The Federal Reserve Banks make primary and secondary credit available to depository institutions as a backup source of funding on a short-term basis, usually overnight. The primary and secondary credit rates are the interest rates that the twelve Federal Reserve Banks charge for extensions of credit under these programs. In accordance with the Federal Reserve Act, the primary and secondary credit rates are established by the boards of directors of the Federal Reserve Banks, subject to the review and determination of the Board.

The Board approved requests by the Reserve Banks to increase by 25 basis points the primary credit rate in effect at each of the twelve Federal Reserve Banks, thereby increasing from 3.50 percent to 3.75 percent the rate that each Reserve Bank charges for extensions of primary credit. As a result of the Board's action on the primary credit rate, the rate that each Reserve Bank charges for extensions of secondary credit automatically increased from 4.00 percent to 4.25 percent under the secondary credit rate formula. The final amendments to Regulation A reflect these rate changes.

The 25-basis-point increase in the primary credit rate was associated with a similar increase in the target for the federal funds rate (from 2.50 percent to 2.75 percent) approved by the Federal Open Market Committee (Committee) and announced at the same time. A press release announcing these actions indicated that:

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 605(b)), the Board certifies that the new primary and secondary credit rates will not have a significantly adverse economic impact on a substantial number of small entities because the final rule does not impose any additional requirements on entities affected by the regulation.

The Board did not follow the provisions of 5 U.S.C. 553(b) relating to notice and public participation in connection with the adoption of these amendments because the Board for good cause determined that delaying implementation of the new primary and secondary credit rates in order to allow notice and public comment would be unnecessary and contrary to the public interest in fostering price stability and sustainable economic growth. For these same reasons, the Board also has not provided 30 days prior notice of the effective date of the rule under section 553(d).

The FAA proposed to amend 14 CFR part 39 with an airworthiness directive (AD). The proposed AD applies to GE CF6-45A, CF6-50A, CF6-50C, and CF6-50E series turbofan engines that have not incorporated GE SB No. CF6-50 S/B 72-1239, Revision 1, dated September 24, 2003, or that have not incorporated paragraph 3.B. of GE SB No. CF6-50 S/B 72-1239, original issue, dated May 29, 2003. We published the proposed AD in the Federal Register on October 27, 2004 (69 FR 62623). That action proposed to require inspecting the stage 1 LPT blades for damage and replacement of the LPT module if necessary.

You may examine the docket that contains the AD, any comments received, and any final disposition in person at the DMS Docket Offices between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone (800) 647-5227) is located on the plaza level of the Department of Transportation Nassif Building at the street address stated in ADDRESSES. Comments will be available in the AD docket shortly after the DMS receives them.

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

One commenter requests that we clarify if the extension limits in aircraft maintenance manual (AMM) 72-00-00, are still allowed if out-of-limit LPT blade damage is found during the required borescope inspection. The commenter provided no justification for this request.

We do not feel we need to clarify allowing extension limits if the operator finds damage during the required borescope inspection. Paragraphs (g) and (i) of the proposed AD require replacing any LPT module that exceeds the AMM limits for the stage 1 LPT blade damage.

One commenter requests that we give operators credit for inspections already performed using GE Alert Service Bulletin (ASB) No. 72-A1251, dated September 24, 2003, before the effective date of the AD. Another commenter requests that we give operators credit for inspections already performed using an approved maintenance program. The commenters believe that based on the proposed AD wording, an operator would have to complete the initial inspection within 150 cycles-in-service after the effective date of the AD, regardless of any prior inspections done.

We agree that we should allow credit for inspection programs begun before the effective date of the AD. Because paragraph (e) of the proposed AD states that you are responsible for having this AD performed within the compliance times specified unless the actions have already been done, we feel that this statement provides credit for inspections already done. However, for clarity, we have added a paragraph (paragraph (j)) to the AD compliance that gives credit for initial and repetitive inspections done using GE ASB No. 72-A1251 or the applicable AMM.

One commenter states that this inspection AD is not necessary. The commenter's reason is that GE had previously released an improved strut stud joint configuration (reference GE SB No. 72-0897, dated 1987), and recommended that studs not be reused (reference engine manual change in 1996). The commenter asks that we provide additional analysis to substantiate the need for this inspection AD for engines configured with new, post-SB No. 72-0897 studs. The commenter sites their service experience, which has not shown wear or contact between the stud sleeve and nozzle support. The commenter states that the one documented failure of a first-run engine (non-reused stud) is an extremely rare and unique case because it occurred on a KC-10 military airplane application.

We do not agree. We didn't make GE SB No. 72-0897, which introduced the improved configuration, mandatory. We also didn't make the 1996 engine manual change, which specified the studs were not to be reused, mandatory. Also, GE has provided data that shows that the potential for contact, rubbing, and wear, exists by design, as a result of insufficient clearance between the hole in the LPT nozzle support and the sleeve fitted to the TMF strut stud. During engine operation, thermal and mechanical deflections between the nozzle support and the stud and sleeve assembly can result in contact between these components if minimum assembly clearance requirements are not met. This contact causes transverse loads and bending moments in the strut stud. The fatigue life of the stud is reduced as a result of these loads. The fracture surface of the stud involved in the most recent event showed signs of fatigue damage, characteristic of bending loads. Although the commenter has not yet experienced this condition, and there is only one known failure for the post SB No. 72-0897 configuration with a non-reused stud, the potential exists for stud failure. This inspection AD is necessary to detect studs that have failed, and to prevent an uncontained engine failure.

One commenter requests that we clarify the word “optional” in the Optional Terminating Action paragraph of the proposed AD. The commenter states that incorporation of GE SB No. 72-1239 is terminating action for the repetitive inspections in the proposed AD.

We do not agree. The proposed AD requires that operators perform the initial and repetitive inspections of the LPT. The proposed AD does not require that operators perform the reassembly described in GE SB No. 72-1239. However, if an operator chooses to perform GE SB No. 72-1239, as described in paragraph (j) of the proposed AD (now paragraph (k) of the AD), the initial and repetitive inspections are no longer required. The incorporation of GE SB No. 72-1239 is described as optional, because an operator can choose to continue to perform repetitive inspections or incorporate that SB. Either action provides an acceptable level of safety.

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 2,079 GE CF6-45A, CF6-50A, CF6-50C, and CF6-50E series turbofan engines of the affected design in the worldwide fleet. We estimate that 790 engines installed on airplanes of U.S. registry will be affected by this AD. We also estimate that it will take about one work hour per engine to perform the actions, and that the average labor rate is $65 per work hour. Based on these figures, we estimate the total cost of the AD to perform one inspection to U.S. operators to be $51,350.

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 at the address listed under ADDRESSES.

The FAA proposed to amend 14 CFR Part 39 with an AD for certain McDonnell Douglas Model DC-9-10, -20, -30, -40, and -50 series airplanes; and Model DC-9-81 (MD-81) and DC-9-82 (MD-82) airplanes. That action, published in the Federal Register on August 5, 2004 (69 FR 47388), proposed to require repetitive detailed inspections of the upper and lower caps of the rear spar of the left and right wings, and corrective action if necessary. That action also proposed to provide an optional modification that would end the repetitive 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.

One commenter requests that we revise the corrective action specified in the proposed AD. The commenter states there is a significant discrepancy between the proposed AD and McDonnell Douglas DC-9 Service Bulletin 57-179, Revision 1, dated December 21, 1994 (referenced as the appropriate source of service information for accomplishing the proposed actions). The commenter notes that the proposed AD will require that if a crack is found on either the upper or lower spar cap, then both the upper and lower spar caps must be either permanently repaired as specified in paragraph (j) of the proposed AD or temporarily repaired as specified in paragraph (k) of the proposed AD. The commenter contends that the intent of the service bulletin is to repair (permanently or temporarily) only the cracked spar caps and then repetitive inspections can continue on spar caps that are not cracked. The commenter provides data that it contends strongly indicate that repair of both spar caps is not necessary if only one of the spar caps is found to be cracked. The commenter also refers to AD 88-01-04, which does not require repair of both spar caps if only one is found to be cracked.

The commenter states that requiring both spar caps to be repaired if either spar cap is found cracked would appear to be a requirement to retrofit all airplanes that have repaired only a single spar cap and therefore may result in grounded airplanes. The commenter also states that repairing both spar caps if only one spar cap is cracked would impose a large and unnecessary burden on operators.

The commenter requests that the final rule require only temporary or permanent repair of the cracked spar cap and continuing inspections of the uncracked spar cap on that spar.

We agree with the commenter to revise the final rule. When only one spar cap is found to be cracked on one spar, the intent of the service bulletin is to repair the cracked spar cap and continue inspections of the uncracked spar cap on that spar. We have revised paragraphs (j) and (k) of the final rule accordingly.

The same commenter requests that we revise the Cost of Compliance section of the proposed AD. The commenter notes that the proposed AD estimates the cost at $260 per airplane, per inspection. The commenter states that based on its experience, the average cost to perform the inspections is $610 per airplane.

We do not agree to revise the Costs of Compliance section of the final rule. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions. Thus, the cost estimate in the final rule is only for the cost of the inspection. In addition, the cost estimate is based on the manufacturer's data provided in the service bulletin. We have not changed the final rule in this regard.

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.

We have revised the wording in paragraph (n) of the final rule to clarify that for the applicable airplanes the actions specified in paragraph (n) are required only if the actions specified in paragraph (m) are being accomplished.

There are about 1,163 airplanes worldwide of the affected design. This AD will affect about 583 airplanes of U.S. registry. The inspection will take about 4 work hours per airplane, at an average labor rate of $65 per work hour. Based on these figures, the estimated cost of the AD for U.S. operators is $151,580, or $260 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 regulatoory evaluation.

The FAA proposed to amend 14 CFR Part 39 with an AD for all Boeing Model 777-200, -200ER, and -300 series airplanes. That action, published in the Federal Register on November 4, 2004 (69 FR 64263), proposed to require inspection of the outer cylinder of the main landing gear (MLG) to determine the serial number; an ultrasonic inspection of the outer cylinder of the MLG for cracks if necessary; and applicable specified and corrective actions if necessary.

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 asks that an “on-aircraft” inspection be allowed as an alternate means of accomplishing the inspection for cracking of the main landing gear (MLG) in order to avoid unnecessary removal and disassembly of the MLG. Additionally, the removal and disassembly costs would be saved if an on-wing (on-aircraft) inspection were available. The commenter also asks that, if an “on-aircraft” inspection is not possible, the compliance time for accomplishing the inspection of the outer cylinder of the MLG be extended until removal of the MLG can be done at a normal maintenance time for overhaul. The commenter states that it has airplanes that have been in-service for 4 years without any problems, and notes that the cracking of the MLG was found before it was installed on the airplane. The FAA would allow 6 years for compliance, as specified in the proposed AD. The commenter adds that the manufacturer states that 6 years is the time allowed for overhaul, but the overhaul limit is actually 10 years.

We do not agree with the commenter's request for an “on-aircraft” inspection in place of the inspection of the outer cylinder of the MLG. There are no procedures for accomplishing an “on-aircraft” inspection specified in the referenced service information. Nor do we agree to extend the compliance time for accomplishing the inspection of the outer cylinder of the MLG until the removal of the MLG can be done at a normal maintenance time for overhaul. In developing an appropriate compliance time for this action, we considered the recommendation of the manufacturer, the urgency associated with the subject unsafe condition, and the practical aspect of accomplishing the required inspection within a period of time that corresponds to normal scheduled maintenance for most affected operators. The compliance time specified in this final rule represents an acceptable interval of time wherein affected airplanes may be allowed to operate without jeopardizing safety. In addition, no technical justification was provided to substantiate this request. Paragraph (k)(1) of this AD provides affected operators the opportunity to apply for an alternative method of compliance (AMOC) and to present data to justify the adjustment of the compliance time. We have made no change to the final rule in this regard.

One commenter asks that part number (P/N) or serial number (S/N) re-identification be done after accomplishing the required inspection. The commenter states that the referenced service bulletin does not require P/N or S/N re-identification of affected parts after accomplishing the inspection: the procedures only specify engraving the service bulletin number on the part. The commenter adds that the outer cylinder of the MLG is a life-limited part that must be tracked for the life of the part; therefore, P/N or S/N re-identification is necessary to track incorporation of the referenced service bulletin and the proposed AD. The commenter notes that life-limited parts are tracked for the life of the part, and operators must know on which airplanes the S/N identified in the referenced service bulletin is installed.

We do not agree with the commenter. The referenced service bulletin specifies vibro-engraving or electro-chemically etching the service bulletin number next to the existing P/N on the outer cylinder assembly. We have determined that this action sufficiently differentiates between pre- and post-modification of the part and allows tracking for the life of the part. We have made no change to the final rule in this regard.

One commenter asks that the applicability specified in the proposed AD be changed to an appliance AD, which would be applicable only to airplanes with parts having the P/N and S/N identified in the referenced service bulletin, not all Model 777-200, -200ER, and -300 series airplanes. The commenter does not provide a reason for this request.

We do not agree with the commenter. Our general policy, when an unsafe condition results from an appliance or other item that is, or could be, installed on multiple airplane models, is that the AD is issued so that it is applicable to those airplane models, rather than to the item. The reason for this is simple: Making the AD applicable to the airplane models on which the appliance or other item is installed ensures that operators of those airplanes will be notified directly of the unsafe condition and the action required to correct it. While it is assumed that an operator will know the models of airplanes that it operates, there is a potential that the operator will not know or be aware of specific items that are installed on its airplanes. Therefore, calling out the airplane model as the subject of the AD prevents “unknowing non-compliance” on the part of the operator. We have made no change to the final rule in this regard.

Another commenter asks that the applicability specified in the proposed AD be changed to match the effectivity identified in the referenced service bulletin, which applies to Model 777-200 series airplanes only. If the applicability is not changed, the commenter asks that an alternate method of confirming the S/N of the outer cylinder of the MLG be allowed. The commenter notes that one method is using digital records provided by the manufacturer. The commenter does not provide a reason for this request.

We partially agree with the commenter. We agree to change the applicability specified in the proposed AD somewhat. As specified in the “Differences” section of the proposed AD, Model 777-300 series airplanes are included in the applicability since we determined that, because of the potential for the affected outer cylinders to be installed on Model 777-300 series airplanes, the proposed actions must be done on those airplanes. As discussed below in “Explanation of Changes to Proposed AD,” we inadvertently included Model 777-200ER series airplanes; we have removed that model from the applicability specified in this final rule.

We agree to allow the use of digital records provided by the manufacturer for confirming the serial number of the outer cylinder of the MLG, provided that precise tracking of which outer cylinder serial number is on which airplane since delivery can be determined from the airplane maintenance records. The final rule already provides for this by the maintenance records review specified in paragraph (h) of this AD. We have made no change to the final rule in this regard.

One commenter asks that the requirements specified in paragraph (h)(2) of the proposed AD be changed to allow for a preliminary inspection of serial numbers to determine which airplanes are affected by the proposed AD. The commenter also asks to be allowed to accomplish any necessary inspections and corrective action at a later time, as long as those actions are accomplished within the compliance time required by paragraph (g) of the proposed AD. The commenter states that paragraph (h)(2) of the proposed AD specifies that if any serial number identified in the referenced service bulletin is installed, the ultrasonic inspection must be accomplished before further flight, in addition to accomplishing all applicable specified actions and any corrective action.

We agree that a preliminary inspection to determine the serial numbers of affected airplanes may be accomplished before accomplishing the requirements specified in paragraph (h)(2) of this AD. Operators are always permitted to perform actions earlier than the compliance time specified in an AD. In this case, it is at the operator's discretion to accomplish a preliminary inspection of the serial numbers to determine which airplanes are affected by the AD at any time before the required compliance time, if that time more closely fits the operator's maintenance schedule. We also agree that the inspection for cracking and any applicable specified actions, as required by paragraph (h)(2), may be accomplished at a later time as long as the inspection for cracking is done within the compliance time required by paragraph (g) of this AD. Paragraph (h)(2) of this AD has been changed accordingly.

We do not agree that any applicable corrective action resulting from inspection findings may be accomplished at a later time; the corrective action must always be accomplished before further flight after accomplishing the required inspection to maintain safety of flight. We have made no change to the final rule in this regard.

The applicability in the proposed AD addresses “All Boeing Model 777-200, -200ER, and -300 series airplanes.” We inadvertently included Model 777-200ER series airplanes, which are not specified on the type certificate data sheet and are encompassed within the Model 777-200 series. Our intent is that the AD apply to all Model 777-200 and -300 series airplanes; therefore, we have changed the applicability in this final rule accordingly.

Boeing has received a Delegation Option Authorization (DOA). We have revised this final rule to delegate the authority to approve an AMOC for any repair required by this AD to the Authorized Representative for the Boeing DOA Organization rather than the Designated Engineering Representative.

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. These changes will neither increase the economic burden on any operator nor increase the scope of the AD.

This AD affects about 463 Model 777 series airplanes worldwide. The following table provides the estimated costs for U.S. operators to comply with this AD.

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

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

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

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

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

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

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 2001-11-09, amendment 39-12252 (66 FR 31143, June 11, 2001), which is applicable to certain Airbus Model A330 and A340 series airplanes, was published as a supplemental notice of proposed rulemaking (NPRM) in the Federal Register on August 31, 2004 (69 FR 53016). That action proposed to expand the applicability of the existing AD; and require new repetitive inspections for discrepancies of the ball screw assembly; corrective action if necessary; repetitive greasing of the trimmable horizontal stabilizer actuator (THSA) ball nut, and replacement of the THSA if necessary; and a modification or replacement (as applicable) of the ball nut assembly, which would end certain repetitive inspections.

Since the preparation of the supplemental NPRM, Airbus has issued Service Bulletin A330-27-3102, Revision 05, dated July 7, 2004. (The supplemental NPRM refers to Airbus Service Bulletin A330-27-3102, Revision 04, dated December 8, 2003, as the acceptable source of service information for accomplishing certain inspections and corrective actions.) Airbus issued Revision 05 to expand the effectivity to include Models A330-302 and -303 airplanes, and to list additional manufacturer's serial numbers in the service bulletin. Revision 05 does not contain any new procedures. Accordingly, we have revised paragraph (e) of this AD to refer to Revision 05 as the acceptable source of service information for the actions required by that paragraph. We have also revised paragraph (i)(2) of this AD to state that inspections and corrective actions accomplished previously in accordance with Airbus Service Bulletin A330-27-3102, Revision 04, are acceptable for compliance with paragraph (e). We find that referring to Revision 05 does not result in an expansion of the applicability of this AD because the applicability of the supplemental NPRM includes all Airbus Model A330, A340-200, and A340-300 series airplanes.

The Direction Générale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, classified Airbus Service Bulletin A330-27-3102, Revision 05, as mandatory and issued French airworthiness directive F-2002-414 R3, dated July 7, 2004, to ensure the continued airworthiness of these airplanes in France. We have revised Note 8 of this AD to refer to this latest revision of the French airworthiness directive.

We have revised paragraphs (c)(3) and (f) of this AD to more accurately state the warning messages that may be displayed on the electronic centralized aircraft monitor (ECAM) associated with the “PITCH TRIM ACTR (1CS)” maintenance message.

Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comments received.

One commenter requests that we revise the supplemental NPRM to remove paragraph (f), which requires inspecting in accordance with paragraph (e) of the supplemental NPRM before further flight if a “F/CTL PRIM X PITCH FAULT” or “F/CTL STAB CTL FAULT” warning message is displayed on the ECAM associated with the “PITCH TRIM ACTR (1CS).” The commenter states that it has no mechanism to document compliance with this requirement because, if the ECAM warning is displayed in flight, there is no process to ensure that the pilot will record the warning in the airplane logbook, though this is the general practice.

The commenter further states that the normal procedures if the subject ECAM message appears would lead a mechanic to the Airbus A330/A340 Troubleshooting Manual (TSM), most likely to TSM Task 27-90-00-810-847, “Failure of the Pitch Trim Actuator Detected by the FCPC1 or FCPC2.” The commenter explains that the first step of this task would be to perform an operational test of the servo loops of the trimmable horizontal stabilizer. If this operational test shows no discrepancy, no further action would be necessary. If the test confirms a discrepancy, the TSM specifies a detailed visual inspection of the ball screw assembly in accordance with Task 27-44-51-210-805 of the Airbus A330/A340 Airplane Maintenance Manual (AMM). The commenter feels that the TSM is the primary source of guidance for diagnosing system problems and that the procedures in the TSM would provide adequate guidance should a subject ECAM message appear. Thus, the commenter states that the requirements of paragraph (f) of the supplemental NPRM are not warranted. The commenter does note that there is no mechanism for it “to generate the requirement to refer to the specific TSM task and document its compliance in every instance.”

We do not concur that paragraph (f) of this AD is unnecessary. Section 121.563 (“Reporting mechanical irregularities”) of the Federal Aviation Regulations (FARs) (14 CFR 121.563) requires that the pilot ensure that all mechanical irregularities that occur during flight are entered into the maintenance log at the end of the flight. That section also requires that, before each flight, the pilot must determine the status of any irregularity entered in the maintenance log at the end of the preceding flight. A “F/CTL PRIM X PITCH FAULT” message is informational only and will remain displayed on ECAM through landing because there is no action that the crew can take that will correct the failure. Crew procedures for the “F/CTL STAB CTL FAULT” will also not correct the failure; therefore that ECAM message will remain displayed through landing. ECAM messages remaining after the flight are considered mechanical irregularities that must be entered in the maintenance log in accordance with 14 CFR 121.563. We have not changed the AD in this regard.

However, we do concur that performing an operational test in accordance with TSM Task 27-90-00-810-847 would be an acceptable means of complying with paragraph (e) of this AD, provided that, if the operational test confirms a discrepancy, the detailed inspection required by paragraph (e) of this AD, and any necessary corrective actions, are done before further flight. We have revised paragraph (e) of this AD accordingly.

The first commenter requests that, if we decide that it is necessary to retain paragraph (f) of the supplemental NPRM, we refer to AMM Task 27-44-51-210-805 as an alternative method for doing the repetitive inspections. A second commenter makes the same request. The commenters note that the procedures in this AMM task are equivalent to those in Airbus Service Bulletin A330-27-3102, Revision 04, which is referenced in the supplemental NPRM as the appropriate source of service information for the necessary inspection.

We concur. We have revised paragraph (e) of this AD to state that an inspection done according to Task 27-44-51-210-805 of the AMM is acceptable for compliance with that paragraph. (Paragraph (f) of this AD refers to the inspection in paragraph (e).)

One commenter requests that we revise paragraph (d) of the supplemental NPRM to revise the reference to grease being expelled through the “drain hole.” The commenter notes that the lubrication procedures specified in Chapter 12-22-27 of the Airbus A330/A340 AMM identify this orifice as the “vent hole.” The commenter requests that the terminology be changed for clarification. We concur and have revised paragraph (d) of this AD accordingly.

One commenter requests that we revise the number of affected airplanes estimated in the Cost Impact section of the supplemental NPRM. The commenter notes that we estimate that 9 Model A330 series airplanes would be affected. The commenter operates 10 affected U.S.-registered Model A330 series airplanes.

We concur. Since the issuance of the original NPRM and the supplemental NPRM, more Model A330 series airplanes have been registered in the U.S. We have revised the estimated number of affected Model A330 series airplanes to 19.

After careful review of the available data, including the comments noted above, the FAA has determined that air safety and the public interest require the adoption of the rule with the changes previously described. The FAA has determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.

There are approximately 19 Model A330 series airplanes of U.S. registry that are affected by this AD. Currently, there are no affected Model A340-200 or -300 series airplanes on the U.S. Register. However, if an affected Model A340-200 or -300 series airplane is imported and placed on the U.S. Register in the future, the following costs will also apply to those airplanes.

The inspections (in accordance with Airbus All Operators Telex (AOT) A330-27A3088 or A340-27A4093, as applicable) that are currently required by AD 2001-11-09 take approximately 1 work hour per airplane, per inspection cycle, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of the currently required actions on U.S. operators is estimated to be $1,235, or $65 per airplane, per inspection cycle.

The new inspections (in accordance with Airbus SBs A330-27-3088 or A340-27-4093, as applicable) that are required by this AD take approximately 1 work hour per airplane, per inspection cycle, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of this requirement on U.S. operators is estimated to be $1,235, or $65 per airplane, per inspection cycle.

The new greasing action that is required by this AD takes approximately 1 work hour per airplane, per maintenance cycle, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of this requirement on U.S. operators is estimated to be $1,235, or $65 per airplane, per maintenance cycle.

In addition to the actions stated above, certain airplanes may be subject to additional actions. The following table contains the cost impact estimate for each airplane affected by the SBs listed below, at an average labor rate of $65 per work hour:

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

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

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

The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

This rule expands the country scope of the “end-user/end-use” controls in Section 744.4(a) of the EAR. Section 744.4 sets forth the EAR “end-user/end-use” provisions that apply to chemical and biological weapons end-uses. Section 744.4(a) of the EAR requires a license to export or reexport items subject to the EAR if, at the time of the export or reexport, the exporter or reexporter knows that the items are intended for chemical or biological weapons activities. Prior to the publication of this rule, the country scope of this “end-user/end-use” license requirement applied only to countries of concern for chemical and biological weapons reasons (i.e., Country Group D:3 in Supplement 1 to part 740 of the EAR). This final rule amends Section 744.4(a) of the EAR to expand the number of countries subject to this EAR “end-user/end-use” license requirement to include all destinations, worldwide, including the countries identified in Country Group A:3 (i.e., the AG-participating countries). The amendments are consistent with the “catch-all” provisions in the Australia Group's (AG) “Guidelines for Transfers of Sensitive Chemical or Biological Items” (Guidelines).

The AG-related changes described above do not affect Section 744.4(b) of the EAR, which describes certain “end-user/end-use” license requirements that apply to any exporter or reexporter who has been “informed” by BIS that a license is required by a certain end-user due to an unacceptable risk of use in or diversion to chemical or biological weapons activities, because this EAR provision currently has a worldwide country scope that is consistent with the equivalent “catch-all” provision in the AG Guidelines.

This rule imposes new export controls for foreign policy reasons. As required by section 6 of the Export Administration Act of 1979, as amended (the Act), a report on the imposition of these controls was delivered to the Congress on March 21, 2005. Although the Act expired on August 20, 2001, Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as extended by the Notice of August 6, 2004, 69 FR 48763 (August 10, 2004), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act.

Shipments of items removed from license exception eligibility or eligibility for export without a license as a result of this regulatory action that were on dock for loading, on lighter, laden aboard an exporting carrier, or en route aboard a carrier to a port of export, on April 14, 2005, pursuant to actual orders for export to a foreign destination, may proceed to that destination under the previous license exception eligibility or without a license so long as they have been exported from the United States before April 29, 2005. Any such items not actually exported before midnight, on April 29, 2005, require a license in accordance with this regulation.

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

2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This rule contains a collection of information subject to the requirements of the PRA. This collection has been approved by OMB under Control Number 0694-0088 (Multi-Purpose Application), which carries a burden hour estimate of 58 minutes to prepare and submit form BIS-748. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden, to David Rostker, Office of Management and Budget (OMB), by e-mail to David_Rostker@omb.eop.gov, or by fax to (202) 395-7285; and to the Regulatory Policy Division, Bureau of Industry and Security, Department of Commerce, P.O. Box 273, Washington, DC 20044.

3. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132.

4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public participation, and a delay in effective date, are inapplicable because this regulation involves a military and foreign affairs function of the United States (Sec. 5 U.S.C. 553(a)(1)). Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this final rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under 5 U.S.C. 553 or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are not applicable.

Therefore, this regulation is issued in final form. Although there is no formal comment period, public comments on this regulation are welcome on a continuing basis.

On August 24, 2004, at 69 FR 51962, we published an NPRM in which we proposed to expand our ability to recover overpayments made in one of our programs from benefits payable to the overpaid individual under other programs we administer. These programs are Social Security benefits under title II of the Social Security Act (the Act), Special Veterans Benefits (SVB) under title VIII of the Act and Supplemental Security Income (SSI) benefits under title XVI of the Act. After considering the public comments we received on the NPRM, we published the final rules with request for comment on January 3, 2005, at 70 FR 11, expanding our cross-program recovery authority effective January 3, 2005. As stated in those final rules with request for comment, although most of the amendments to the regulations were effective upon publication, we solicited additional public comments on material changes from the NPRM version in some provisions (i.e., the removal of provisions excluding certain types of cases from cross-program recovery). We stated that we would not implement these changes until after we considered any comments we received during the 30-day public comment period.

In the final rules with request for comment published January 3, 2005, we changed the regulations in 20 CFR parts 404, 408 and 416 to reflect the expanded cross-program recovery authority granted by section 1147 of the Act (42 U.S.C. 1320b-17), as amended by section 210 of the Social Security Protection Act of 2004 (SSPA), Public Law 108-203.

Previously, part 404 had no provisions permitting cross-program recovery, since that option had not been applied to collect title II benefit overpayments. In part 404, we added new §§ 404.530, .535, .540 and .545, which parallel existing regulations at §§ 408.930 through 408.933, to include the expanded authority to recover title II overpayments as follows:

• We may withhold from a current monthly SSI payment no more than the lesser of that payment or 10 percent of the monthly income (as defined in the regulation) to recover a title II overpayment;

• We may withhold no more than 10 percent of current monthly SVB payments to recover a title II overpayment;

• We may withhold up to 100 percent of SSI and SVB past-due payments to recover a title II overpayment.

We changed §§ 408.930 through 408.933 to reflect the expanded authority to recover title VIII overpayments as follows:

• We may withhold from a current monthly SSI payment no more than the lesser of that payment or 10 percent of the monthly income to recover an SVB overpayment;

• We may withhold no more than 10 percent of current monthly title II benefits to recover an SVB overpayment;

• We may withhold up to 100 percent of title II and SSI past-due payments to recover an SVB overpayment.

We changed the regulations at § 416.570 to delete obsolete information. We changed the regulations at § 416.572 and added §§ 416.573, .574 and .575 to reflect the expanded authority to recover title XVI overpayments as follows:

• We may withhold no more than 10 percent of current monthly title II benefits to recover an SSI overpayment;

• We may withhold no more than 10 percent of current monthly SVB payments to recover an SSI overpayment;

• We may withhold up to 100 percent of title II and SVB past-due payments to recover an SSI overpayment.

The new sections follow the same structure as the existing regulations at §§ 408.930 through 408.933. We believe that this format is easy for members of the public to understand. We removed the title II example from § 416.572 because the example illustrated how we applied the 10 percent limit to past-due title II benefits. Under the new law, this limitation no longer applies. We removed the title VIII example from § 416.572 because we added a cross-reference to the title VIII regulations that explain how title VIII benefits are computed.

We removed from the SVB and SSI regulations the provisions that preclude cross-program recovery when the overpaid person is currently eligible for payment under the program from which we made the overpayment. The amended statute does not contain that restriction. As revised, § 416.572(b) also states that if we are already recovering an overpayment from title II benefits, the maximum amount which may be withheld from title XVI monthly benefits is the lesser of the person's title XVI benefit for that month or 10 percent of the person's total income for that month, not including the title II income used to compute the title XVI benefit.

Like the current regulations in 20 CFR part 408, subpart I, and part 416, subpart E, the final regulations for each program require that, before we impose cross-program recovery, we will notify the overpaid person of the proposed action and allow the overpaid person an opportunity to pay the remaining balance of the overpayment debt, to request review of the status of the debt, to request waiver of recovery, and to request recovery of the debt from current monthly benefits at a different rate than that stated in the notice. We will not begin cross-program recovery from current monthly benefits until 30 calendar days have elapsed after the date of the notice. If within that time period the person requests review of the debt, waiver of recovery of the debt, or reduction of the rate of recovery from current monthly benefits stated in the notice, we will not take any action to reduce current monthly benefits before we notify the debtor of our determination on the request. As permitted by section 1147(b)(2)(A) of the Act, the regulations provide that, if we find that the overpaid person or that person's spouse was involved in willful misrepresentation or concealment of material information in connection with the overpayment, we can withhold the entire amount of the current monthly benefit.

As we mentioned above, the final rules with request for comment contained material changes from the NPRM published on August 24, 2004. We deleted from §§ 404.530(b), 408.930(b) and 416.572(b) the provisions that excluded certain types of cases from cross-program recovery. Under one of the exclusions, we would not have applied cross-program recovery when the overpaid person was no longer eligible for payment under the program where the overpayment occurred but was refunding that overpayment voluntarily by making monthly installment payments. Under the other exclusion, we would not have recovered an overpayment in one program by adjusting benefits payable under another program when we were already adjusting those benefits to recover an overpayment of benefits within that program.

As amended by section 210 of the SSPA, section 1147 of the Act permits us to apply cross-program recovery in both situations described above. By eliminating these exclusions from paragraph (b) of §§ 404.530, 408.930 and 416.572, we believe that we will fulfill our stewardship responsibilities regarding the programs more effectively. If an individual is not eligible for SSI benefits and is refunding an SSI overpayment by making monthly installment payments, we would be able to recover the SSI overpayment by cross-program recovery against a title II past-due benefit. Cross-program recovery is a more efficient and reliable collection method than collection by installment payments. This approach is consistent with our policy under amended section 1147 of the Act to apply cross-program recovery in addition to adjusting benefits payable under the program in which the overpayment was made. Moreover, if an individual incurred both an SSI overpayment and a title II overpayment, we would be able to recover both the title II overpayment and the SSI overpayment simultaneously from the title II benefits. For example, if we are collecting a title II overpayment by title II benefit adjustment and a large title II underpayment becomes payable, we could collect the title II overpayment balance from that underpayment and apply any remaining title II past-due benefits to the SSI overpayment.

The final rules with request for comment that were published on January 3, 2005, provided the public with a 30-day comment period. We received one comment.

Comment: The commenter expressed concerns about the repayment ability of title II and SSI beneficiaries, since many have no other income and would not be able to meet their living expenses if cross-program recovery is implemented as planned.

Response: There are procedures in place to accommodate individuals who cannot afford to repay an overpayment by cross-program recovery at the proposed rate. Our new regulations at 20 CFR 404.540, 408.932 and 416.574 state that the written notice of our intention to apply cross-program recovery will advise that the beneficiary may request a different rate of withholding from the amount proposed. If a lower rate is requested, a rate of withholding that is appropriate to the financial condition of the overpaid individual will be set after an evaluation of all the pertinent facts. See 20 CFR 404.508, 404.535(c), 408.923, 408.931(c), 416.571 and 416.573(c). However, we will not withhold at a lower rate if the individual willfully misrepresented or concealed material information in connection with the overpayment. See 20 CFR 404.535(d), 408.931(d), and 461.573(d).

The Office of Management and Budget (OMB) has reviewed these rules in accordance with Executive Order 12866, as amended by Executive Order 13258. We have also determined that these rules meet the plain language requirement of Executive Order 12866, as amended by Executive Order 13258.

We certify that these rules will not have a significant economic impact on a substantial number of small entities because they affect individuals only. Thus, a regulatory flexibility analysis as provided in the Regulatory Flexibility Act, as amended, is not required.

The Paperwork Reduction Act of 1995 (PRA) says that no persons are required to respond to a collection of information unless it displays a valid OMB control number. In accordance with the PRA, SSA is providing notice that OMB has approved the information collection requirements contained in § 408.932(c), (d) and (e) of these final rules. The OMB control number for this collection is 0960-0692, expiring November 30, 2007.

The U.S. 1 Bridge has a vertical clearance in the closed position of 32 feet at mean high water and 37 feet at mean low water. The existing drawbridge operation regulations are listed at 33 CFR 117.207.

The bridge owner, Connecticut Department of Transportation, requested a temporary deviation from the drawbridge operation regulations to facilitate scheduled rehabilitation maintenance at the bridge.

Under this temporary deviation only one of the two-bascule leafs need open for the passage of vessel traffic from April 1, 2005 through May 27, 2005. Two-leaf, full bridge openings, shall be provided after at least a three-day advance notice is given by calling the number posted at the bridge.

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

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Publishing an NPRM and delaying its effective date would be contrary to the public interest, since there is not sufficient time to publish a proposed rule in advance of the event and immediate action is needed to protect persons and vessels against the hazards associated with a fireworks display from a barge, such as premature detonation or falling burning debris.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. This safety zone of short duration is needed to provide for the safety of persons and vessels on the Potomac River and the public at large. Advance notification of the security zone and the fireworks display will be provided to the public via marine information broadcasts and by local media.

On April 2, 2005, the National Cherry Blossom Festival will sponsor a fireworks display from a barge on the Washington Channel, in Washington, DC, in approximate position latitude 38°52′08.5″ N, longitude 077°01′13.0″ W. The event will consist of an aerial fireworks display of short duration. A fleet of spectator vessels is anticipated. Due to the need for vessel control on the waters of the Washington Channel during the event, vessel traffic will be temporarily restricted to provide for the safety of spectators, participants and transiting vessels.

The Coast Guard is establishing a temporary safety zone on specified waters of the Washington Channel. The temporary safety zone will be enforced from 7 p.m. to 9 p.m. eastern standard time on April 2, 2005, with a rain date of April 3, 2005. The effect will be to restrict general navigation in the regulated area during the event. No person or vessel may enter or remain in the safety zone. Vessels will be allowed to transit the waters of the Washington Channel outside the safety zone. This safety zone is needed to control vessel traffic during the event to enhance the safety of participants, spectators and transiting vessels.

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

Although this rule prevents traffic from transiting a portion of the Washington Channel during the event, the effect of this rule will not be significant due to the limited duration of the regulation, limited size of the regulated area, and the extensive notifications that will be made to the maritime community via marine information broadcasts and local media, so mariners can adjust their plans accordingly. We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary.

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

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

This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit or anchor in the effected portions of the Washington Channel from 7 p.m. to 9 p.m. Eastern Standard Time on April 2, 2005 or April 3, 2005 if the rain date becomes necessary.

Although this rule prevents traffic from transiting or anchoring in a portion of the Washington Channel during the event, the effect of this rule will not be significant because of its limited duration, limited area, and the advance notifications that will be made to the maritime community via marine information broadcasts and local media, so mariners can adjust their plans accordingly.

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

Small businesses may send comments on the actions of Federal employees who enforce or otherwise determine compliance with Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guards, call 1-888-REG-FAIR (1-888-743-3247).

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

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

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

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

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

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

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

We have analyzed this rule under Executive Order 12211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have considered the environmental impact of this rule and concluded that, under figure 2-1, paragraph (34)(g), of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation. This regulation establishes a temporary safety zone. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES.

Pursuant to sections 182(b)(2) and 182(f) of the CAA, the Commonwealth of Pennsylvania (the Commonwealth or Pennsylvania) is required to establish and implement RACT for all major VOC and NOX sources. The major source size is determined by its location, the classification of that area and whether it is located in the ozone transport region (OTR). Under section 184 of the CAA, RACT as specified in sections 182(b)(2) and 182(f), applies throughout the OTR. The entire Commonwealth is located within the OTR. Therefore, RACT is applicable statewide in Pennsylvania.

State implementation plan revisions imposing RACT for three classes of VOC sources are required under section 182(b)(2). The categories are:

(1) All sources covered by a Control Technique Guideline (CTG) document issued between November 15, 1990 and the date of attainment;

(2) All sources covered by a CTG issued prior to November 15, 1990; and

(3) All major non-CTG sources.

The Pennsylvania SIP already has approved RACT regulations and requirements for all sources and source categories covered by the CTGs. The Pennsylvania SIP also has approved regulations to require major sources of NOX and additional major sources of VOC emissions (not covered by a CTG) to implement RACT. These regulations are commonly termed the “generic RACT regulations”. A generic RACT regulation is one that does not, itself, specifically define RACT for a source or source categories but instead establishes procedures for imposing case-by-case RACT determinations. The Commonwealth's SIP-approved generic RACT regulations consist of the procedures PADEP uses to establish and impose RACT for subject sources of VOC and NOX. Pursuant to the SIP-approved generic RACT rules, PADEP imposes RACT on each subject source in an enforceable document, usually a Plan Approval (PA) or Operating Permit (OP). The Commonwealth then submits these PAs and OPs to EPA for approval as source-specific SIP revisions.

It must be noted that the Commonwealth has adopted and is implementing additional “post RACT requirements” to reduce seasonal NOX emissions in the form of a NOX cap and trade regulation, 25 Pa Code Chapters 121 and 123, based upon a model rule developed by the States in the OTR. That regulation was approved as SIP revision on June 6, 2000 (65 FR 35842). Pennsylvania has also adopted 25 Pa Code Chapter 145 to satisfy Phase I of the NOX SIP call. That regulation was approved as a SIP revision on August 21, 2001 (66 FR 43795). Federal approval of a source-specific RACT determination for a major source of NOX in no way relieves that source from any applicable requirements found in 25 Pa Code Chapters 121, 123 and 145.

On February 4, 2003, PADEP submitted revisions to the Pennsylvania SIP which establish and impose RACT for five sources of VOC and NOX. The Commonwealth's submittals consist of PAs and OPs which impose VOC and NOX RACT requirements for each source.

Copies of the actual PAs and OPs imposing RACT and PADEP's evaluation memoranda are included in the electronic and hard copy docket for this final rule. As previously stated, all documents in the electronic docket are listed in the RME index at http://www.docket.epa.gov/rmepub/. Publicly available docket materials are available either electronically in RME or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Pennsylvania Department of Environmental Protection, Bureau of Air Quality, P.O. Box 8468, 400 Market Street, Harrisburg, Pennsylvania 17105. The table below identifies the sources and the individual plan approvals (PAs) and operating permits (OPs) which are the subject of this rulemaking.

Pursuant to sections 182(b)(2) and 182(f) of the CAA, the Commonwealth of Pennsylvania (the Commonwealth or Pennsylvania) is required to establish and implement RACT for all major VOC and NOX sources. The major source size is determined by its location, the classification of that area and whether it is located in the ozone transport region (OTR). Under section 184 of the CAA, RACT as specified in sections 182(b)(2) and 182(f) applies throughout the OTR. The entire Commonwealth is located within the OTR. Therefore, RACT is applicable statewide in Pennsylvania.

State implementation plan revisions imposing RACT for three classes of VOC sources are required under section 182(b)(2). The categories are:

(1) All sources covered by a Control Technique Guideline (CTG) document issued between November 15, 1990 and the date of attainment;

(2) All sources covered by a CTG issued prior to November 15, 1990; and

(3) All major non-CTG sources.

The Pennsylvania SIP already has approved RACT regulations and requirements for all sources and source categories covered by the CTGs. The Pennsylvania SIP also has approved regulations to require major sources of NOX and additional major sources of VOC emissions (not covered by a CTG) to implement RACT. These regulations are commonly termed the “generic RACT regulations”. A generic RACT regulation is one that does not, itself, specifically define RACT for a source or source categories but instead establishes procedures for imposing case-by-case RACT determinations. The Commonwealth's SIP-approved generic RACT regulations consist of the procedures PADEP uses to establish and impose RACT for subject sources of VOC and NOX. Pursuant to the SIP-approved generic RACT rules, PADEP imposes RACT on each subject source in an enforceable document, usually a Plan Approval (PA) or Operating Permit (OP). The Commonwealth then submits these PAs and OPs to EPA for approval as source-specific SIP revisions.

It must be noted that the Commonwealth has adopted and is implementing additional “post RACT requirements” to reduce seasonal NOX emissions in the form of a NOX cap and trade regulation, 25 Pa Code Chapters 121 and 123, based upon a model rule developed by the States in the OTR. That regulation was approved as SIP revision on June 6, 2000 (65 FR 35842). Pennsylvania has also adopted 25 Pa Code Chapter 145 to satisfy Phase I of the NOX SIP call. That regulation was approved as a SIP revision on August 21, 2001 (66 FR 43795). Federal approval of a source-specific RACT determination for a major source of NOX in no way relieves that source from any applicable requirements found in 25 PA Code Chapters 121, 123 and 145.

On August 30, 2004, PADEP submitted revisions to the Pennsylvania SIP which establish and impose RACT for ten sources of NOX. The Commonwealth's submittals consist of PAs and OPs which impose NOX RACT requirements for each source.

Copies of the actual PAs and OPs imposing RACT and PADEP's evaluation memorandum are included in the electronic and hard copy docket for this final rule. As previously stated, all documents in the electronic docket are listed in the RME index at http://www.docket.epa.gov/rmepub/. Publicly available docket materials are available either electronically in RME or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Pennsylvania Department of Environmental Protection, Bureau of Air Quality, P.O. Box 8468, 400 Market Street, Harrisburg, Pennsylvania 17105. The table below identifies the sources and the individual PAs and OPs which are the subject of this rulemaking.

EPA is approving these RACT SIP submittals because PADEP established and imposed these RACT requirements in accordance with the criteria set forth in its SIP-approved generic RACT regulations applicable to these sources. The Commonwealth has also imposed recordkeeping, monitoring, and testing requirements on these sources sufficient to determine compliance with the applicable RACT determinations.

EPA is approving the revisions to the Pennsylvania SIP submitted by PADEP to establish and require NOX RACT for ten major sources. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on May 31, 2005 without further notice unless EPA receives adverse comment by April 29, 2005. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves State law as meeting Federal requirements and imposes no additional requirements beyond those imposed by State law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have federalism implications because it does not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a State rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

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

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 804 exempts from section 801 the following types of rules: (1) Rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of particular applicability establishing source-specific requirements for ten named sources.

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 31, 2005. Filing a petition for reconsideration by the Administrator of this final rule approving source-specific RACT requirements for ten sources in the Commonwealth of Pennsylvania does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

On December 1, 2003, the State of Maryland submitted a formal revision (No. 03-13) to its SIP. The SIP revision consists of a revised reference to the Federal definition of VOC at 40 CFR 51.100(s) which is found at COMAR 26.11.01.01B(53), Maryland's definition for “volatile organic compounds (VOC)”. These regulatory revisions became effective on November 24, 2003.

Maryland has amended COMAR 26.11.01.01B(53) to update the Federal reference for incorporation of the EPA definition of VOC found at 40 CFR 51.100(s) from the 2000 edition (the currently SIP-approved version) to the 2002 edition of the Code of Federal Regulations (CFR).

EPA is approving revisions to COMAR 26.11.01.01B(53) of the Maryland SIP to update the references to the EPA definition of VOC found at 40 CFR 51.100(s) in effect as of 12/31/2002. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment since the revisions are administrative changes to the state regulations. However, in the “Proposed Rules” section of today's Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on May 31, 2005 without further notice unless EPA receives adverse comment by April 29, 2005. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 31, 2005. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action to approve Maryland's revised definition of “volatile organic compound (VOC)” may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Pursuant to sections 182(b)(2) and 182(f) of the CAA, the Commonwealth of Pennsylvania (the Commonwealth or Pennsylvania) is required to establish and implement RACT for all major VOC and NOX sources. The major source size is determined by its location, the classification of that area and whether it is located in the ozone transport region (OTR). Under section 184 of the CAA, RACT as specified in sections 182(b)(2) and 182(f) applies throughout the OTR. The entire Commonwealth is located within the OTR. Therefore, RACT is applicable statewide in Pennsylvania.

State implementation plan revisions imposing RACT for three classes of VOC sources are required under section 182(b)(2). The categories are:

(1) All sources covered by a Control Technique Guideline (CTG) document issued between November 15, 1990 and the date of attainment;

(2) All sources covered by a CTG issued prior to November 15, 1990; and

(3) All major non-CTG sources.

The Pennsylvania SIP already has approved RACT regulations and requirements for all sources and source categories covered by the CTGs. The Pennsylvania SIP also has approved regulations to require major sources of NOX and additional major sources of VOC emissions (not covered by a CTG) to implement RACT. These regulations are commonly termed the “generic RACT regulations”. A generic RACT regulation is one that does not, itself, specifically define RACT for a source or source categories but instead establishes procedures for imposing case-by-case RACT determinations. The Commonwealth's SIP-approved generic RACT regulations consist of the procedures PADEP uses to establish and impose RACT for subject sources of VOC and NOX. Pursuant to the SIP-approved generic RACT rules, PADEP imposes RACT on each subject source in an enforceable document, usually a Plan Approval (PA) or Operating Permit (OP). The Commonwealth then submits these PAs and OPs to EPA for approval as source-specific SIP revisions.

It must be noted that the Commonwealth has adopted and is implementing additional “post RACT requirements” to reduce seasonal NOX emissions in the form of a NOX cap and trade regulation, 25 Pa Code Chapters 121 and 123, based upon a model rule developed by the States in the OTR. That regulation was approved as SIP revision on June 6, 2000 (65 FR 35842). Pennsylvania has also adopted 25 Pa Code Chapter 145 to satisfy Phase I of the NOX SIP call. That regulation was approved as a SIP revision on August 21, 2001 (66 FR 43795). Federal approval of a source-specific RACT determination for a major source of NOX in no way relieves that source from any applicable requirements found in 25 PA Code Chapters 121, 123 and 145.

On August 30, 2004, PADEP submitted revisions to the Pennsylvania SIP which establish and impose RACT for four sources of VOC and/or NOX. The Commonwealth's submittals consist of PAs and OPs which impose VOC and/or NOX RACT requirements for each source.

Copies of the actual PAs and OPs imposing RACT and PADEP's evaluation memoranda are included in the electronic and hard copy docket for this final rule. As previously stated, all documents in the electronic docket are listed in the RME index at http://www.docket.epa.gov/rmepub/. Publicly available docket materials are available either electronically in RME or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Pennsylvania Department of Environmental Protection, Bureau of Air Quality, P.O. Box 8468, 400 Market Street, Harrisburg, Pennsylvania 17105. The table below identifies the sources and the individual PAs and OPs which are the subject of this rulemaking.

EPA is approving these RACT SIP submittals because PADEP established and imposed these RACT requirements in accordance with the criteria set forth in its SIP-approved generic RACT regulations applicable to these sources. The Commonwealth has also imposed record-keeping, monitoring, and testing requirements on these sources sufficient to determine compliance with the applicable RACT determinations.

EPA is approving the revisions to the Pennsylvania SIP submitted by PADEP to establish and require VOC and NOX RACT for four major of sources. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on May 31, 2005, without further notice unless EPA receives adverse comment by April 29, 2005. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

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

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 804 exempts from section 801 the following types of rules: (1) Rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of particular applicability establishing source-specific requirements for four named sources.

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 31, 2005. Filing a petition for reconsideration by the Administrator of this final rule approving source-specific RACT requirements for four sources in the Commonwealth of Pennsylvania does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This section provides additional information by addressing the following questions:

Section 110 of the Clean Air Act (CAA) requires states to develop air pollution regulations and control strategies to ensure that state air quality meets the national ambient air quality standards established by EPA. These ambient standards are established under section 109 of the CAA, and they currently address six criteria pollutants. These pollutants are: carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide.

Each state must submit these regulations and control strategies to us for approval and incorporation into the Federally-enforceable SIP.

Each Federally-approved SIP protects air quality primarily by addressing air pollution at its point of origin. These SIPs can be extensive, containing state regulations or other enforceable documents and supporting information such as emission inventories, monitoring networks, and modeling demonstrations.

In order for state regulations to be incorporated into the Federally-enforceable SIP, states must formally adopt the regulations and control strategies consistent with state and Federal requirements. This process generally includes a public notice, public hearing, public comment period, and a formal adoption by a state-authorized rulemaking body.

Once a state rule, regulation, or control strategy is adopted, the state submits it to us for inclusion into the SIP. We must provide public notice and seek additional public comment regarding the proposed Federal action on the state submission. If adverse comments are received, they must be addressed prior to any final Federal action by us.

All state regulations and supporting information approved by EPA under section 110 of the CAA are incorporated into the Federally-approved SIP. Records of such SIP actions are maintained in the Code of Federal Regulations (CFR) at Title 40, part 52, entitled “Approval and Promulgation of Implementation Plans.” The actual state regulations which are approved are not reproduced in their entirety in the CFR outright but are “incorporated by reference,” which means that we have approved a given state regulation with a specific effective date.

Enforcement of the state regulation before and after it is incorporated into the Federally-approved SIP is primarily a state responsibility. However, after the regulation is Federally approved, we are authorized to take enforcement action against violators. Citizens are also offered legal recourse to address violations as described in section 304 of the CAA.

The Iowa Department of Natural Resources (IDNR) requested EPA approval of the 2004 revisions to the Polk County Board of Health Rules and Regulations, Chapter V, Air Pollution, as a revision to the Iowa SIP. The changes were adopted by the Polk County Board of Health Supervisors on January 6, 2004, and became effective the same day.

The following is a description of the revisions to the Polk County Board of Health Rules and Regulations, Air Pollution, Chapter V, which are subject to this approval action:

1. Changes in Definitions. Changes were made to the following definitions found in Article I, 5-2: AQD, emission limitation and emission standard, Health Officer, and EPA reference method. These changes make minor clarifications to the definitions and updates to the references to Federal rules.

2. Revision to general limitation of visible air contaminants. Article IV, 5-9 changes the opacity of visible air contaminants to equal to, or greater than 20 percent or a lesser level as specified in a construction or operating permit. The previous percentage of opacity was 40 percent. This revision will reduce opacity and elevate the protection of air quality.

3. Revision to emission of air contaminants from industrial processes. Article VI, 5-14 revises the emission of particulate matter from any process from 0.1 grain per dry standard cubic foot of exhaust gas, to 0.10 grain per dry standard cubic foot of exhaust gas.

4. Excess emissions. Article VI, 5-17(b) and 5-17(d) is revised to remove the language “other than incident during startup or shutdown.” These revisions make the regulations more stringent by identifying excess emissions during a period of startup or shutdown as violations.

5. A typographical error is corrected in Article VI, 5-17(e) to read as “Subsections (a) through (d)''.

6. Performance test for stack emission test. Article VII, 5-18 makes a reference to “Compliance Sampling Manual”. The revision reflects the most current update of the Manual through March 14, 2001.

7. Article VII, 5-18(a)(3) makes updates to reference the most current Federal rules.

8. Processing of application for permits. Article X, Division 1 (Construction Permits), 5-30 removes the language referring to issuance of construction permits for new major stationary source permits. These permits are not issued by the Polk County Air Quality Division office, but rather by IDNR. The correct title of the Polk County Air Quality Division was also cited to be consistent with the updated definition.

9. Exemptions from permit requirements. Article X, Division 1 (Construction Permits), 5-33, added references to Federal rules to make the SIP more stringent.

10. Article X, Division 1 (Construction Permits), 5-33(18), is a new paragraph for internal combustion engines that exclusively burn natural gas with a brake horsepower rating of less than 100 measured at the shaft. For this exemption, the manufacturer's nameplate rating at full load is defined as the brake horsepower output at the shaft.

11. Article X, Division 2 (Operating Permits), 5-39, added references to Federal rules to make the SIP more stringent.

12. Article X, Division 2 (Operating Permits), 5-39(b)(6) is a new paragraph for internal combustion engines that exclusively burn natural gas with a brake horsepower rating of less than 100 measured at the shaft. For this exemption, the manufacturer's nameplate rating at full load is defined as the brake horsepower output at the shaft.

The state submittal has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submittal also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, as explained above and in more detail in the technical support document which is part of this document, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

EPA is approving a revision to the SIP submitted by the state of Iowa, to approve the 2004 update to the Polk County Board of Health Rules and Regulations, Chapter V, Air Pollution. These revisions will ensure consistency between the applicable local agency rules and Federally-approved rules, and ensure Federal enforceability of the applicable parts of the local agency air programs.

We are taking direct final action to approve this revision. The revisions make routine changes to the existing rules which are noncontroversial. Therefore, we do not anticipate any adverse comments. Please note that if EPA receives adverse comment on part of this rule and if that part can be severed from the remainder of the rule, EPA may adopt as final those parts of the rule that are not the subject of an adverse comment.

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 31, 2005. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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

On March 2, 2004 (69 FR 9776), we proposed approval of revisions and deletions to the Texas SIP pertaining to Texas' excess emissions rule, 30 TAC, General Air Quality Rule 101, Subchapter A, and Subchapter F (September 12, 2002, and January 5, 2004, submittals). Specifically, the revisions address the reporting and recordkeeping, and enforcement actions for excess emissions during SSM activities. The September 12, 2002, and January 5, 2004, submittals primarily address violations of SIP requirements caused by periods of excess emissions due to SSM activities. See section 1 of our March 2, 2004 (69 FR 9776), proposal for additional information.

Generally, since SIPs must provide for attainment and maintenance of the National Ambient Air Quality Standards (NAAQS), all periods of emissions in excess of applicable SIP limitations must be considered violations. The EPA cannot approve a SIP revision that provides an automatic exemption for periods of excess emissions violating a SIP requirement. In addition, excess emissions above applicable emission limitations in title V operating permits are deviations subject to title V reporting requirements.

Today, we are finalizing limited approval of the September 12, 2002, and January 5, 2004, revisions and deletions to the Texas SIP. The submitted revisions strengthen the SIP because they clarify that sources are not exempt from underlying SIP emissions limits where there is an emissions activity. Rather, the source may assert an affirmative defense in an action for penalties concerning the emission activity. The revisions also provide: (a) The commission may issue an order finding that a site has chronic “excessive” malfunctions, (b) if the executive director determines that a facility is having “excessive” malfunctions, the owner or operator must take action to reduce the excess emissions activities and obtain either a corrective action plan or a permit reflecting the control device, other measures, or operational changes required for the said reduction, and (c) the affirmative defense approach for malfunctions does not apply if there is a malfunction at a source under a corrective action plan. This limited approval will strengthen the latest federally approved Texas SIP dated November 28, 2000 (65 FR 70792).

As authorized by section 110(k)(3) of the Act, we are taking final action to grant a limited, rather than full, approval of this rule. We are finalizing this limited approval because we have determined that the rule improves the SIP and is largely consistent with the relevant requirements of the Act. The submittal, as a whole, strengthens the existing Texas SIP. For example, the revised affirmative defense provisions are an improvement over the related provisions in the current SIP, which are removed from the SIP by this action. This limited approval incorporates all of the submitted revisions into the Texas SIP. The entire rule becomes part of the State's approved, federally enforceable SIP and may be enforced by EPA and citizens, as well as by the State. We are finalizing a limited approval of this rule after review of adverse comments in response to our proposed approval of the rule, and in order to ensure national SIP consistency with EPA's interpretation of the Act and policy on excess emissions during SSM activities. Sections 101.221, 101.222, and 101.223 will sunset from State law, and therefore from the SIP, by their own terms, on June 30, 2005 without further action by EPA. Upon expiration of the provisions, all emissions in excess of applicable emission limitations during SSM activities remain violations of the Texas SIP, subject to enforcement actions by the State, EPA or citizens.

The EPA's interpretation of the Act on excess emissions occurring during startup, shutdown or malfunction is set forth in the following documents: A memorandum dated September 28, 1982, from Kathleen M. Bennett, Assistant Administrator for Air, Noise, and Radiation, entitled “Policy on Excess Emissions During Startup, Shutdown, Maintenance, and Malfunctions;” EPA's clarification to the above policy memorandum dated February 15, 1983, from Kathleen M. Bennett, Assistant Administrator for Air, Noise, and Radiation; EPA's policy memorandum reaffirming and supplementing the above policy, dated September 20, 1999, from Steven A. Herman, Assistant Administrator for Enforcement and Compliance Assurance and Robert Perciasepe, Assistant Administrator for Air and Radiation, entitled “State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown” (September 1999 Policy); EPA's final rule for Utah's sulfur dioxide control strategy (Kennecott Copper), 42 FR 21472 (April 27, 1977), and EPA's final rule for Idaho's sulfur dioxide control strategy 42 FR 58171 (November 8, 1977); and the latest clarification of EPA's policy issued on December 5, 2001. See the policy or clarification of policy at: http://www.epa.gov/ttn/oarpg/t1pgm.html.

To find the latest federally approved Texas SIP concerning excess emissions see 65 FR 70792 (November 28, 2000).

Section 101.222(c) addresses excess emissions from scheduled maintenance, startup, or shutdown activities, and section 101.222(e) addresses excess emissions from scheduled maintenance, startup, or shutdown activity from opacity activities. After reviewing the public comments, we believe that these provisions are ambiguous, at best, and inconsistent with the Act, at worst, and could create problems with enforcing the underlying applicable emission limits.

Texas has taken the position that these provisions provide for enforcement discretion by the State. In other words, if the enumerated criteria are met, then the State may exercise its enforcement discretion by choosing not to enforce against periods of excess emissions during scheduled maintenance, startup or shutdown. However, these provisions facially appear to go much further and excuse sources from permitting requirements (101.222(c)) or from the applicable opacity emission limits (101.222(e)) if the criteria are met. Thus, these rules appear to exempt sources from certain applicable SIP requirements. This is inconsistent with the statutory definition of emission limitation. And, if unaccounted for in the SIP, these emissions could interfere, among other things, with the ability of areas within the State to attain and maintain the NAAQS. In addition, to the extent these provisions create an exemption from compliance, rather than simply explain when the State will exercise enforcement discretion, they would prevent EPA or citizen enforcement.

Moreover, it is unclear whether sections 101.222(c) and (e) may provide for an affirmative defense for certain scheduled maintenance activities. In guidance documents issued by EPA and other final rulemakings, we have indicated that scheduled maintenance activities are predictable events that are subject to planning to minimize releases, unlike malfunctions (emission activities), which are sudden, unavoidable or beyond the control of the owner or operator. The EPA's interpretation of Section 110 of the Act and related policies allows an affirmative defense to be asserted against civil penalties in an enforcement action for excess emissions activities which are sudden, unavoidable or caused by circumstances beyond the control of the owner or operator and where emissions control systems may not be consistently effective during startup or shutdown periods. However, EPA has determined that it is inappropriate to provide an affirmative defense for excess emissions resulting from scheduled maintenance, and to excuse these excess emissions from a penalty action. The State may, however, choose to exercise its enforcement discretion for excess emissions due to predictable events such as scheduled maintenance activities. See 42 FR 21472 (April 27, 1977), 42 FR 58171 (November 8, 1977), and 65 FR 51412 (August 23, 2000).

We are today granting a limited approval of the submitted revisions and deletions to the Texas SIP. We cannot fully approve the rule because sections 101.222(c) and (e): (1) Are ambiguous and unclear as to whether they address only State enforcement discretion, (2) might be interpreted to provide exemptions to SIP permitting requirements, and (3) might be interpreted to provide an affirmative defense for excess emissions from scheduled maintenance activities. Because the provisions found in sections 101.222(c) and (e) are not mandatory requirements of the Act and because section 101.222 will expire from the SIP by its own terms on June 30, 2005, no further action by Texas to correct the rule is necessary. Upon expiration of the provisions, all emissions in excess of applicable emission limitations during SSM activities remain violations of the Texas SIP, subject to enforcement action by the State, EPA or citizens. However, if Texas revises its rules to include an affirmative defense for excess emissions in the Texas SIP in the future, the State should ensure that the revisions do not contain exemptions from permitting or other SIP requirements, that the affirmative defense does not apply to excess emissions from scheduled maintenance activities, and, if the State wishes to codify its enforcement discretion, that terms are clear and do not bar or limit enforcement actions taken by EPA or citizens for excess emissions which exceed applicable SIP emission limitations. Any revisions should continue to recognize that emissions in excess of applicable emission limitations and SIP requirements are violations of the Texas SIP, subject to enforcement actions by the State, EPA or citizens. If the State submits a revised rule addressing excess emissions during SSM activities, EPA will review the rule for consistency with the requirements of the Act and EPA policy. Below, we summarize and respond to comments received during the public comment period on the proposed March 2, 2004 (69 FR 9776), Texas SIP revision.

We received one set of written comment on the March 2, 2004 (69 FR 9776), proposed Texas SIP revision. The comment was submitted jointly by the Environmental Integrity Project, Environmental Defense, Galveston-Houston Association for Smog Prevention, Refinery Reform, Community InPower and Development Association, Citizens for Environmental Justice, and Public Citizen's Texas Office (the Commenters).

Our responses to the written comments concerning the proposed March 2, 2004 (69 FR 9776), Texas SIP revision are as follows:

Comment #1: The Commenters state that Texas' rule is an improvement over its previous illegal exemption provisions; however, the rule still creates an affirmative defense which is too broad.

Response to Comment #1: We appreciate the Commenters' statement that the Texas excess emissions rule approved today into the Texas SIP is an improvement over its previous version, which is removed from the SIP by this action. The criteria and conditions constituting the affirmative defense approach, as incorporated in the rule, are those identified in EPA's 1999 policy on excess emissions. This improvement, in part, constitutes our rationale for a limited approval of this Texas SIP revision. However, we agree with Commenters that the affirmative defense may be too broad because, as discussed above, it appears to be available for certain maintenance activities. The EPA's interpretation of Section 110 of the Act and related policies allow an affirmative defense to be asserted against civil penalties in an enforcement action for excess emissions activities which are sudden, unavoidable or beyond the control of the owner or operator and where emissions controls may not be consistently effective during startup or shutdown periods. The State may choose to exercise its enforcement discretion for excess emissions from predictable events such as scheduled maintenance activities.

Comment #2: The Commenters state that EPA should disapprove sections 101.222(c) and (e) of Texas' submittal because these provisions maintain an exemption for excess emissions resulting from scheduled startup, shutdown and maintenance. The Commenters believe that the language in section 101.222(c) exempts certain excess emissions from compliance with permitted limits and thus means that no enforcement action can be taken for those periods of excess emissions. The Commenters cite to previous pronouncements by EPA that excess emissions during periods of startup and shutdown must be treated as violations. In addition, the Commenters reject as unfounded the statement by Texas that these exempted emissions are below the level required for inclusion in permits under the Texas Health and Safety Code. The Commenters note that there is no limit on how large these emissions might be.

Response to Comment #2: Section 101.222(c) generally addresses excess emissions from scheduled maintenance, startup, or shutdown activities and section 101.222(e) addresses excess opacity emissions resulting from scheduled maintenance, startup, or shutdown activities. On its face, both sections 101.222(c) and (e) establish criteria similar to those that EPA established for purposes of an affirmative defense. The Texas rule provides that emissions from scheduled startup, shutdown or maintenance must be included in a permit unless the owner or operator of a source proves that all of the criteria are met. The State has explained to EPA that it construes this provision as establishing enforcement discretion on the part of the State. They have explained that where the criteria are not met, then the State may enforce against a source for a violation of the applicable emissions limitation for the period of excess emissions.

Upon further reading of the Texas rule, we are not convinced that the State's interpretation of the rule is likely to prevail if challenged. We think it is plausible that if EPA or a citizen group sought to enforce against a source which contends to have met the criteria specified in section 101.222(c), the source would offer a defense that such emissions were not subject to permitting requirements and were therefore not violations. Additionally, we are concerned about the interpretation of section 101.222(e), which also seems to provide an exemption from the applicable emission limits if a source can prove that the specified criteria are met. Again, the State has indicated that it interprets this provision not as excusing the source from compliance, but rather as a tool for the exercise of enforcement discretion on the part of the State. However, upon further review, we think the language is ambiguous at best and could well be construed by a court as excusing a source from compliance for these periods of excess emissions. Thus, even if the State chose not to enforce against a source where it believes the source has met the specified criteria, we believe it is possible that a court would dismiss any suit by EPA or citizens to enforce on the basis that the source was not subject to the underlying emission limit.

We believe that at best these provisions are ambiguous and, at worst, do in fact exempt sources from compliance with underlying emission limits if the specified criteria are met. Based on this conclusion, we have concerns about the effect of these provisions on the enforceability of applicable emission limits, and thus have concluded that we cannot fully approve the SIP. As stated above, however, we believe that the new rule, as a whole, strengthens the SIP and we are granting a limited approval of the SIP revisions.

Comment #3: The Commenters state that EPA should only approve sections 101.222(b) and 101.222(d) with the clarification that affirmative defense does not apply to federally performance-based standards. The Commenters state the Texas' rule will allow the affirmative defense to apply to violations of performance based Federal standards such as NSPS and NESHAP.

Response to Comment #3: Chapter 101 addresses violations of SIP requirements caused by periods of excess emissions due to SSM activities. For clarification and public record purposes, all of the federally promulgated performance or technology-based standards, and other Federal requirements, such as those found in 40 CFR parts 60, 61, and 63; and titles IV, and VI of the Act remain in full effect, and are independent of today's approval of revisions to the Texas SIP. We also want to make clear that today's limited approval of the Texas excess emissions rule into the Texas SIP may not, under any circumstances, be construed as rescinding, replacing, or limiting applicable Federal requirements regardless of the source's category or locality.

Comment #4: The Commenters state the affirmative defense in Texas' rule should not apply where a single source or small group has the potential to cause an exceedance of the NAAQS.

Response to Comment #4: We believe the Texas rule, which places the burden on the source asserting an affirmative defense to demonstrate that the specific activity at issue did not contribute to an exceedance of the NAAQS or PSD increments or to a condition of air pollution, is appropriate. Subsection 101.222(b)(11) requires the source or operator to prove that “unauthorized emissions did not cause or contribute to an exceedance of the NAAQS, prevention of significant deterioration (PSD) increments, or to a condition of air pollution.” This provision ensures that an affirmative defense could not be sustained for an emissions activity for which the owner or operator has failed to prove that the event did not cause or contribute to an exceedance of the NAAQS, PSD increments or to a condition of air pollution.

Comment #5: The Commenters state the Texas' rule allows boilers and combustion turbines to escape reporting requirements.

Response to Comment #5: Subsection 101.201(a)(3) concerns notification for reportable emissions activities involving boilers or combustion turbines. Subsection 101.211(a)(2) concerns the notification for a scheduled maintenance, startup, or shutdown activity involving a boiler or combustion turbine. Also see subsection 101.201(d) of the rule. We do not believe that Texas' reporting requirements for excess emissions exclude boilers or combustion turbines. For these reasons we disagree with the Commission.

Comment #6: The Commenters state that EPA should announce its intent to automatically re-issue a Notice of Deficiency (NOD) to the State should Texas adopt revised rules prior to June 30, 2005, that do not comply with the Act and EPA's guidance. The Commenters are concerned that Texas may rescind the existing rules and adopt new rules before June 30, 2005 and once again be in the position of being unable to enforce the excess emissions provision in the SIP.

Response to Comment #6: The present record does not provide sufficient information to enable the Agency to make a determination of whether a notice of deficiency under title V of the Act would be warranted for the circumstances forecast by petitioners.1 The Agency would need to review the rule allegedly causing the title V program deficiency to determine whether a violation of title V has occurred. However, at this stage, Commenters are only speculating as to future revisions to the rules that the State might or might not adopt. The Agency also balances a number of other factors in determining whether to issue a notice of deficiency, including allocation of agency resources, likelihood of success in pursuing enforcement through an NOD, likelihood of resolving a program flaw through other mechanisms, and how enforcement in a particular situation fits within the Agency's overall policies. It is not practicable to review these factors prior to the time a revision to the Texas rules would warrant such review.

This concludes our responses to the written comments we received during public comment period concerning March 2, 2004 (69 FR 9776), Texas proposed SIP revision.

These rule revisions affect all sources of air emissions operating within the State of Texas.

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 31, 2005. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Throughout the document “we,” “us,” or “our” means EPA.

The Clean Air Act (the Act) Amendments of 1990 required all States to develop operating permits programs that meet Title V of the Act, 42 U.S.C. 7661-7661f, and its implementing regulations, 40 CFR part 70. Texas' operating permit program was submitted in response to this directive on November 15, 1993. We promulgated interim approval of the Texas Title V program on June 25, 1996 (61 FR 32693) and the program became effective on July 25, 1996. Subsequently, we promulgated full approval of the Texas Title V program effective November 30, 2001 (66 FR 63318, December 6, 2001). As explained in the proposed and final full approval, we granted full approval based on our finding that Texas had corrected the deficiencies identified at the time of the interim approval (66 FR at 51897 (October 11, 2001); 66 FR 63319). See also Public Citizen v. EPA, 343 F.3d 449 (5th Cir. 2003) (denying petitions for review challenging full approval).

Since the interim approval, members of the public filed comments with EPA alleging other deficiencies in the Texas Title V program, and EPA conducted a review of the issues raised. Section 502(i) of the Act and 40 CFR 70.10(b)(1) provide that whenever EPA makes a determination that a State is not adequately administering and enforcing its program in accordance with the requirements of Title V, EPA shall issue a notice to the State.

EPA published a notice of deficiency (NOD) for Texas' Title V Operating Permit Program on January 7, 2002 (67 FR 732). The NOD was based upon our finding that several State requirements did not meet the minimum Federal requirements of 40 CFR part 70 and the Act. TCEQ adopted rule revisions to resolve the deficiencies identified in the January 7, 2002, NOD. These rule revisions became effective, as a matter of State law, on December 11, 2002. TCEQ submitted these rule changes to EPA as a revision to its Title V Operating Permit Program on December 9, 2002. TCEQ also included, in the December 9, 2002, submittal, other regulatory revisions that strengthen Texas' program. On July 9, 2003 (68 FR 40871), we proposed to approve the revisions submitted December 9, 2002, as revisions to Texas Title V operating permits program. We received one comment letter in response to the proposal and our consideration of those comments is summarized in section IV of this preamble. We are approving the Texas rule revisions included in the December 9, 2002, submittal in today's action. The December 9, 2002, submittal also included provisions which TCEQ requested that we approve as revisions to its SIP. We approved those SIP revisions submitted December 9, 2002, on November 14, 2003 (68 FR 64543). We have prepared a Technical Support Document which contains a detailed analysis of our evaluation of this action. The Technical Support Document is available at the address listed above. Elsewhere in today's Federal Register, we are also taking final action to grant limited SIP approval of revisions to Title 30 of the Texas Administrative Code (30 TAC) 101.211, 101.221, 101.222, and 101.223, addressing the reporting, recordkeeping and enforcement requirements for excess emissions during startup, shutdown, and malfunction activities. The State has incorporated these provisions into its definition of “applicable requirement” for the Title V program.

In today's action, we are approving revisions as identified below which TCEQ adopted November 20, 2002 (submitted to EPA December 9, 2002) and find that those revisions and final SIP approval of revisions published on November 14, 2003 and elsewhere in today's Federal Register resolve the deficiencies identified in the January 7, 2002, NOD.

The requirement for periodic monitoring set forth in 40 CFR 70.6(a)(3)(i)(B) states that each Title V permit must include periodic monitoring sufficient to yield reliable data from the relevant time period that are representative of the source's compliance with the permit where the applicable requirement does not require periodic testing or instrumental or noninstrumental monitoring.

TCEQ previously implemented periodic monitoring requirements through a phased approach which used either a periodic monitoring GOP or on a case-by-case determination. As a result, all permits did not have periodic monitoring when they were issued. To address the NOD, TCEQ has revised 30 TAC 122.132 and 122.142, and repealed 30 TAC 122.600, 122.604, 122.606, 122.608, 122.610, and 122.612 to ensure that all Title V permits, including all GOPs, contain periodic monitoring requirements that meet the requirements of 40 CFR 70.6(a)(3)(i)(B) when issued. TCEQ has repealed the periodic monitoring and CAM GOPs identified in the NOD and adopted 30 TAC 122.132(e)(13) to require permit applications to include periodic monitoring requirements consistent with part 70. TCEQ has amended 30 TAC 122.142(c) and 30 TAC 122.602 to require periodic monitoring which is consistent with part 70 to be included in all Title V permits, including GOPs, when the permit is issued. The revisions require that periodic monitoring be included in Title V permits at initial issuance under 30 TAC 122.201, permit renewals under 30 TAC 122.243, permit reopenings under 30 TAC 122.231(a) and (b), significant revisions under 30 TAC 122.221, and at minor permit revisions under 30 TAC 122.217. We are today approving the revised rules and the State's repeals as a revision to Texas' Title V program and find that the revisions satisfy Texas' requirement to correct the program deficiency identified in the January 7, 2002, NOD.

CAM is implemented through 40 CFR part 64 and 40 CFR 70.6(a)(3)(i)(A) and requires Title V permits to include “all monitoring and analysis procedures or test methods required under applicable monitoring and testing requirements, including [40 CFR part] 64 . . .” 40 CFR 64.5 provides that CAM applies at permit renewal unless the permit holder has not filed a Title V permit application by April 20, 1998, or the Title V permit application has not been determined to be administratively complete by April 20, 1998. CAM also applies to a Title V permit holder who filed a significant permit revision under Title V after April 20, 1998.

TCEQ previously implemented CAM through either a CAM GOP or a case-by-case CAM determination. TCEQ's use of a phased approach did not ensure that all permits would include CAM required by 40 CFR 70.6(a)(3)(i)(A), according to the schedule in 40 CFR 64.5, because a facility did not have to apply for a CAM GOP until two years after the CAM GOP had been issued. To address the NOD, TCEQ has revised the sections of Chapter 122 relating to application content and permit content, to ensure that all permits, including GOPs, include CAM requirements according to the schedule in 40 CFR 64.5. TCEQ amended 30 TAC 122.132(e)(12) to specify that applications for units subject to CAM must be submitted according to the schedule specified in 40 CFR 64.5. TCEQ amended 30 TAC 122.142(h) to require that permits contain CAM in accordance with the schedule in 40 CFR 64.5. TCEQ adopted new 30 TAC 122.221(b)(4) to specify that the Executive Director may issue a significant permit revision if CAM is included for large pollutant-specific emission units, consistent with 40 CFR 64.5(a)(2). TCEQ also adopted 30 TAC 122.147, which specifies the terms and conditions that apply to units subject to CAM requirements, and 30 TAC 122.604 which address CAM applicability. These new and revised rules require that all permits issued after the effective date of the rule include CAM according to the schedule in 40 CFR part 64. We are today approving the revised, amended, and new rules as a revision to Texas' Title V program and find that the revisions satisfy Texas' requirement to correct the program deficiency identified in the January 7, 2002, NOD.

The content requirements for part 70 permits are set forth in 40 CFR 70.6 and include periodic monitoring and CAM as permit conditions of all Title V permits. Also, 40 CFR 70.6(d)(1) provides that “any general permit shall comply with all requirements applicable to other part 70 permits.” TCEQ previously implemented CAM and periodic monitoring requirements through CAM and periodic monitoring GOPs which did not meet Title V's definition of, or requirements for, general permits. The terms and conditions of Texas' periodic monitoring GOPs and CAM GOPs contained only monitoring requirements, monitoring options, and related monitoring requirements for certain applicable requirements and therefore were missing a number of the requirements of 40 CFR 70.6.

To address the NOD, TCEQ amended Chapter 122 to require that all GOPs include periodic monitoring and CAM, and to eliminate the monitoring GOP process. To ensure that all permits are issued containing periodic monitoring and CAM, the TCEQ adopted amendments requiring periodic monitoring and CAM to be addressed in permit applications and to be included in issued permits. As discussed above, revised 30 TAC 122.132(e)(12) specifies that applications for units subject to CAM must contain elements specified in 40 CFR 64.3, Monitoring Design Criteria, and 40 CFR 64.4, Submittal Requirements. As revised, 30 TAC 122.132(e)(13) requires that applications for all initial permit issuances, renewals, reopenings, and significant and minor permit revisions include periodic monitoring requirements. TCEQ amended 30 TAC 122.142(c), which previously specified that periodic monitoring is only included as required by the Executive Director, and 30 TAC 122.142(h), which previously specified that permits include CAM as specified in Subchapter H. The amendments state that permits must contain periodic monitoring and CAM in accordance with the schedule in 40 CFR 64.5. These amendments will require permits to contain all requirements specified in 40 CFR 70.6. TCEQ eliminated the monitoring GOP process by adopting the repeal of all sections from Subchapters G and H that implemented monitoring through the GOP process. In addition to the previously mentioned periodic monitoring sections that were repealed, TCEQ repealed all of the CAM requirements contained in Subchapter H. The CAM applicability section and the section pertaining to quality improvement plans are adopted under Subchapter G, renamed Periodic Monitoring and Compliance Assurance Monitoring. TCEQ also adopted several amendments to Chapter 122 to clarify periodic monitoring and CAM implementation and to delete any reference to the monitoring GOP process.

TCEQ also amended the GOP definition at 30 TAC 122.10(11) to specify that multiple similar sources may be authorized to operate under a GOP, consistent with the requirement at 40 CFR 70.6(d) that general permits are limited to numerous similar sources. 30 TAC 122.501(a)(1) requires the Executive Director to issue GOPs with conditions that provide for compliance with all requirements of Chapter 122. TCEQ also revised 30 TAC 122.161 to make related miscellaneous changes.

We are today approving the new and revised rules and the repeals as a revision to Texas' Title V program and find that the revisions satisfy Texas' requirement to correct the program deficiency identified in the January 7, 2002, NOD.

40 CFR 70.7(a)(5) requires that “[t]he permitting authority shall provide a statement that sets forth the legal and factual basis for the draft permit conditions (including references to the applicable statutory or regulatory provisions). The permitting authority shall send this statement to EPA and to any other person who requests it.” TCEQ regulations previously had no State regulation directly corresponding to 40 CFR 70.7(a)(5), and no other State regulations were identified that otherwise gave effect to this requirement. To address the NOD, TCEQ adopted new 30 TAC 122.201(a)(4), which requires that all permits issued by the Executive Director must include a statement that sets forth the legal and factual basis for the conditions of the permit, including references to the applicable statutory or regulatory provisions. The Executive Director will send this statement to EPA and any person who requests it. The statement of basis is required for all initial issuances, revisions, renewals and reopenings of permits. We are today approving the new rule as a revision to Texas' Title V program and find that the revisions satisfy Texas' requirement to correct the program deficiency identified in the January 7, 2002, NOD.

Texas' definition of “applicable requirement” in 30 TAC 122.10(2) previously did not include all the applicable provisions of its SIP that implemented relevant requirements of the Act as required by 40 CFR 70.2. To address the NOD, TCEQ has amended its definition of “applicable requirement” in 30 TAC 122.10(2) to include citations to the relevant requirements of the Act which were identified in the NOD and others identified after issuance of that notice. The applicable requirement definition now includes 30 TAC 101.1, which relates to definitions; 30 TAC 101.3, which relates to circumvention; 30 TAC 101.201, 101.211, 101.221, 101.222, and 101.223, which relate to emissions events and maintenance, startup, and shutdown (“MSS”) reporting requirements; 30 TAC 101.8 and 101.9, which relate to sampling and sampling ports, and 30 TAC 101.10, which relates to emissions inventory requirements.1 We are today approving the revised rule as a revision to Texas' Title V program and find that, together with the final SIP approval published elsewhere in this Federal Register, the revisions satisfy Texas' requirement to correct the program deficiency identified in the January 7, 2002, NOD.

Major sources subject to the requirement to obtain a Title V permit are those sources whose potential to emit certain air pollutants exceed threshold emissions levels specified in the Act. A source may legally avoid the requirement to obtain a Title V permit by limiting its potential to emit to levels below the applicable major source threshold. This can be done by taking a federally enforceable limit on the PTE, which ensures that the conditions placed on the emissions to limit a source's PTE are enforceable as both a legal and practical matter, or through PTE limits that are legally and practically enforceable by a State or local air pollution control agency.2 Those permit conditions, if violated, are subject to enforcement by EPA, the State or local agency, or by citizens.

Texas' Title V regulations previously allowed a facility to keep all documentation of its PTE limitation registrations on site without providing those documents to the State or to EPA; therefore, the PTE limitations were not practically enforceable. Also, the limitations were not federally enforceable because the Texas regulations at issue were not part of the Texas SIP. TCEQ has revised 30 TAC 122.122, and, though not required by the NOD, also revised similar PTE registration rules in its preconstruction review program (30 TAC 106.6, 116.115, 116.611). These changes require registrations to be submitted to the Executive Director, to the appropriate Commission regional office, and all local air pollution control agencies, and a copy shall be maintained on-site of the facility. TCEQ is also required to make the records available to the public upon request. Thus, these changes cure the previous deficiency regarding practicable enforceability caused by the lack of notice to the State. TCEQ also submitted these changes for approval as a SIP revision. We approved the amended 30 TAC 106.6, 116.115, 116.611, and 122.122 as revisions to the Texas SIP on November 14, 2003 (68 FR 64543). Our final SIP approval of these changes made the PTE limits in the certified registrations legally enforceable by EPA. We are also today approving the revised rules in 30 TAC 122 as a revision to Texas' Title V program and find that, together with the final SIP approval which was published November 14, 2003, the revisions satisfy Texas' requirement to correct the program deficiency identified in the January 7, 2002, NOD.

TCEQ also included in the December 9, 2002, submittal other regulatory revisions that strengthen Texas' program. Today's action also approves these revisions to the Texas Title V Operating Permit Program submitted on December 9, 2002, which relate to credible evidence and concurrent review.

TCEQ has revised its definition of “deviation” at 30 TAC 122.10(5) and 122.132(e)(4)(B) to require sources to consider “any credible evidence or information” to certify compliance. We are today approving this revision as consistent with part 70 and EPA's credible evidence rule, 62 FR 8314 (February 24, 1997).

TCEQ has revised its regulations concerning EPA review of Title V permits at 30 TAC 122.350(B)(1) to provide that EPA's review period may not run concurrently with the State public review period if any comments are submitted or if a public hearing is requested. We are today approving this revision as consistent with section 505(b) of the Act and 40 CFR 70.8.

On July 9, 2003 (68 FR 40871), we proposed to approve the revisions submitted December 9, 2002, as revisions to Texas Title V operating permits program. In the proposal, we requested that the public submit comments no later than August 8, 2003. We received one comment letter submitted jointly by Public Citizen, Inc., SEED Coalition, Galveston-Houston Association for Smog Prevention, Sierra Club and Hilton Kelley with four comments. Our response to those comments follows:

Comment 1. Lack of Monitoring in General Operating Permits (GOPs). The commenters provided the following comments relating to lack of monitoring in GOPs that are applicable to certain categories of sources.

Comment 1A. Commenters stated that Texas has not acted to revise its existing GOPs which fail to include applicable requirements and fail to include required monitoring for those requirements. Commenters also note that Texas issues GOPs to facilities that have site-specific requirements that are not included in the GOP, such as minor or major new source review (NSR) or prevention of significant deterioration (PSD) permit terms. Therefore, those applicable requirements cannot be reviewed by EPA or the public to ensure that monitoring sufficient to assure compliance with those permit terms is included in the Title V operating permit.

Response 1A. This comment raises an issue beyond the scope of the deficiency identified in the NOD. EPA identified the deficiency regarding periodic monitoring and compliance assurance monitoring as a deficiency in the regulations. EPA stated: “Texas's periodic monitoring regulations do not meet the requirements of part 70 and must be revised,” citing problems with the approach of implementing the requirement through a monitoring GOP and use of a phased approach which could delay implementation of periodic monitoring after issuance of a Title V permit. 67 FR at 733. We then concluded that the State “must revise its regulations to ensure that all Title V permits, including all GOPs, when issued, contain periodic monitoring that meets the requirements of 70.6(a)(3)(i)(B).” Id. (emphasis added). EPA made parallel findings for the State's CAM regulations. 67 FR at 734 (“The TNRCC 3 regulations do not meet the requirements of the Act and part 70, and TNRCC must revise its regulations to ensure that all Title V permits, including all GOPs, will have the CAM required by [40] CFR 70.6(a)(3)(i)(A), according to the schedule in 40 CFR 64.5”). EPA also provided instructions to the State on proper implementation of the periodic monitoring and CAM requirements in individual Title V permits.4 However, these instructions did not render the monitoring provisions of all Title V permits in the State subject to the NOD. The NOD is clear on its face that only the monitoring regulations were the subject of the NOD and thus were required to be revised.

Nonetheless, EPA notes that it is exercising its oversight authority to ensure that the existing GOPs are corrected. Thus, EPA obtained a commitment and time line from the TCEQ Executive Director in December 2003 to revise all existing GOPs to include periodic monitoring and compliance assurance monitoring. Under this commitment and time line, TCEQ will revise all existing GOPs to ensure the applicability requirements for existing GOPs exclude sources with site-specific requirements. On February 27, 2004 Texas revised the Bulk Fuel Terminal GOP 515 and the Site-Wide GOP 516 to require all affected sources to submit an application for a site operating permit (“SOP”) by September 1, 2004. Facilities subject to these GOPs generally have site-specific applicable requirements. Once all SOPs are issued, the GOPs No. 515 and 516 will be rescinded. The Oil and Gas GOPs 511-514 and Municipal Solid Waste Landfill GOP 517 will also be revised in 2005 to include the specific permits by rule and standard permits that apply to those facilities and to exclude sources with site-specific requirements from the applicability criteria for those GOPs.

Comment 1B. Commenters also requested that their comments and attachments be treated as a Petition to Reopen all existing GOPs pursuant to 40 CFR 70.7(g) to clarify that no source with case or permit-specific applicable requirements may be covered by a GOP if EPA failed to resolve this issue during our review of changes to the Texas operating permits program in response to the NOD.

Response 1B. In light of the State's commitment to make the required changes to its GOPs and the State's actions to initiate those changes, EPA believes there is no need to reopen the existing GOPs as commenter requests. EPA has reviewed and provided comments on the first revision to the Bulk Fuel Terminal and Site-Wide GOPs. Also, commenters have the opportunity to review and comment on the draft GOP permits under 40 CFR 70.7(h), and if necessary, petition EPA to object to a proposed permit under 40 CFR 70.8(a) and (c).

Comment 2. Statement of Basis. Commenters state that the current statements of basis being drafted by TCEQ do not provide the public with an understanding of the decision-making that went into development of the Title V permit. Because Texas is still not implementing the statement of basis requirement as specified in EPA's rules and guidance, this deficiency has not been corrected.

Response 2. By adopting regulatory language which tracks the requirement in 40 CFR 70.7(a)(5), Texas has satisfied the requirement to revise its regulations consistent with 70.7(a)(5). Whether any individual Title V permit contains an inadequate statement of basis is beyond the scope of the deficiency identified in the NOD. EPA intends to address concerns about the adequacy of individual statements of basis through the permit review process. This process includes opportunity for the public to review and comment on the draft permit under 40 CFR 70.7(h), EPA's review, and, if necessary, EPA objection to a proposed permit under 40 CFR 70.8(a) and (c), affected state review under 40 CFR 70.7(b), and the public petition process under 40 CFR 70.8(d).

Comment 3. PTE Limits in Registrations. Commenters submitted the following comments related to PTE registrations:

Comment 3A. The commenters believe that the rules should require that registrations used to limit PTE below any federal limit, including nonattainment NSR and PSD, be submitted to the agency. As EPA noted in the NOD, if PTE limits are merely kept on site, they are not practically enforceable. Because NSR and PSD are applicable requirements under Title V, Title V must assure compliance with these requirements.

Response to Comment 3A. Although the NOD cited only the deficiency in the PTE registration requirements in Chapter 122, the State made conforming changes in its preconstruction review provisions which address the commenter's concerns. The regulations require such PTE registrations to be incorporated into the Title V permit as applicable requirements. The PTE registrations under 30 TAC 106.6 and 116.611 are approved as part of the SIP and are applicable requirements under the part 70 5 . As applicable requirements, these PTE registrations must be submitted to the reviewing agency (the TCEQ) for incorporation into the source's Title V operating permit. In order to be incorporated into the Title V permit, the owner or operator must provide the relevant information concerning the registration to the permitting authority for incorporation into the Title V permit. Such information must be subject to public participation and review by EPA under 40 CFR 70.7(h) and 70.8.

For permits by rule, relevant information that must be incorporated includes all representations with regard to construction plans, operating procedures, and maximum emission rates, which become conditions upon which the facility permitted by rule shall be constructed and operated. See 30 TAC 106.6(b). This includes certification of maximum emission rates which establish federally enforceable allowable emission rates which are below the emission limitations in 30 TAC 106.4.

For standard permits, relevant information that must be incorporated include the basis of emission rates, quantification of all emission increases and decreases associated with the project being registered, sufficient information as may be necessary to demonstrate that the project will comply with 30 TAC 116.610(b) 6 , information that describes efforts being taken to minimize any collateral emissions increases that will result from the project, a description of the project and related process, and a description of any equipment being installed. See 30 TAC 116.611(a).

Thus, the registrations which limit a source's PTE to below a threshold which triggers applicability of PSD or NSR under 30 TAC 106.6 and 116.611 are applicable requirements under Title V and must be documented in each Title V permit as described above.

Comment 3B. The rules should include a short-term limit on emissions so that compliance can be determined in a timely manner (not a tons per year limit). The rules should include production or operational limits (not just emission limits) and specific monitoring and reporting to demonstrate compliance with the limit. The general requirement to keep records necessary to demonstrate compliance is not practically enforceable because it is too vague.

Response to Comment 3B. This comment raises issues beyond the scope of the deficiency identified in the NOD. The NOD identified the lack of practicably enforceable PTE limits as being caused by the lack of notice of PTE registrations to the State. We stated: “One of the requirements for practicable enforceability is notice to the State. Under 30 TAC 122.122, there is no requirement that the State be notified and the registrations are kept on site. Therefore, neither the public, TNRCC, or EPA know what the PTE limit is without going to the site. A facility could change its PTE limit several times without the public or TNRCC knowing about the change. Therefore, these limitations are not practically enforceable, and TNRCC must revise this regulation to make the regulation practically enforceable.” Thus, the State has cured the deficiency by providing that PTE registrations must be submitted to the State. Nevertheless, EPA notes that the rules under these citations require that a source be able to demonstrate compliance with a certification in a manner that is practically enforceable. This includes information that enables the enforcement authority to verify at any time that the source is in compliance with the terms of its registration. TCEQ rules require registrations to “include documentation of basis of emission rates.” See 30 TAC 122.122(c). Such documentation may include appropriate restrictions on operation and/or production which the source relies upon to limit its PTE below major source threshold. Similar requirements are also in 30 TAC 106.6(d) (for permits by rule) and 30 TAC 116.611(a)(1)-(6) (for standard permits).The monitoring and reporting are generally required in 30 TAC 106.8 (for permits by rule), 30 TAC 116.115(8) (for standard permits), and 30 TAC 122.122(f) (for Title V PTE registrations). Furthermore, a specific permit by rule, standard permit, or registration will also contain additional requirements for monitoring and recordkeeping which the source is required to maintain and which is sufficient to limit the source's PTE.

In summary, the regulations which pertain to the registration of emissions in 30 TAC 106.6, 116.115, 116.611, and 122.122 were approved on November 14, 2003 (68 FR 64543).7 The regulations allow a source limit its PTE of a pollutant below the level of a major source defined in the Act. This includes regulations which Texas revised to allow an owner or operator of a source to register and certify restrictions and limitations that the owner or operator will meet to maintain its PTE below the major source threshold. The changes require the owner or operator to submit the certified registrations to the Executive Director of TCEQ, the appropriate TCEQ regional office, and all local air pollution control agencies having jurisdiction over the site. The changes to 30 TAC 122.122 satisfactorily address the NOD by requiring that PTE registrations are submitted to the State.

Comment 4. “Applicable requirement” Definition. Commenters believe that Texas’ applicable requirement definition at 30 TAC 122.10(2) does not incorporate all of the relevant provisions of the Texas SIP because it defines the term by reference to specific State regulations, instead of a general reference to the “relevant requirements of the SIP.” There is not a one-to-one correlation between the State's regulation and the SIP provisions. Thus, some SIP provisions that implement the CAA requirements are excluded from the Texas definition of “applicable requirement.” Commenters cite as an example the State's newly adopted regulation for the definition of reportable quantities at 30 TAC 101.1(84)(p) and (q) rather than the SIP-approved rule. Texas submitted its new definition of reportable quantities to EPA for approval as a SIP revision on September 12, 2002.

Commenters also disagree with EPA's decision in the NOD to confine applicable requirements to those requirements that implement the relevant requirements of the Act, on the ground that it is at odds with Title V, citing 42 U.S.C. 7661a(b)(5)(C). They state that SIPs may include emission limits that transcend the requirements of the Act.

Response 4. EPA disagrees with the commenter. As a threshold matter, EPA reasonably determined in the NOD that “there is no requirement that the State adopt a definition to generally state that any current provision of the SIP is an applicable requirement. A State may cite to specific provisions of its administrative code. * * *” We described the SIP provisions that must be included in the definition of “applicable requirement” as those that “implement the relevant requirements of the Act,” the standard set forth in 40 CFR 70.2. It is inappropriate to revisit those determinations here, as the time for a challenge to 30 TAC 70.2 or the NOD has expired [and the State has reasonably relied on the standards set forth in 30 TAC 70.2 and the NOD in undertaking its corrective action].

Furthermore, EPA has reviewed the rule cited by commenters (30 TAC 101.1(84)(p) and (q)) and found it to be approvable. The proposed approval was published in the Federal Register on March 2, 2004 (41 FR 9776). We are today granting limited approval of the SIP revision elsewhere in this Federal Register which ensures that Texas' definition of “applicable requirement” is complete with respect to the SIP-approved emissions event and MSS reporting rules. Because Texas has chosen to adopt a definition of applicable requirement that lists SIP citations rather than the general definition as set forth in 40 CFR 70.2, the State will be required to revise its Title V program in the future as it adopts an applicable requirement elsewhere in the SIP that is not listed in the definition of applicable requirement in its Title V regulations.

We are approving revisions to Texas' regulations for periodic monitoring regulations, CAM regulations, periodic monitoring and CAM GOPs, statement of basis requirement, applicable requirement definition, and PTE registration regulations as revisions to Texas' Title V air operating permits program. We are also approving revisions to the Texas Title V operating permits program submitted on December 9, 2002, which relate to credible evidence and concurrent review. The rule revisions submitted by Texas, as stated above, are in response to the NOD. Based upon our limited approval of the revisions to Chapter 101 elsewhere in today's Federal Register, our approval today of the December 9, 2002 revisions to the Texas operating permits program, and our November 14, 2003, final SIP approval of potential to emit requirements, Texas has satisfactorily addressed the deficiencies identified by EPA in the January 7, 2002 NOD. This final action also removes any resulting consequences under the Act, including sanctions, with respect to the January 7, 2002 NOD.

This approval does not extend to “Indian Country”, as defined in 18 U.S.C. 1151. In its operating permits program submittal, Texas does not assert jurisdiction over Indian lands or reservations. To date, no tribal government in Texas has authority to administer an independent Title V program in the State. On February 12, 1998, EPA promulgated regulations under which Indian tribes could apply and be approved by EPA to implement a Title V operating permit program (40 CFR part 49). For those Indian tribes that do not seek to conduct a Title V operating permit program, EPA has promulgated regulations (40 CFR part 71) governing the issuance of Federal operating permits in Indian country. 64 FR 8247, February 19, 1999.

Under Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget (OMB). Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities because it merely approves State law as meeting Federal requirements and imposes no additional requirements beyond those imposed by State law. This rule does not contain any unfunded mandates and does not significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) because it approves pre-existing requirements under State law and does not impose any additional enforceable duties beyond that required by State law. This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000). This rule also does not have Federalism implications because it will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, “Federalism” (64 FR 43255, August 10, 1999). The action merely approves existing requirements under State law, and does not alter the relationship or the distribution of power and responsibilities between the State and the Federal government established in the Clean Air Act. This rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) or Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355) (May 22, 2001), because it is not a significant regulatory action under Executive Order 12866. This action will not impose any collection of information subject to the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., other than those previously approved and assigned OMB control number 2060-0243. For additional information concerning these requirements, see 40 CFR part 70. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), 15 U.S.C. 272 note, requires Federal agencies to use technical standards that are developed or adopted by voluntary consensus to carry out policy objectives, so long as such standards are not inconsistent with applicable law or otherwise impracticable. In reviewing State Operating Permit Programs submitted pursuant to Title V of the Clean Air Act, EPA will approve such regulations provided that they meet the requirements of the Clean Air Act and EPA's regulations codified at 40 CFR part 70. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove such regulations for failure to use VCS. It would, thus, be inconsistent with applicable law for EPA, when it reviews such regulations, to use VCS in place of a State regulation that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the NTTAA do not apply.

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 31, 2005. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

This is a summary of the Commission's Declaratory Ruling and Report and Order in CC Docket 01-92, adopted February 17, 2005, and released February 24, 2005. The full text of this document may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160. It is also available on the Commission's Web site at http://www.fcc.gov.

Background: On September 6, 2002, T-Mobile USA, Inc., Western Wireless Corporation, Nextel Communications and Nextel Partners jointly filed a petition for declaratory ruling asking the Commission to affirm that wireless termination tariffs are inconsistent with federal law governing reciprocal compensation arrangements for the transport and termination of traffic and, therefore, not a proper mechanism for establishing such arrangements. In a public notice published in the Federal Register, 67 FR 64120-01, October 17, 2002, the Commission sought comment on the issues raised in the T-Mobile Petition. Further, the Commission determined that the T-Mobile Petition raised issues under consideration in an ongoing rulemaking proceeding, CC Docket 01-92, Developing a Unified Intercarrier Compensation Regime. In this proceeding, the Commission had released a Notice of Proposed Rulemaking (Intercarrier Compensation NPRM), 66 FR 28410, May 23, 2001, which initiated a comprehensive review of interconnection compensation issues and raised questions concerning, among other things, the appropriate regulatory framework to govern interconnection, including compensation arrangements, between LECs and CMRS providers. The Commission therefore incorporated the T-Mobile Petition and responsive comments into the rulemaking record.

Discussion: Because the Act and the existing rules do not preclude tariffed compensation arrangements, and because wireless termination tariffs that apply only in the absence of an interconnection agreement are not inconsistent with the compensation standards of sections 251 and 252 of the Act or of § 20.11 of the Commission's rules, and because the tariffs do not prevent a competitive carrier from obtaining a compensation agreement through the negotiation and arbitration procedures of section 252, we find that incumbent LECs were not prohibited under federal law from filing such tariffs. Going forward, however, we amend our rules to make clear our preference for contractual arrangements by prohibiting LECs from imposing compensation obligations for non-access CMRS traffic pursuant to tariff. In addition, we amend our rules to clarify that an incumbent LEC may request interconnection from a CMRS provider and invoke the negotiation and arbitration procedures set forth in section 252 of the Act.

We find that negotiated agreements between carriers are more consistent with the pro-competitive process and policies reflected in the 1996 Act. Accordingly, we amend § 20.11 of the Commission's rules to prohibit LECs from imposing compensation obligations for non-access traffic pursuant to tariff. Therefore, any existing wireless termination tariffs shall no longer apply upon the effective date of these amendments to our rules. After that date, in the absence of a request for an interconnection agreement, no compensation will be owed for termination of non-access traffic. We take this action pursuant to our plenary authority under sections 201 and 332 of the Act.

In light of our decision to prohibit the use of tariffs to impose termination charges on non-access traffic, we find it necessary to ensure that LECs have the ability to compel negotiations and arbitrations, as CMRS providers may do today. Accordingly, we amend § 20.11 of our rules to clarify that an incumbent LEC may request interconnection from a CMRS provider and invoke the negotiation and arbitration procedures set forth in section 252 of the Act. A CMRS provider receiving such a request must negotiate in good faith and must, if requested, submit to arbitration by the state commission. In recognition that the establishment of interconnection arrangements may take more than 160 days, we also establish interim compensation requirements under § 20.11 of the Commission's rules consistent with those already provided in § 51.715 of the Commission's rules.

This document does not contain proposed information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), Pub. L. 104-13. In addition, therefore, it does not contain any new or modified “information collection burden for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Pub. L. 107-198, see 44 U.S.C. 3506(c)(4).

As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Intercarrier Compensation NPRM in CC Docket No. 01-92. The Commission sought written public comment on the proposals in the Intercarrier Compensation NPRM, including comment on the issues raised in the IRFA. Relevant comments received are discussed below. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA. To the extent that any statement in this FRFA is perceived as creating ambiguity with respect to Commission rules or statements made in the sections of the order preceding the FRFA, the rules and statements set forth in those preceding sections are controlling.

In the Intercarrier Compensation NPRM, the Commission acknowledged a number of problems with the current intercarrier compensation regimes (access charges and reciprocal compensation) and discussed a number of areas where a new approach might be adopted. Among other issues, the Commission asked commenters to address the appropriate regulatory framework governing interconnection, including compensation arrangements, between LECs and CMRS providers. Subsequently, the Commission received a petition for declaratory ruling filed by CMRS providers (T-Mobile Petition) asking the Commission to find that state wireless termination tariffs are not the proper mechanism for establishing reciprocal compensation arrangements between incumbent LECs and CMRS providers. The T-Mobile Petition was incorporated into the Commission's intercarrier compensation rulemaking proceeding, along with the comments, replies, and ex partes filed in response to the petition.

In this Declaratory Ruling and Report and Order (Order), the Commission denies the T-Mobile Petition because neither the Act nor the existing rules preclude an incumbent LEC's use of tariffed compensation arrangements in the absence of an interconnection agreement or a competitive carrier's request to enter into one. On a prospective basis, however, the Commission amends its rules to prohibit the use of tariffs to impose compensation obligations with respect to non-access CMRS traffic and to clarify that an incumbent LEC may request interconnection from a CMRS provider and invoke the negotiation and arbitration procedures set forth in section 252 of the Act, and that during the period of negotiation and arbitration, the parties will be entitled to compensation in accordance with the interim rate provisions set forth in § 51.715 of the Commission's rules. By clarifying these interconnection and compensation obligations, the Commission will resolve a significant carrier dispute pending in the marketplace that has provoked a substantial and increasing amount of litigation, and will facilitate the exchange of traffic between wireline LECs and CMRS providers and encourage the establishment of interconnection and compensation terms through the negotiation and arbitration processes contemplated by the 1996 Act.

In the IRFA, the Commission noted the numerous problems that had developed under the existing rules governing intercarrier compensation, and it sought comment on whether proposed new approaches would encourage efficient use of, and investment in the telecommunications network, and whether the transition would be administratively feasible. In response to the Intercarrier Compensation NPRM, the Commission received 75 comments, 62 replies, and numerous ex parte submissions. In addition, a number of additional comments, replies, and ex partes were submitted in this proceeding in connection with the T-Mobile petition. Those comments expressly addressed to the IRFA raised concerns regarding the more comprehensive reform proposals discussed in the Intercarrier Compensation NPRM rather than the more narrow LEC-CMRS issues addressed in this Order.

In connection with the issues we address here, several parties commenting on the T-Mobile Petition expressed concern that striking down tariffs would impose a burden on rural incumbent LECs. They argued that LECs lacked the ability under the law to obtain a compensation agreement with CMRS providers without the inducement to negotiate provided by tariffs, and further asserted that small carriers would be adversely impacted by any obligation to terminate CMRS traffic without compensation. Conversely, some carriers expressed a concern that the negotiation and arbitration process was an inefficient method of establishing a compensation arrangement between two carriers where the traffic volume between them was small, and argued that non-negotiated arrangements were therefore a better method of imposing compensation obligations. We address these issues in section E of the FRFA.

The RFA directs agencies to provide a description of, and, where feasible, an estimate of the number of small entities that may be affected by rules adopted herein. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one that: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).

In this section, we further describe and estimate the number of small entity licensees and regulatees that may also be indirectly affected by rules adopted pursuant to this Order. The most reliable source of information regarding the total numbers of certain common carrier and related providers nationwide, as well as the number of commercial wireless entities, appears to be the data that the Commission publishes in its Trends in Telephone Service report. The SBA has developed small business size standards for wireline and wireless small businesses within the three commercial census categories of Wired Telecommunications Carriers, Paging, and Cellular and Other Wireless Telecommunications. Under these categories, a business is small if it has 1,500 or fewer employees. Below, using the above size standards and others, we discuss the total estimated numbers of small businesses that might be affected by our actions.

We have included small incumbent LECs in this present RFA analysis. As noted above, a “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard (e.g., a telephone communications business having 1,500 or fewer employees), and “is not dominant in its field of operation.” The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent LECs are not dominant in their field of operation because any such dominance is not “national” in scope. We have therefore included small incumbent LECs in this RFA analysis, although we emphasize that this RFA action has no effect on Commission analyses and determinations in other, non-RFA contexts.

Wired Telecommunications Carriers. The SBA has developed a small business size standard for Wired Telecommunications Carriers, which consists of all such companies having 1,500 or fewer employees. According to Census Bureau data for 1997, there were 2,225 firms in this category, total, that operated for the entire year. Of this total, 2,201 firms had employment of 999 or fewer employees, and an additional 24 firms had employment of 1,000 employees or more. Thus, under this size standard, the majority of firms can be considered small.

Local Exchange Carriers. Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to local exchange services. The closest applicable size standard under SBA rules is for Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 1,310 carriers reported that they were incumbent local exchange service providers. Of these 1,310 carriers, an estimated 1,025 have 1,500 or fewer employees and 285 have more than 1,500 employees. In addition, according to Commission data, 563 companies reported that they were engaged in the provision of either competitive access provider services or competitive local exchange carrier services. Of these 563 companies, an estimated 472 have 1,500 or fewer employees and 91 have more than 1,500 employees. In addition, 37 carriers reported that they were “Other Local Exchange Carriers.” Of the 37 “Other Local Exchange Carriers,” an estimated 36 have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that most providers of local exchange service, competitive local exchange service, competitive access providers, and “Other Local Exchange Carriers” are small entities that may be affected by the rules and policies adopted herein.

Incumbent Local Exchange Carriers (LECs). We have included small incumbent local exchange carriers in this present RFA analysis. As noted above, a “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard (e.g., a telephone communications business having 1,500 or fewer employees), and “is not dominant in its field of operations.” The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent local exchange carriers are not dominant in their field of operation because any such dominance is not “national” in scope. We therefore include small incumbent local exchange carriers in this RFA analysis, although we emphasize that this RFA action has no effect on Commission analyses and determinations in other, non-RFA contexts.

Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to incumbent local exchange services. The closest applicable size standard under SBA rules is for Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 1,337 carriers reported that they were engaged in the provision of local exchange services. Of these 1,337 carriers, an estimated 1,032 have 1,500 or fewer employees and 305 have more than 1,500 employees. Consequently, the Commission estimates that most providers of incumbent local exchange service are small businesses that may be affected by the rules and policies adopted herein.

Competitive Local Exchange Carriers (CLECs), Competitive Access Providers (CAPs), and “Other Local Exchange Carriers.” Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to providers of competitive exchange services or to competitive access providers or to “Other Local Exchange Carriers,” all of which are discrete categories under which TRS data are collected. The closest applicable size standard under SBA rules is for Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 609 companies reported that they were engaged in the provision of either competitive access provider services or competitive local exchange carrier services. Of these 609 companies, an estimated 458 have 1,500 or fewer employees and 151 have more than 1,500 employees. In addition, 35 carriers reported that they were “Other Local Service Providers.” Of the 35 “Other Local Service Providers,” an estimated 34 have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that most providers of competitive local exchange service, competitive access providers, and “Other Local Exchange Carriers” are small entities that may be affected by the rules and policies adopted herein.

Wireless Service Providers. The SBA has developed a small business size standard for wireless firms within the two broad economic census categories of “Paging” and “Cellular and Other Wireless Telecommunications.” Under both SBA categories, a wireless business is small if it has 1,500 or fewer employees. For the census category of Paging, Census Bureau data for 1997 show that there were 1,320 firms in this category, total, that operated for the entire year. Of this total, 1,303 firms had employment of 999 or fewer employees, and an additional 17 firms had employment of 1,000 employees or more. Thus, under this category and associated small business size standard, the great majority of firms can be considered small. For the census category Cellular and Other Wireless Telecommunications, Census Bureau data for 1997 show that there were 977 firms in this category, total, that operated for the entire year. Of this total, 965 firms had employment of 999 or fewer employees, and an additional 12 firms had employment of 1,000 employees or more. Thus, under this second category and size standard, the great majority of firms can, again, be considered small.

Wireless Telephony. Wireless telephony includes cellular, personal communications services, and specialized mobile radio telephony carriers. The SBA has developed a small business size standard for “Cellular and Other Wireless Telecommunications” services. Under that SBA small business size standard, a business is small if it has 1,500 or fewer employees. According to the most recent Trends in Telephone Service data, 447 carriers reported that they were engaged in the provision of wireless telephony. We have estimated that 245 of these are small under the SBA small business size standard.

Cellular Licensees. The SBA has developed a small business size standard for wireless firms within the broad economic census category “Cellular and Other Wireless Telecommunications.” Under this SBA category, a wireless business is small if it has 1,500 or fewer employees. For the census category Cellular and Other Wireless Telecommunications firms, Census Bureau data for 1997 show that there were 977 firms in this category, total, that operated for the entire year. Of this total, 965 firms had employment of 999 or fewer employees, and an additional 12 firms had employment of 1,000 employees or more. Thus, under this category and size standard, the great majority of firms can be considered small. According to the most recent Trends in Telephone Service data, 447 carriers reported that they were engaged in the provision of cellular service, personal communications service, or specialized mobile radio telephony services, which are placed together in the data. We have estimated that 245 of these are small, under the SBA small business size standard.

In this Order, the Commission adopts new rules that prohibit incumbent LECs from imposing non-access compensation obligations pursuant to tariff, and permit LECs to compel interconnection and arbitration with CMRS providers. Under the new rules, CMRS providers and LECs, including small entities, must engage in interconnection agreement negotiations and, if requested, arbitrations in order to impose compensation obligations for non-access traffic. The record suggests that many incumbent LECs and CMRS providers, including many small and rural carriers, already participate in interconnection negotiations and the state arbitration process under the current rules. For these carriers, our new rules will not result in any additional compliance requirements. For LECs that have imposed compensation obligations for non-access traffic pursuant to state tariffs, however, the amended rules require that these LECs, including small entities, participate in interconnection negotiations and, if requested, the state arbitration process in order to impose compensation obligations. Conversely, the new rules obligate CMRS providers, including small entities, to participate in a negotiation and arbitration process upon a request by incumbent LECs.

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

The Commission denies a petition for declaratory ruling filed by CMRS providers asking the Commission to find that state wireless termination tariffs are not the proper mechanism for establishing reciprocal compensation arrangements between LECs and CMRS providers. The Commission considered and rejected a finding that state wireless termination tariffs are not the proper mechanism for establishing reciprocal compensation arrangements between LECs and CMRS providers because the current rules do not explicitly preclude such arrangements and these tariffs ensure compensation where the rights of incumbent LECs to compel negotiations with CMRS providers are unclear. On a prospective basis, however, the Commission amends its rule to prohibit the use of tariffs to impose compensation obligations with respect to non-access CMRS traffic and to clarify that an incumbent LEC may request interconnection from a CMRS provider and invoke the negotiation and arbitration procedures set forth in section 252 of the Act.

As a general matter, our actions in this Order should benefit all interconnected LECs and CMRS providers, including small entities, by facilitating the exchange of traffic and providing greater regulatory certainty and reduced litigation costs. Further, we directly address the concern of small incumbent LECs that they would be unable to obtain a compensation arrangement without tariffs by providing them with a new right to initiate a section 252 process through which they can obtain a reciprocal compensation arrangement with any CMRS provider.

The Commission considered and rejected the possibility of permitting wireless termination tariffs on a prospective basis. Although establishing contractual arrangements may impose burdens on CMRS providers and LECs, including some small entities, that do not have these arrangements in place, we find that our approach in the Order best balances the needs of incumbent LECs to obtain terminating compensation for wireless traffic and the pro-competitive process and policies reflected in the 1996 Act. We also note that, during this proceeding, both CMRS providers and rural incumbent LECs have repeatedly emphasized their willingness to engage in a negotiation and arbitration process to establish compensation terms. In the Further Notice of Proposed Rulemaking adopted by the Commission on February 10, 2005, we seek further comment on ways to reduce the burdens of such a process.

The Commission will send a copy of the Declaratory Ruling and Report and Order, including this FRFA, in a report to be sent to Congress pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the Declaratory Ruling and Report and Order, including this FRFA, to the Chief Counsel for Advocacy of the Small Business Administration. In addition, the Declaratory Ruling and Report and Order, including this FRFA—or summaries thereof—will be published in the Federal Register.

Pursuant to the authority contained in sections 1-5, 7, 10, 201-05, 207-09, 214, 218-20, 225-27, 251-54, 256, 271, 303, 332, 403, 405, 502 and 503 of the Communications Act of 1934, as amended, 47 U.S.C. 151-55, 157, 160, 201-05, 207-09, 214, 218-20, 225-27, 251-54, 256, 271, 303, 332, 403, 405, 502, and 503, and §§ 1.1, 1.421 of the Commission's rules, 47 CFR 1.1, 1.421, this Declaratory Ruling and Report and Order in CC Docket No. 01-92 is adopted, and that part 20 of the Commission's rules, 47 CFR Part 20, is amended as set forth below.

The rule revisions adopted in this Declaratory Ruling and Report and Order shall become effective April 29, 2005.

The Petition for Declaratory Ruling filed by T-Mobile USA, Inc., Western Wireless Corporation, Nextel Communications and Nextel Partners is denied as set forth herein.

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

In a direct final rule published on January 3, 2005 (70 FR 41-50), we notified the public of our intent to amend the AGAR to reflect changes in the FAR made by Federal Acquisition Circulars (FACs) 97-02 through 2001-24 and to implement changes in USDA delegated authorities and internal procedures since October 2001.

We solicited comments concerning the direct final rule for a 30 day comment period ending February 2, 2005. We stated that the effective date of the proposed amendment would be April 4, 2005, unless we received adverse comments or notice of intent to submit adverse comments by the close of the comment period.

We received neither adverse comments nor notice of intent to submit adverse comments by February 2, 2005. We received one comment objecting to USDA marketing programs and to the burden on taxpayers of rulemaking. This comment is not considered adverse because it raises no objection germane to the substance of the proposed direct final rule. The rule does not address marketing programs, marketing studies or agricultural studies, but establishes procedures for acquisition personnel to follow in researching sources of supply prior to acquiring supplies or services. The general comment concerning taxpayer burden does not relate to this rule or the rulemaking procedures USDA followed in promulgating the rule. Therefore, the direct final rule is effective on April 4, 2005, as scheduled.

This Federal Register document is available on the Government Printing Office's website at: www.gpoaccess.gov/fr/index.html.

Background information and documents are available at the NMFS Northwest Region website at: www.nwr.noaa.gov/1sustfsh/gdfsh01.htm and at the Pacific Fishery Management Council's website at: www.pcouncil.org.

The Pacific Coast Groundfish FMP and its implementing regulations at title 50 in the Code of Federal Regulations (CFR), part 660, subpart G, regulate fishing for over 80 species of groundfish off the coasts of Washington, Oregon, and California. Groundfish specifications and management measures are developed by the Pacific Fishery Management Council (Pacific Council), and are implemented by NMFS. The specifications and management measures for 2005-2006 were codified in the CFR (50 CFR Part 600, Subpart G) and published in the Federal Register as a proposed rule on September 21, 2004 (69 FR 56550), and as a final rule on December 23, 2004 (69 FR 77012).

Most of the following changes to current groundfish management measures were recommended by the Pacific Council, in consultation with Pacific Coast Treaty Indian Tribes and the States of Washington, Oregon, and California, at its March 6-11, 2005, meeting in Sacramento, CA. The changes recommended by the Pacific Council include: (1) a reduction in the limited entry fixed gear sablefish fishery Tier 1 limit, (2) a revision to the language in 660.381 and in the limited entry trawl trip limit table (Table 3 (North)) regarding more than one type of trawl gear onboard a vessel north of 40°10′ N. lat., (3) the addition of a row in the trip limits tables mentioning that the states may have trip limits that are more restrictive than Federal trip limits, (4) a reduction in the marine fish bag limit off Oregon, (5) a reduction in the (rockfish, cabezon, greenling complex) (RCG complex), bag limits for cabezon and greenling off California, (6) minor corrections to individual coordinates for the RCA boundaries approximating the 40 fm (73 m), 150 fm (274 m), and 200 fm (366 m) curves.

Additional changes implemented by NMFS through this inseason action include: (1) the addition of Pt. Chehalis, Washington (46°53.30′ N. lat.) to the list of “commonly used geographic coordinates” at 660.302, (2) a correction to references to 660.310 (gear restrictions and gear identification) in 660.306, (3) the addition of language in the trip limit tables to specifically refer to conservation areas, (4) the addition of language in the limited entry fixed gear and open access trip limit tables south of 40°10′ N. lat. to clarify regulations for the rockfish conservation areas (RCAs) around islands. Pacific Coast groundfish landings will be monitored throughout the year, and further adjustments to trip limits or management measures will be made as necessary to allow achievement of, or to avoid exceeding, optimum yields (OYs).

At the Pacific Council's March meeting, NMFS released an updated analysis of the 2005 limited entry fixed gear fishery for sablefish. NMFS conducted this analysis using the same modeling approach as used for the 2004 fishery, but updated the analysis with more recent observer data. NMFS had conducted preliminary analysis of tier limits in the primary fishery and bycatch associated with all limited entry fixed gear sablefish fishing in advance of the 2005 fishing season. Since that 2004 analysis, an additional year of observer and fishticket data has been incorporated into the model. The model now uses data from 2001 through 2004, with progressively lower weight given to data from earlier years. For further information on the bycatch model, the West Coast Observer Program, and bycatch mitigation in the groundfish fisheries, see the preamble to the proposed rule for the 2005-2006 fishery specifications and management measures (69 FR 56550, September 21, 2004).

As in 2004, coastwide annual ratios of sablefish discard and overfished species bycatch in the sablefish tier fishery were calculated for two depth strata: greater than 100 fm (183 m) and greater than 150 fm (274 m). These strata reflect the seaward boundaries of the non-trawl RCAs, as currently specified for the areas north and south of 40°10′ N. lat., respectively. Sablefish discard, as a percentage of estimated total catch compared to prior years' estimates, increased for pot gear and decreased for line gear with the inclusion of observer and fishticket data from the 2004 fishery. The differences in the sablefish discard ratios between longline and pot gear largely offset each other, resulting in a minor change in the available tier cumulative limits. For most overfished species, bycatch ratios remained roughly the same. However, estimates of lingcod bycatch increased over 2004 estimates for both gear types within both depth strata. This result may be due to the trend of increasing biomass for northern lingcod evident in the most recent stock assessment for lingcod and because most observed sablefish trips occurred off Oregon and Washington. Projected incidental catch of lingcod changes by the largest amount of any of the depleted species, increasing by 2.4 mt. Projected canary rockfish incidental catch is estimated to increase by 0.2 mt. None of the remaining incidental catch estimates changed by more than 0.1 mt from the original projections for this fishery. These changes in estimates of incidental catch are within the OYs for those species.

Therefore, the Pacific Council recommended and NMFS is implementing a reduction in the limited entry fixed gear sablefish fishery Tier 1 cumulative limit from 64,100 lb (29,075 kg) to 64,000 lb (29,030 kg) to keep the harvest of sablefish within harvest targets for this fishery.

Federal regulations at 50 CFR 660.381(c)(4) address the question of which trawl trip limits apply to vessels that are carrying more than one type of trawl gear on board. Table 3 of part 660, subpart G provides trawl trip limits that vary by trawl gear type—large and small footrope gear, versus selective flatfish gear. North of 40°10′ N. lat., only selective flatfish trawl gear is permitted shoreward of the trawl RCA. Because the trip limits differ for the different gear types, NMFS must provide regulations on which trip limits apply to a vessel that uses more than one type of trawl gear during a cumulative limit period, or that carries more than one type of trawl gear on board during a fishing trip. The regulations NMFS implemented on January 1, 2005 (69 FR 77012) for more than one type of trawl gear on board have proven to be confusing for the public; thus, the agency worked with the Pacific Council at its March 2005 meeting on clarifying regulatory language for trawl fishery participants.

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

In accordance with § 679.20(c)(3)(ii), the 2005 TAC of pollock specified for the West Yakutat District of the GOA is 1,688 metric tons (mt) as established by the 2005 and 2006 final harvest specifications for groundfish of the GOA (70 FR 8958, February 24, 2005).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2005 TAC of pollock specified for the West Yakutat District of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 1,638 mt, and is setting aside the remaining 50 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for pollock in the West Yakutat District of the GOA.

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

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

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

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