowed under the FMP. Accounting for the RSA, in an amount proportional to the commercial and recreational allocation after the quota transfer, the final adjusted commercial quota for 2005 is 10.398 million lb (4.716 million kg) and the adjusted recreational harvest limit is 20.157 million lb (9.143 million kg).

A possession limit of 15 fish will be maintained for the 2005 FY.

Proposed state commercial allocations for the recommended 2005 commercial quota are shown in Table 1 (below), based on the percentages specified in the FMP. The table shows the allocations both before and after the deduction made to reflect the proposed RSA allocation.

The following two comments were received concerning the February 8, 2005 (70 FR 6608) proposed rule.

Comment: One commenter expressed general support for environmental reforms and marine sanctuaries. The commenter indicated that the commercial fishery landings information was unreliable and biased and that these catch statistics result in correspondingly high quota allocations to the commercial sector. The commenter suggested that the TAC be reduced by 50 percent and by 10 percent in each subsequent year. The commenter did not support the use of research quotas.

Response: This final rule is designed to provide for the fair and efficient use of the Federal bluefish quotas. While NMFS acknowledges the importance of the issues raised by the commenter, those of a general nature are outside the scope of this rulemaking. The commenter gave no specific rationale for why the quotas ought to be reduced. There is no known scientific basis for reducing the quotas as suggested by the commenter. The reasons presented by the Council and NMFS for recommending these final specifications are discussed in the preambles to both the proposed and final rules, and sufficient analysis is contained within the supporting documents. This final rule implements measures to reduce bluefish fishing mortality to levels less than those prescribed under the FMP in year 7 of the stock rebuilding plan. These specifications were developed based on the best information available at the time, including, but not limited to: Commercial and recreational catch/landing statistics, current estimates of fishing mortality, stock abundance, discards for the recreational fishery, and juvenile recruitment. Also, the research quota reduces proportionally both the recreational and commercial catch allocations, and provides a unique and equitable mechanism to provide funding for fisheries research while maintaining the TAL at a level that is intended to prevent overfishing of the bluefish stock.

Comment 2: A recreational fishermen expressed opposition to restricting the recreational harvest limits through possession limits without similar restrictions being placed on the commercial sector. Furthermore, the recreational fishermen commented that the recreational creel limit should be reduced from 15 to 10 fish. This comment was conditioned as follows: (1) If there were to be reductions in recreational limits, the commercial fishery should not receive any complementary increases in quota; or (2) if the recreational harvest limit were to remain unchanged, there should be an allowance for no more than 10 adult-sized fish (the remainder would be juveniles).

Response: The Commission and the Council agreed that a possession limit of 15 fish per person is appropriate to limit bluefish mortality to sustainable levels and further rebuild the bluefish stock. Furthermore, the Council recommended, and NMFS, in an exercise of its discretion, transferred quota from the recreational sector to the commercial sector in accordance with the FMP guidelines. Based on the most recent projections of recreational landings, NMFS is confident that the recreational fishery will not land its harvest limit for the upcoming year; therefore, the transfer is allowed.

This action is authorized by 50 CFR part 648 and has been determined to be not significant for purposes of Executive Order 12866.

Included in this final rule is the Final Regulatory Flexibility Analysis (FRFA) prepared pursuant to section 604(a) of the Regulatory Flexibility Act (RFA). The FRFA describes the economic impact that this final rule will have on small entities and incorporates the IRFA, which is summarized in the proposed rule, the comments and responses to the proposed rule (70 FR 6608, February 8, 2005), and the analyses completed in support of this action. A copy of the EA, RIR, and IRFA are available from the Council (see ADDRESSES).

The preamble to the proposed rule included a detailed summary of the analyses contained in the IRFA, and that discussion is not repeated here.

A description of the reasons why this action is being considered, and the objectives of, and legal basis for, the final rule is found in the preamble to this final rule.

Two comments were submitted on the proposed rule, but were not specific to the IRFA or the economic effects of the rule. NMFS has responded to the comments in the Comments and Responses section of the preamble to this final rule. No changes were made to the final rule as a result of the comments received.

An active participant in the commercial bluefish fishery sector is defined as any vessel that reported having landed one or more pounds of bluefish to NMFS-permitted dealers during calendar year 2003. Vessels fishing for bluefish with a Federal permit intending to sell their catch must do so to NMFS-permitted dealers. All vessels affected by this rulemaking have gross receipts less than $3.5 million and are considered to be small entities under the RFA (up to $3.5 million or $5.0 million in gross annual receipts for commercial and recreational activity, respectively). Since there are no large entities participating in this fishery, there are no disproportionate effects resulting from small versus large entities. Since costs are not readily available, vessel profitability cannot be determined directly. Therefore, changes in gross revenue were used as a proxy for profitability.

Of the active, federally permitted vessels in 2003, 856 landed bluefish from Maine to North Carolina. Dealer data do not cover vessel activity from South Carolina to Florida. South Atlantic Trip Ticket Report data indicate that 871 vessels landed bluefish in North Carolina in 2003, including federally permitted vessels and those fishing only in state waters. These data also indicate that bluefish landings in South Carolina and Georgia represented less than 0.1 percent of total landings. Therefore, it is assumed that no vessels landed bluefish from those states. According to South Atlantic Trip Ticket Report data, 413 commercial vessels landed bluefish to dealers on Florida's east coast in 2003 (this may include vessels fishing only in state waters).

In addition, in 2003, approximately 2,063 party/charter vessels may have been active and/or caught bluefish in either state or Federal waters. All of these vessels are considered small entities under the RFA, having gross receipts of less than $5 million annually. Since the recreational possession limits will remain at 15 fish per person, there should be no impact on demand for party/charter vessel fishing, and, therefore, no impact on revenues earned by party/charter vessels.

No additional reporting, recordkeeping, or other compliance requirements are included in this final rule.

Specification of commercial quota, recreational harvest levels, and possession limits is constrained by the conservation objectives of the FMP, under the authority of the Magnuson-Stevens Fishery Conservation and Management Act. However, none of the alternatives to these final specifications would further mitigate economic impacts to vessels engaged in the fishery more than the chosen alternative.

The Council analyzed three alternatives. The TAL recommendation and RSA are unchanged in the alternatives, as the TAL is the level that would achieve the target F in 2005 and the RSA is the amount approved through the grants process. The difference between the preferred alternative (Alternative 1) and Alternatives 2 and 3, therefore, relates only to the manner in which the overall TAL is allocated between the commercial and recreational components of the bluefish fishery. These allocations and harvest limits include the RSA adjustment. Under Alternative 1, the commercial quota allocation is 10.398 million lb (4.716 million kg), and the recreational harvest limit is 20.157 million lb (9.143 million kg). Under Alternative 2, the commercial quota allocation would be 5.194 million lb (2.356 million kg) and the recreational harvest limit would be 25.361 million lb (11.504 million kg). Under Alternative 3, the commercial quota allocation would be 9.490 million lb (4.305 million kg) with a recreational harvest limit of 21.065 million lb (9.555 million kg).

The preferred commercial quota alternative represents a 1 percent decrease from the 2004 commercial quota, and is attributed to a difference in discards (the TAC and RSA remain unchanged from last year). The 2005 recreational harvest limit under this alternative would be 5 percent lower than the recreational harvest limit specified for 2004. However, the recreational harvest limit would still be approximately twice the recreational landings in 2003. Bluefish landings for the 1994-2003 period, ranged from 8.3 million lb (3.743 million kg) to 15.541 million lb (7.049 million kg). Comparing the high end of this range to the recreational harvest limits specified in 2004, landings were 7 percent lower than the limit specified for this year (21.150 million lb (9.59 million kg)). A projection based on preliminary recreational data for 2004 indicates that landings will be 22 percent lower than the recreational harvest limit specified for 2004. Based on recreational landing trends, it is anticipated that the recreational fishing sector will land less than 83 percent of the recreational harvest limit for 2005. Therefore, under Alternative 1, no vessels would realize significant revenue reductions.

A total of 853 vessels were projected to incur revenue losses as a result of the proposed commercial quota allocation, with 95 percent of those estimated to incur losses of less than 5 percent, and 50 of these vessels would incur losses greater than 5 percent. The affected entities would be mostly smaller vessels that land bluefish in New York. In addition, economic analysis of recent South Atlantic Trip Ticket Report data indicated small reductions, on average, in revenue for fishermen that land bluefish in North Carolina (0.05 percent). No revenue reduction is expected for vessels that land bluefish in Florida as a consequence of the proposed 2005 quota compared to 2003 landings in that state.

The allocations specified in Alternative 2 represent a 49 percent decrease in the commercial quota from the 2004 commercial quota, and a 20 percent increase in the recreational harvest limit when compared to the harvest limit in 2004. However, due to recent trends in bluefish recreational landings, it is expected that landings in 2005 will be substantially lower than the recreational harvest limit for 2005 under Alternative 1, which is approximately 25 percent less than the recreational harvest level under Alternative 2. The reduction in the commercial quota would cause 23 vessels to have revenue losses of 50 percent or more, while 70 vessels would have revenue losses of from 5 to 49 percent. An additional 460 vessels would incur revenue losses of less than 5 percent of their total ex-vessel revenue. Also, South Atlantic Trip Ticket Report data were evaluated to further assess the economic impacts associated with the change in quota levels in 2005 compared to landings in 2003. This evaluation indicated that, on average, reduction in revenues due to a potential change in the landings level is expected to be small for fishermen that land bluefish in North Carolina (less than 2 percent). No revenue reduction is expected for vessels that land bluefish in Florida as a consequence of the proposed 2005 quota compared to 2003 landings in that state.

Alternative 3 represents a 9 percent decrease in the total allowable commercial landings for bluefish in 2005 versus 2004. The 2004 recreational harvest limit under this alternative would be 34 percent higher than the estimated recreational landings in 2003. Under this scenario, a total of 61 vessels would incur revenue losses of from 5 to 39 percent due to the reduction in the commercial quota. An additional 244 commercial vessels would incur revenue losses of less than 5 percent of their total ex-vessel revenue. The same conclusions as were drawn under Alternative 2 for fishermen that land bluefish in North Carolina and Florida can be applied to this alternative. Table 2 (below) contains a summary of the allocations to the recreational and commercial fisheries under the three alternatives.

The Council further analyzed the impacts on revenues of the proposed RSA specified in all three alternatives. The social and economic impacts of this proposed RSA are expected to be minimal. Assuming the full RSA is allocated for bluefish, the set-aside amount could be worth as much as $86,348 dockside, based on an average 2003 ex-vessel price of $0.29 per pound for bluefish. Assuming an equal reduction among all 853 active dealer reported vessels, this could mean a reduction of about $101 per individual vessel. Changes in the recreational harvest limit would be insignificant (less than a 1 percent decrease), if 1 percent of the TAL is used for research. It is unlikely that there would be negative economic impacts as a result of the RSA. A full analysis is available from the Council (see ADDRESSES).

Proposed 2005 initial specifications were published on January 10, 2005 (70 FR 1686). Public comments were accepted through February 9, 2005. The final specifications are unchanged from those that were proposed. A complete discussion of the development of the specifications appears in the preamble to the proposed rule and is not repeated here.

2005 Final Initial Specifications

The following table contains the final initial specifications and research set aside (RSA) for the 2005 MSB fisheries. For 2005, two project proposals requesting Loligo squid set-aside landings were recommended for approval and will be forwarded to the NOAA Grants Office for award, for a total RSA of 255.1 mt. Consistent with the recommendations, the quotas in this final rule have been adjusted to reflect the projects recommended for approval. If the awards are not made by the NOAA Grants Office for any reason, NMFS will give notice of an adjustment to the annual quota to return the unawarded set-aside amount to the fishery.

NMFS also implements three clarifications to the Atlantic mackerel, squid, and butterfish regulations. The first, in § 648.21, removes references to the dates on which the proposed and final rules for the annual specifications must be published by the Administrator, Northeast Region, NMFS (Regional Administrator), because it is not necessary to specify these dates in regulatory text. The second clarification, in § 648.23, revises a confusing sentence to make it clearer. The third clarification, in § 648.4(a)(5)(i), clarifies that the Illex permit moratorium is in effect until July 1, 2009.

The final rule specifies an Atlantic mackerel IOY of 115,000 mt, as well as a DAH of 115,000 mt (which includes 15,000 mt for the recreational fishery), a JVP of zero, and a TALFF of zero.

In 2004, the Council specified the annual quota and other measures for Loligo squid for a period of up to 3 years (i.e., 2004 - 2007). After a review of available information, the Council recommended no change to the Loligo quota or other measures in 2005, and NMFS concurs with this recommendation. Based on research projects approved for 2005, the Council recommended that the RSA for scientific research for Loligo squid not exceed 255.1 mt. This final rule specifies a 2005 Max OY for Loligo squid of 26,000 mt, an ABC of 17,000 mt, and an IOY is 16,744.9, which takes into account the 255.1-mt RSA. The 2005 quarterly allocations for Loligo are as follows:

Also unchanged from 2004, the 2005 directed fishery will be closed in Quarters I-III when 80 percent of the periods' allocation are harvested, with vessels restricted to a 2,500-lb (1,134-kg) Loligo squid trip limit per single calender day until the end of the respective quarter. The directed fishery will close when 95 percent of the total annual DAH has been harvested, with vessels restricted to a 2,500-lb (1,134-kg) Loligo squid trip limit per single calender day for the remainder of the year. Quota overages from Quarter I will be deducted from the allocation in Quarter III, and any overages from Quarter II will be deducted from Quarter IV. By default, quarterly underages from Quarters II and III will carry over into Quarter IV, because Quarter IV does not close until 95 percent of the total annual quota has been harvested. Additionally, if the Quarter I landings for Loligo squid are less than 80 percent of the Quarter I allocation, the underage below 80 percent will be applied to Quarter III.

This final rule specifies that Max OY, IOY, ABC and DAH will be 24,000 mt, which maintains the status quo. The Illex directed fishery will be closed when 95 percent of the quota (22,800 mt) is harvested. The catch limit for squid/butterfish incidental catch permit holders will be 10,000 lb (4,536 kg). This also represents the trip limit in effect when the directed fishery is closed.

This final rule specifies that the IOY will be 1,681 mt, which will achieve the target fishing mortality rate (75 percent of Fmsy) specified in the FMP based on the most recent stock assessment for the species (Stock Assessment Review Committee (SARC) 38). This final rule also implements a 3.0-inch (7.62-cm) minimum codend mesh size requirement for butterfish otter trawl trips greater than 5,000 lb (2,268 kg), the level that would qualify as a directed butterfish trip.

Comment 1: Five comments from industry members and associations and one comment from the Council supported the proposed specifications for an IOY/DAH of 115,000 mt, though they believed the industry could potentially harvest the 165,000 mt recommended by the Council. All six commenters raised the same concern about the timeliness of an in-season adjustment for the mackerel OY and DAH, should one become necessary. They requested that the final 2005 specifications include a clear and specific contingency provision that would enable NMFS to implement a timely in-season adjustment. They suggested that NMFS use vessel trip report data and dealer reports, in conjunction with catch-trend analysis from previous years, to track mackerel harvest with a minimum amount of lag time. They also suggested that NMFS initiate the in-season adjustment process when a trigger amount of mackerel is caught; for example, when the 2005 projected catch is equal to the previous year's catch (roughly 54,000 mt) or some reasonable percentage (e.g., 70 percent of the IOY) of the total available DAH of 100,000 mt.

Response 1: NMFS agrees that it is important to keep close watch on the mackerel catch throughout 2005 so that, should an in-season adjustment become necessary, it can be implemented as quickly as possible. NMFS will take advantage of all data sources and projection techniques to ensure that it can achieve that goal. NMFS sees no need to specify the contingency provision that the commenters requested, e.g., a pre-established trigger for increasing OY and DAH. NMFS will closely monitor landings in order to take any necessary action on an in-season adjustment as noted in the proposed rule.

Comment 2: One private citizen stated that all quotas should be cut by 50 percent this year and by 10 percent each succeeding year. The commenter added that the maximum sustainable yield (MSY) estimates are too high, but provided no justification for these claims.

Response 2: The quotas, as well as the MSY calculations that form the basis of this final rule, are all based on the best available science, as required by National Standard 2 of the Magnuson-Stevens Fishery Conservation and Management Act.

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

Included in this final rule is the FRFA prepared pursuant to 5 U.S.C. 604(a). The FRFA incorporates the discussion that follows, the comments and responses to the proposed rule, and the initial regulatory flexibility analysis (IRFA) and other analyses completed in support of this action. A copy of the IRFA is available from the Regional Administrator (see ADDRESSES).

A description of the reasons why this action is being considered, and the objectives of and legal basis for this action, is contained in the preamble to the proposed rule and is not repeated here.

Seven sets of comments were submitted on the proposed rule, but none were specific to the IRFA or the economic impacts of the rule.

The number of potential fishing vessels in the 2005 fisheries are 381 for Loligo squid/butterfish, 72 for Illex squid, 2,407 for Atlantic mackerel, and 2,119 vessels with incidental catch permits for squid/butterfish, based on vessel permit issuance. Many vessels participate in more than one of these fisheries; therefore, the numbers are not additive. There are no large entities participating in this fishery, as defined in section 601 of the Regulatory Flexibility Act (RFA). Therefore, there are no disproportionate economic impacts on small entities.

This action does not contain any new collection-of-information, reporting, recordkeeping, or other compliance requirements. It does not duplicate, overlap, or conflict with any other Federal rules.

The annual setting of the specifications focuses on the allocation of mackerel, squid, and butterfish to various groups and for various purposes. Alternatives that were considered to lessen the impacts on small entities are summarized below.

Three alternatives for mackerel were evaluated. One would have set IOY at 175,000 mt. The two other alternatives would have set IOY at 165,000 mt. Neither of these IOYs would constrain vessels in these fisheries. Absent such a constraint, no impacts on revenues in this fishery would be expected as a result of any of these alternatives. Two of these alternatives one setting IOY at 165,000 mt and the other setting it at 175,000 mt would have set the ABC at 347,000 mt. These two alternatives were rejected on biological grounds because that level of ABC would not be consistent with the overfishing rule adopted in Amendment 8 to the Fishery Management Plan (F=0.25 yield estimate of 369,000 mt minus the estimated Canadian catch of 34,000 mt). Furthermore, the Atlantic mackerel alternative that would have set IOY at 175,000 mt was rejected because it would have been too high in light of social and economic concerns relating to TALFF. The Atlantic mackerel alternative that would set IOY at 175,000 mt would also allocate 5,000 mt for JVP. This allocation of JVP was rejected because it was concluded that U.S. processing capacity is sufficient to process the entire DAH. The third alternative for mackerel considered was one that would have set IOY at 165,000 mt, and ABC at 335,000 mt. Although this ABC is the same as in the proposed action, this IOY was rejected because it would have been too high in light of social and economic concerns relating to TALFF. The specification of TALFF would have limited the opportunities for the domestic fishery to expand, and therefore would have resulted in negative social and economic impacts to both U.S. harvesters and processors, as explained in detail in the proposed rule.

For Illex, one alternative considered would have set Max OY, ABC, IOY, DAH, and DAP at a level higher than the 24,000 mt established in this rule--30,000 mt. This alternative would allow harvest far in excess of recent landings in this fishery. Therefore, there would be no constraints and, thus, no revenue reductions, associated with these specifications. However, the Council considered this alternative unacceptable because an ABC specification of 30,000 mt may not prevent overfishing in years of moderate to low abundance of Illex squid.

For butterfish, one alternative considered would have set IOY at 5,900 mt, while another would have set it at 9,131 mt. These amounts exceed the landings of this species in recent years. Therefore, neither alternative would constrain vessels in this fishery. In the absence of such a constraint, neither of these alternatives would reduce revenues in the fishery. However, both of these alternatives were rejected because they would likely result in overfishing and additional depletion of the spawning stock biomass.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule, or group of related rules, for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a small entity compliance guide will be sent to all holders of permits issued for the Atlantic mackerel, squid, and butterfish fisheries. In addition, copies of this final rule and guide (i.e., permit holder letter) are available from the Regional Administrator (see ADDRESSES) and may be found at the following web site: http://www.nmfs.gov/ro/doc/nero.html.