Because there may be new information available relevant to the Store and Forward provision at 7 CFR 274.12(n) of this rule since the last comment period, the Department is soliciting further public comment, on this provision only, for 60 days. The Store and Forward provision is discussed under the heading, Back-up System, in the preamble. Effective dates of the provision are discussed in the subsequent paragraph under Implementation. All comments received will be analyzed, and any appropriate changes in the rule will be incorporated in the subsequent publication of a final rule.

This rule has been determined to be significant and was reviewed by the Office of Management and Budget (OMB) under Executive Order 12866. This rule, however, is not economically significant, since it is not expected to have an economic impact on the economy of $100 million or more in any one year.

The Food Stamp Program is listed in the Catalog of Federal Domestic Assistance under No. 10.551. For the reasons set forth in the final rule in 7 CFR Part 3015, Subpart V and related Notice (48 FR 29115), this Program is excluded from the scope of Executive Order 12372, which requires intergovernmental consultation with State and local officials.

Executive Order 13132 requires Federal agencies to consider the impact of their regulatory actions on State and local governments and consult with them as they develop and carry out those policy actions. The Food and Nutrition Service (FNS) has considered the impact of this rule, which changes numerous requirements for approval and operations of Electronic Benefit Transfer (EBT) systems to deliver food stamp benefits. All of the provisions in this rule are discretionary. FNS is not aware of any case where any of these provisions would in fact preempt State law. Prior to drafting this final and the proposed rule, we received input from State agencies at various times. Several of the provisions are in direct response to State agency concerns and some, in fact, codify policies already implemented by State agencies operating EBT systems. Since the Food Stamp Program (FSP) is a State administered, federally funded program, our national headquarters staff and regional offices have informal and formal discussions with State and local officials on an ongoing basis regarding EBT implementation issues. This arrangement allows State agencies to provide feedback that forms the basis for many discretionary decisions in this and other FSP rules. In addition, we sent representatives to regional, national, and professional conferences to discuss our issues and receive feedback on EBT implementation.

This rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612). Eric M. Bost, the Under Secretary for Food, Nutrition, and Consumer Services has certified that this final rule will not have a significant economic impact on a substantial number of small entities. State and local welfare agencies will be the most affected to the extent that they administer the Program.

In accordance with the Paperwork Reduction Act of 1995, the reporting and recordkeeping requirements contained in this final rule were submitted and approved by OMB under OMB No. 0584-0083. FNS published a proposed rule in which comments were solicited from the public for 60 days on the proposed decrease in burden hours. No comments were received. This final rule includes revisions of collection of information pertaining to Advanced Planning Documents (APD) required of State agencies requesting funding for an EBT system for food stamps.

Under section 7(i) of the Food Stamp Act of 1977 (FSA) (7 U.S.C. 2016(i)), as amended, the Secretary is authorized to permit State agencies to implement Electronic Benefit Transfer (EBT) systems. The Secretary is authorized to establish standards for the required testing prior to implementation of any EBT system and may require analysis of the implementation results in a limited pilot project area before expansion of the system. Any State requesting funding for an EBT system must submit a written plan of action called an APD to FNS.

In the final rule, we are revising FSP rules affecting the standards for approval and operation of Food Stamp EBT systems. Several of the provisions will reduce the amount of information required for a State agency to submit as part of the standard APD. We are making these revisions in response to the evolution of EBT over time, which has rendered some of the information we are currently collecting unnecessary.

With provisions in this regulation, we are eliminating or reducing the reporting requirements as described below.

• State agencies will no longer need to provide FNS with the written planning and implementation APD approvals from other participating Federal agencies, or indicate that approval is being sought simultaneously from other participating Federal agencies.

• State agencies will be required to submit a substantially abbreviated planning APD compared to what is currently required. The document will include a brief letter of intent, a budget, a cost allocation plan and a schedule of activities and deliverables.

• State agencies will no longer need to submit an acceptance test report unless FNS is not present at the testing or if serious problems are found during the test.

• State agencies will no longer have to submit quarterly pilot project reports, but rather, report problems or issues to FNS when they occur or are identified.

• State agencies will not be required to submit a pilot cost analysis.

• The State agency will not need to submit an APD update requesting FNS approval to expand EBT operations beyond the pilot area unless there are substantive changes to the implementation plan. State agencies may expand EBT simultaneously with pilot operations, unless significant problems arise.

The burden estimates, as currently approved by OMB under OMB No. 0584-0083, are revised as follows below. Appropriate forms will be submitted to OMB.

Estimates of Burden: We estimate the provisions of this rule, as listed above, will reduce the amount of time each State agency spends on an APD for EBT by 10 hours, for an overall decrease in burden hours of 100 hours annually, bringing the total time down to 35 hours per respondent.

Respondents: State agencies.

Estimated Number of Respondents: 10 State agencies per year.

Estimated Number of Responses per Respondent: One.

Estimated Annual Number of Responses: 10.

Estimated Total Annual Burden on Respondents: 350 hours.

FNS is committed to compliance with the Government Paperwork Elimination Act (GPEA), which requires Government agencies to provide the public the option of submitting information or transacting business electronically to the maximum extent possible. This rule accomplishes the intent of the GPEA by facilitating Electronic Benefit Transfer (EBT) system implementation for the Food Stamp Program (FSP), and thereby eliminating the need to print, distribute and handle paper food stamp coupons in operation of the FSP.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is intended to have preemptive effect with respect to any State or local laws, regulations or policies which conflict with its provisions or which would otherwise impede its full implementation. This rule is not intended to have retroactive effect unless so specified in the “Effective Date” paragraph of this preamble. Prior to any judicial challenge to the provisions of this rule or the application of its provisions, all applicable administrative procedures must be exhausted. In the FSP, the State administrative procedures for Program benefit recipients are issued pursuant to 7 U.S.C. 2020(e)(10) of the FSA and regulations at 7 CFR 273.15; for State agencies, the administrative procedures are issued pursuant to 7 U.S.C. 2023 of the FSA and regulations at 7 CFR 276.7 (for rules related to non-quality control (QC) liabilities) or 7 CFR Part 283 (for rules related to QC liabilities); for Program retailers and wholesalers, the administrative procedures are issued pursuant to Section 14 of the FSA (7 U.S.C. 2023) and 7 CFR 278.8.

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

This rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, and tribal governments or the private sector of $100 million or more in any one year. Thus, this rule is not economically significant, nor subject to the requirements of sections 202 and 205 of the UMRA.

A proposed rule was published in the Federal Register on July 12, 2001 at 66 FR 36495 to implement provisions to revise food stamp regulations affecting the standards for approval and operation of Food Stamp EBT Systems. Comments on the proposed rule were solicited through September 10, 2001. This final action takes the comments received into account. Readers are referred to the proposed regulation for more complete understanding of this final action. The revisions will streamline administration of the program, offer greater flexibility to State agencies in enacting policy, and improve customer service. Other provisions have been clarified in order to facilitate EBT implementation by State agencies.

Seventeen comment letters were received in response to the proposed rule. Individual comments were received from 8 State agencies. Of the remaining letters, 3 were from retailers or retailer associations, 2 were from EBT processors, 2 were from EBT industry trade groups, and 2 were from consumer advocacy groups. In addition, the Department solicited supplementary comments specifically on the Store and Forward provision of this rule. The two sessions held for this purpose were the National Automated Clearinghouse Association (NACHA) meeting in Coral Gables, Florida in April 2004 and the Electronic Funds Transfer Association meeting in Chicago, Illinois in May 2004. Input was received from State agencies, retailers/retailer associations, EBT processors and Third Party Processors at these sessions.

In general, the commenters supported the Department's efforts to revise the EBT rules and welcomed the attempts to reduce burdens, increase State flexibility, streamline and reduce the need for some waivers. The specific provisions are discussed below.

Regulations at 7 CFR 274.12(b)(1) require that State agencies submit APD for approval of EBT systems. We are clarifying in this final rule our expectation that State agencies continue to follow the APD process when procuring subsequent EBT systems after the initial system contract comes to an end. Although one commenter expressed concern that this was not necessary, we believe that the APD process ensures that State agencies have appropriately planned and budgeted for a new system contract. We are also eliminating the requirement that State agencies provide written approval to FNS of the Planning and Implementation APDs from other participating Federal agencies or indicate that approval is being sought simultaneously from participating Federal agencies.

The Department is revising 7 CFR 274.12(c)(1) to reduce the amount of State EBT planning documentation that must be submitted for EBT systems approval. There is no longer a need for FNS to receive the current level of detail on planning activities to provide sufficient agency oversight. We have modified the regulations to make Planning Advanced Planning Documents (PAPD) less burdensome and less prescriptive in terms of the information required, by eliminating the specifications for pilot project site and expanded site descriptions and description of major contacts; and indicating that only minimal information be contained in the PAPD, including a brief letter of intent, planning budget, cost allocation plan, and schedule of activities and deliverables.

We received one comment that opposed not requiring evidence in the PAPD of State agency contact with organizations. USDA continues to encourage open discussions between State agencies and all EBT stakeholders when EBT is coming up for the first time or coming up for re-bid procurement. However, at this stage of EBT implementation nationwide, we do not see the necessity to document these contacts for our purposes.

To further decrease the burden on State agencies to document all aspects of the EBT planning process, we revised the regulations so that functional demonstration test plans and reports are no longer required. Although we no longer require the test documentation, it is in the State agencies' best interest to require that their vendors perform a functional demonstration test. This is especially important if the State Agency is new to EBT or if the functions of the system are new for that vendor. Without such a test, avoidable functional problems could arise later in the acceptance test and result in the project's delay.

In general, the regulations require that extensive acceptance testing be successfully completed prior to system operation. Since experience has shown that EBT systems are often modified over the life of a State agency's contract with a particular vendor, it may be necessary to repeat any or all of these tests if significant changes are made to the system after the system is operational. Therefore, the Department is clarifying this provision by indicating that FNS reserves the right to require re-testing, if warranted.

The Department is also revising the provision that requires the State agency to provide an acceptance test report. Under most circumstances, FNS will no longer require this report. However, a report will be necessary if FNS is not present at the acceptance testing or serious problems are uncovered during the test.

Regarding testing, we received one comment encouraging us to further streamline the system testing process. The commenter expressed concern that it was too costly to continue testing systems that have already been accepted by FNS. We will continue to appraise our testing needs, but at this time our experience is that problems continue to be revealed during acceptance testing. This indicates a need to continue the practice, regardless of whether the EBT contractor has already been through the acceptance test process with another State.

The Department is revising the regulations at 7 CFR 274.12(c)(4) by replacing the specifics on pilot reporting with less rigid requirements. This will provide State agencies the latitude to discern which details are relevant for their particular pilot. Reporting will not be required on a quarterly basis; rather, it will occur as issues or problems arise. Furthermore, we have deleted the requirements for State agencies to provide an EBT pilot project cost analysis because of the cumbersome nature of the data collection process and the limited value that the information provides to FNS.

One commenter expressed concern about doing away with pilot reporting, while another felt that we should do away with all pilot definition requirements unless they are describing a new system. We want to clarify that in most cases, pilots will only occur with a new system. Now that most States have statewide EBT systems, these provisions regarding pilots will affect few State agencies. However, in some cases, State agencies may want to convert a new system in a pilot area only, because the system is introducing new features that were not tested in the previous implementation. For these reasons, some pilot reporting requirements remain in the regulations for instances where they are warranted, but they are substantially reduced.

We are also revising regulations at 7 CFR 274.12(d) to relax the requirement for a minimum full three months of pilot project operation prior to obtaining approval for expansion. This will decrease unnecessary delays in project expansion and reduce additional costs that may ensue while State agencies wait for completion of pilot analyses and FNS approval. We received one comment that opposed authorization for State agencies to begin statewide rollout before the end of the pilot period. The commenter was concerned that by expediting the process, it will be difficult to discover and prevent certain problems before rollout, especially in the re-bid environment where we are seeing new contracting relationships, e.g. multi-vendor contracts.

While we appreciate this concern, FNS has for some time now, allowed State agencies to expand beyond the pilot area prior to the end of the three-month period without significant consequences. As long as the State agency has defined a pilot area with FNS, which can be a base for any analysis and reporting that may be necessary during the first three months, they will not need to delay system expansion. In all cases, FNS reserves the right to halt rollout activities if problems arise during pilot or project expansion.

We are extending the time required for State agencies to ensure that retailer equipment is replaced or repaired from 24 hours to within 48 hours. We received two comments stating that extending the timeframe for retailer equipment replacement or repair to 48 hours will promote efficient administration of the program. One commenter felt that 48 hours may still not be long enough in certain areas and recommended we offer options of either extending to 72 hours, giving States the latitude to price contract options with various replacement timeframes, or eliminating next-day requirements for retailers with more than one terminal. Conversely, one commenter expressed concern that extending the timeframe would have an adverse impact on retailers.

With regard to the concern expressed about the impact on retailers, experience supports the fact that in many cases 24 hours is not enough time for contractors to fix or replace problem terminals. Alternatively, allowing for longer than 48 hours would likely create a hardship for many retailers. Therefore, the final regulations at 7 CFR 274.12(f)(4)(v) allow for up to 48 hours to fix or replace store terminals in order to best meet the needs of all parties.

We are revising the regulations at 7 CFR 274.12(f)(4)(vi) to require that State agencies continue to ensure that training is offered to all retailers, but allow retailers to opt out of the training if they desire. For tracking purposes, State agencies shall direct retailers to confirm in writing that they are waiving their training option. We received two comments that having retailers opt out of training in writing is unnecessary and that it makes more sense to require retailers to put it in writing if they do want training. Another comment was that USDA should update the retailer application and training process to include an EBT training option. Also, they felt it would be important to clarify what action could be taken against retailers that do not respond to requests to put in writing the option not to receive training. One commenter wrote in that allowing retailers to opt out of training in writing is a good idea.

FNS does incorporate general information about EBT into the training associated with the food stamp authorization process. However, the State agency and its contractor are best suited to provide retailer training since it will vary somewhat from State to State. Due to the current processing environment, many retailers today will not see a need to be trained in using point of sale (POS) equipment and will wish to decline training. However, it is important that retailers continue to receive the benefit of training when needed to be sure that they can properly serve food stamp households. Asking the retailers to decline training in writing will help insure that those retailers that want and need the training are getting it without making assumptions as to why they did not respond in writing.

Regulations require FNS compliance investigators be provided access to State EBT systems in order to conduct investigations of program abuse and alleged violations. We are revising the provision to specify the need for on-line access and to extend the access to other FNS staff involved in compliance activity, including FNS regional and field offices, as well as staff from the Department's Office of Inspector General. Also, the rule makes clear the requirement that FNS compliance investigators and investigators from the Department's Office of Inspector General must be given EBT cards with benefits that can be used for food stamp investigations.

In response to several comments, we are correcting language that was published in the proposed rule, which required the deployment of administrative terminals to FNS and other federal agencies with investigative responsibilities. Investigative agencies have been able to use existing terminals as long as they have the necessary software and telecommunications to ensure access to the system. State agencies must ensure that the investigative offices have these items in place in order to have access to the system. Also, in response to comments, we are clarifying that this will be read-only access to the States' systems. Two comments expressed the view that FNS should cover the cost for this access. FNS will continue to share in these costs on a 50-50-match basis in accordance with 7 CFR 277.18.

We are revising regulations at 7 CFR 274.12(g)(3) with an additional requirement that a truncated primary account number (PAN) or a coded transaction number be included on the receipt. This policy has been adopted in every operational project to date, and we want to be sure it remains this way. Truncation of the PAN is a well recognized security feature, and we did not receive any comments to this provision.

The Department is revising regulations at 7 CFR 274.12(g)(5)(i) to allow for Personal Identification Number (PIN) assignment in accordance with commercial industry standards, as long as clients have the ability to later select their PIN if they choose and are informed of the selection option. We only received one comment on this provision, which opposed authorization to use PIN pre-assignment even with the option to change the PIN later.

FNS shared the concern that some households may have difficulty remembering PINs that are assigned. The Department commissioned a study through the Economic Research Service to examine the effects of various EBT customer service waivers, including PIN assignment. The study, Effects of EBT Customer Service Waivers on Food Stamp Recipients, by Abt Associates, was released in April 2002. Results indicate that clients are most likely to forget an assigned PIN shortly after a state converts to EBT or after new food stamp recipients receive their EBT card. However, these effects diminish dramatically after a recipient uses an assigned PIN repeatedly or has the PIN changed. The requirement to provide all clients the option to change an assigned PIN protects the clients. In many States this can be done very conveniently over the phone.

We are revising regulations at 7 CFR 274.12(g)(5)(ii) to allow a State agency to replace lost or stolen EBT cards within up to five calendar days if the State agency is using centralized issuance. At the same time, we are clarifying that the intent of “card replacement” requirements is to ensure that clients are given access to their benefits within the specified time frame. This means that regardless of what timeframe the State agency has indicated for card replacement (e.g., 2 days, 5 days) the client must have an active card and PIN in hand and benefits available on the card within the time frame specified by the State agency.

We received several comments to this provision. Three commenters felt we should expand the ability to replace cards within 5 days to State agencies that do some local office card mail-out or rural areas where 2-day replacements are difficult. Two commenters expressed that contractors have no control over the mail system, and therefore, they cannot guarantee that benefits will be in the clients' hands within the allotted timeframe. Another comment was that we should make it 5 business days, not calendar days since some commercial delivery services are cutting back or eliminating Saturday deliveries. Finally, one comment opposed extension to 5 calendar days for receipt of replacement cards from a centralized location.

We appreciate that these concerns exist, however, we are not willing to go any further to allow for more time or fewer restrictions. We want to ensure that households can receive their replacement cards as expeditiously as possible without creating a logistic hardship on the State agencies that need the extra time. Many State agencies have waivers to operate this way currently and we have not seen that it creates an undue burden on the households.

Provisions at 7 CFR 274.12(g)(10) are revised by removing the requirement for a “hands-on” approach to household training. This provides State agencies the flexibility to determine the best training approach for their client population in their particular environment. However, hands-on training must be available as a back-up for those clients who request it, for special needs populations such as the elderly, or for those individuals identified as having problems with the EBT system.

We received three comments on this provision. One was in complete agreement with the regulation change. Another commented that the requirement to provide hands-on training when necessary is not stipulated in the proposed regulation language. The final comment opposes elimination of the requirement for hands-on training.

FNS is very sensitive to the concern that by not providing hands-on training, new clients may not get the most thorough exposure to EBT. The Department commissioned a study through the Economic Research Service to examine the effects of various EBT customer service waivers, including training. The results, which were released in April 2002, indicate that eliminating the requirement for hands-on training reduces the amount of time and possibly out-of-pocket costs most recipients spend on EBT training. Also, we have added regulatory language requiring hands-on training for vulnerable client populations and in those cases where the clients request it. This will protect those clients that need hands-on training without burdening those that are comfortable learning through some other approach such as mail training, videos, or training kiosks.

FNS Authorization: We have deleted from the regulations at 7 CFR 274.12(h)(1)(ii), language that inappropriately placed procedural directions for FNS field offices regarding authorizations of Food Stamp retailers. This does not change current FNS policy. No comments were received on this proposal.

Fees: Section 7(g)(2) of the FSA (7 U.S.C. 2016(g)(2)) and regulations at 7 CFR 274.12(h)(2) state that authorized retailers shall not be required to pay costs essential to EBT system operations that are utilized solely for the Food Stamp Program. The Department wishes to reiterate that retailers cannot be required to pay for costs related to EBT for Food Stamps, which includes any fees for food stamp transactions on government-provided terminals. Retailers may, however, make the business decision to pay commercial third party processors a fee to process food stamp transactions along with credit and debit transactions processed for the store. These fees would not be reimbursable by the State agency unless mandated by State law.

We have revised regulations at 7 CFR 274.12(h)(2) to allow State agencies to charge retailers reasonable fees to cover the costs resulting from result from abuses, breach of contract or negligence on the part of the retailer.

POS Deployment: Regulations at 7 CFR 274.12(h)(4)(ii)(D) are revised to clarify that State agencies may place additional POS terminals in stores above the minimum number of terminals required at no cost to retailers. One comment disagreed with this approach, stating that it may drive up costs. Another comment was that any POS deployment above the formula in the regulation is at a cost to the retailers. This revision to the regulation does not change current policy. If State agencies are in a position to offer extra terminals to retailers at no cost, that is acceptable, but it is at their discretion.

In the proposed regulation we proposed removing the requirement at 7 CFR 274.12(i)(6)(i)(B) that FNS' statement of nondiscrimination be printed on the card or card jacket since the State agencies are already expected to provide this nondiscrimination statement to system users on application forms, handbooks, manuals and other distributed materials. The Agency has reconsidered this proposal due to concerns about our responsibility to protect food stamp households against discrimination. We have decided that some form of the nondiscrimination statement must appear on the card or card sleeve, as it does on food stamp coupon books.

Therefore, we are revising the final regulation to require an abbreviated version of the nondiscrimination statement, which is much shorter than the full version printed on other materials. Also, the abbreviated version does not include an address so it should not confuse households about who to contact for general problems with EBT accounts or transactions. The abbreviated non-discrimination statement reads, “The USDA is an equal opportunity provider and employer.” This statement must be printed on the EBT card or card sleeve. Consequently, household training requirements will not change with regard to the non-discrimination statement so language at 7 CFR 274.12(g)(10) is not revised as proposed.

We have revised regulations at 7 CFR 274.12(j)(1)(iii) to describe the current reimbursement procedures for crediting retailers through the Automated Standard Application for Payment (ASAP) system developed for the U.S. Treasury Department by the Federal Reserve Bank of Richmond. State agencies will need to accommodate the communication linkages and data flow requirements as prescribed by FNS.

In conjunction with the ASAP system, FNS has entered into a partnership with the Federal Reserve Bank of Richmond to develop the Account Management Agent (AMA) system. The AMA system supports the Department's efforts to improve accountability, oversight and management of State EBT systems. State agencies must provide data to the AMA system in the format established by FNS. This requirement is specified in section 274.12(k)(2)(iii).

We have replaced requirements for EBT exception reports with the Anti-fraud Locator for EBT Redemption Transaction (ALERT) system in 7 CFR 274.12(k)(2)(ii). The ALERT system is used to collect and examine EBT transaction data for the purpose of detecting and investigating retailer fraud and abuse. The standardized format for the ALERT system was developed in consultation with EBT processors and is in use today for all EBT projects. This provision brings our regulations up to date by codifying the required use of the ALERT system. In response to a comment on this provision, we want to clarify that these rules do not change the current ALERT system specifications.

We have removed language regarding enhanced funding for development of EBT systems that are fully integrated components of the State's complete automated data processing (ADP) system, because such funding has not been available since the April 1, 1994 enactment of Public Law 103-66 amending the FSA.

In the proposed rule we presented an electronic store-and-forward transaction option to State agencies as an alternative to manual transactions. The rule proposed that State agencies could permit retailers with commercial EBT equipment to use store-and-forward transactions at the retailer's option when the EBT system is inaccessible and the retailer is willing to assume liability for the transaction. It was proposed that retailers would have 24 hours from the time the transaction occurred to forward it to the host. If the system were inoperable for more than a 24-hour period, the retailer would have 24 hours from the point when the system resumes operation to forward the transaction.

The proposed rule further stated that in an instance where the store-and-forward transaction is denied due to insufficient benefits, the retailer could resubmit the transaction for the balance in the account. The outstanding balance of the resubmitted transaction could not be re-presented in future months. FNS had previously approved two operational EBT States to incorporate this model into their systems.

This was the most commented-on provision in the proposed rule. Because the comments received raised significant concerns about security, data validity, and fraud, the Department solicited additional input from the EBT stakeholder community on this provision. In response to some of these comments, we have changed the proposed rule significantly. Therefore, the Department is issuing this provision as an interim rule, and is soliciting additional comments.

Nine commenters supported store-and-forward transactions in general. Three of these commenters expressed strong support for allowing retailers an opportunity to resubmit the transaction for the balance in the account in the case of insufficient benefits.

Three comments did not support the requirement that retailers must submit their transactions within 24 hours of the purchase or of restored EBT services, indicating that this was too short a timeframe. The 24-hour period in the proposed rule refers to the time limit for original submission of the store-and-forward transaction. The Department clearly expects that resubmission would be almost immediate and would be an automated function built into the retailer's system. Most retailers will want to submit store-and-forward transactions as soon as they possibly can access the EBT system to minimize the risk of insufficient funds in the account. One retailer that is operating a store and forward pilot and was present at the NACHA session confirmed that this automated functionality is built into his system. However, since there may be some systems designed to forward transactions in a batch process mode, the Department is allowing a 24-hour submission period to accommodate this system design. To reduce confusion, the Department has revised the description of the 24-hour period to have a single starting point, that is, when the system again becomes available.

Three additional comments expressed the concern that setting up a 24-hour limited period for submission of transactions provided a potential for fraud because processors do not have the ability to monitor the timing of the transactions, leaving the monitoring up to the retailers. During the NACHA and EFTA sessions, EBT processors clarified their concern to be that the 24-hour period is not auditable in the EBT system since the system does not have information on the availability of the retailer system. The Department did not intend to imply that EBT processors must track this time limit or take any unusual action if the transaction date is older than 24 hours. Timely submission will be the retailer's responsibility. However, if a delay of greater than 24 hours on the part of the retailer or its third party processor results in a client inquiry or complaint that a transaction was processed more than 24 hours after system functionality returned and a future month's benefits were deducted, the client is entitled to an adjustment at the retailer's liability.

Four comments argued that the rule should allow access to the household's subsequent month's benefits to cover a circumstance where there are insufficient benefits available in the current period. Under current rules, there are already manual transaction procedures in place for retailers to obtain approval for Food Stamp transactions when EBT systems are unavailable, procedures that remove any risk for the retailer. Since these manual transaction procedures take longer than an electronic transaction, some retailers prefer to operate in store and forward mode, thus assuming liability for these transactions. These new store-and-forward provisions provide retailers relief from a significant portion of the risk involved with store-and-forward transactions, and relief from more time-consuming procedures associated with manual transactions. At the same time, the provisions allow for better customer service to Food Stamp recipients. The 24-hour timeframe is in place to protect recipients from problems associated with untimely submissions while providing retailers with a reasonable period within which to submit stored transactions. Because the use of credit is prohibited under the Food Stamp Act, the Department is upholding the 24-hour timeframe requirement between renewed EBT system access and submission of the store-and-forward transactions. Should the 24-hour window cross into the beginning of a new benefit issuance period, retailers may nevertheless draw against all available benefits in the account. If it is determined through repeated client complaints or agency oversight that retailers are abusing this process, the retailer may be required to discontinue use of store-and-forward functionality.

Two other commenters were concerned that the rule as written raised issues of data integrity, audit trails and security and could have unintended impacts on other policies, e.g., adjustments and claims. Store-and-forward transactions are subject to the same level of data and security standards, edit checks, and PIN encryption requirements as any other EBT transaction. Therefore, the Department does not agree that these transactions pose an added data or security risk. In fact, several commenters at the NACHA and EFTA sessions stated that the store-and-forward function was a secure transaction and a significant improvement to manual voucher procedures, which can be misused by retailers and are less secure transactions. Store-and-forward transactions would be subject to the same adjustment and claim procedures as any other EBT transactions; however, there could be a need for additional training to recipients because the date of the store-and-forward transaction would not necessarily coincide with their shopping date.

Since publication of the proposed rule, there has been much discussion within the EBT community about store-and-forward transactions. Most of the debate and resulting concern surround the concept of changing the purchase amount when resubmitting a transaction for payment after it has been denied for insufficient benefits. In this two-step model, if the retailer receives a denial message [which includes the remaining balance in the account] for a store-and-forward transaction, the retailer sends a second message to the processor requesting the remaining balance. These transactions are not specifically identified to EBT system processors. Commenters believed that this could open the door for additional data manipulation, resulting in increased error and potential fraud. At the NACHA and EFTA sessions, several commenters provided positive comments on this model based on operational experience. There have been no documented complaints from recipients in the New Jersey, New York and Pennsylvania pilots, while at the same time there has proven to be a significant benefit to retailers and their customers. There was also a great deal of support for this method due to the ease of implementation. However, the Department recognizes that from an oversight perspective, it is preferable to have an audit trail, which identifies store-and-forward transactions in order to monitor fraudulent activity through the Agency's retailer oversight system. Currently, in the store-and-forward pilots, these transactions are not specifically identified as “store-and-forward,” so EBT processors and the Department [through the agency's ALERT system] have no way of knowing that these transactions are taking place. This raises significant concerns for the Department.

A second alternative solution involving a single transaction has now emerged. In this alternative approach, if there were no remaining benefits at all when the stored transaction is submitted, the transaction would be denied. However, if there were benefits, but not enough to cover the full purchase amount, the system would return a partial approval, immediately crediting the retailer for the balance remaining in the account and debiting the client balance to zero. The retailer would retain liability for the difference, and would not be allowed to resubmit any denied or partially approved store-and-forward transaction. Partial approvals would only be granted for store-and-forward transactions, identified as such within the body of the transaction message. By using the single-transaction approach, there is no need to track the timing of the second submission or its relationship to the initial transaction, which were concerns raised in comments to the proposed rule. It also eliminates any need for the retailer to alter transaction data and minimizes fraud concerns.

The Department has considered the benefits and disadvantages related to both alternatives. The two-step method described in the proposed rule has been tested, found to be viable, and worked well in the demonstration environment. At the same time, the Department finds the concerns raised by commenters to be valid. The one-step method discussed above is a cleaner solution and supported by industry transaction message standards; however, no retailer or EBT processor has yet attempted this process. Nevertheless, the Department is confident that the one-step method is achievable, and in fact preferable, given the inadequacies of the two-step method cited above.

Consequently, under the interim regulations, State agencies, at their option, may allow retailers to implement the one-step store-and-forward methodology herein described. The retailer that has been operating a two-step store-and-forward pilot as a demonstration waiver may continue to do so for up to three years from this rule's effective date in order to facilitate the transition from a two-step to one-step process.

Three commenters relayed concerns that implementing store-and-forward as proposed would require processors to change their systems, consequently increasing cost. Further information on the costs associated with Store and Forward was obtained at the NACHA and EFTA sessions. Although stakeholders did not provide specific cost information, several participants at these sessions indicated that there are no costs to EBT processors or the government in the two step process; any system changes in this model are born by the retailers. However, in the one-step process, EBT system changes would be necessary to accommodate this option as well as one-time costs associated with testing the interface between the EBT system and the retailer or the retailer's third party processor. The Department expects that the total cost to implement the one-step process would be between 3-8 million dollars, and that the majority of the cost burden (between 2-7 million dollars) falls on retailers making changes to their store systems. Since these costs would be spread out over thousands of retailers, there would not be a significant burden on any one party. The remaining one million dollars in costs would be shared equally by State agencies and the Federal government through the 50/50 reimbursement procedure. Cost estimates for the implementation of the one-step are based on 150 development and testing hours for States and processors, plus 10 additional hours for each third party processor that must be certified to a State EBT system. Estimates also assume that once a processor develops this core functionality for one State, it can be implemented in another State with a minimal number of development and implementation hours. It is the Department's assessment that the benefits to system integrity over the long run outweigh the costs involved in implementing this system option.

While developing the interim language, the Department concluded that store-and-forward requirements should stand on their own, and not be addressed as a subpart of re-presentation. Therefore, the proposed changes to 7 CFR 274.12(m) have been removed from the interim rule, and paragraph (m) will continue to deal solely with manual voucher procedures. Instead, 7 CFR 274.12 (n) has been redesignated as 7 CFR 274.12(o) and a new paragraph (n) addresses store-and-forward.

The interim and final provisions of this rule are effective May 11, 2005. State agencies may implement the required provisions anytime after May 11, 2005, but no later than October 11, 2005. The Department will review and approve a State Agency's implementation plan for Store and Forward, which preferably will include a phase-in schedule or shake-down period prior to statewide rollout. Based on review and analysis of comments received, as well as experience gained through implementing the one-step method, FNS plans to publish a store-and-forward final rule.

The FAA has determined that notice and opportunity for prior public comment is impracticable because these special conditions have been subject to the public comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance; however, we invite interested persons to participate in this rulemaking by submitting written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.

We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning these special conditions. The docket is available for public inspection before and after the comment closing date. If you wish to review the docket in person, go to the address in the ADDRESSES section of this preamble between 7:30 a.m. and 4 p.m. Monday through Friday, except Federal holidays.

We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions in light of the comments received.

If you want the FAA to acknowledge receipt of your comments on these special conditions, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.

On February 12, 2003, AMSAFE Inc., P.O. Box 1570, Higley, Arizona 85236, applied for a supplemental type certificate for the modification of Airbus Model A320 airplanes. The modification includes a child restraint system (identified by AMSAFE as a child safety system (CSS)) that wraps horizontally around the seat back and attaches to the existing passenger lap belt. It can be installed on certain seats of Airbus Model A320 airplanes in order to reduce potential for injury in the event of an accident. The Model A320 is a swept-wing, conventional tail, twin-engine, turbofan-powered transport airplane.

Because the existing airworthiness standards of 14 CFR part 25 do not address CSS, the FAA developed special conditions to address this design feature. Special Conditions No. 25-255-SC were issued to AMSAFE Inc. on December 8, 2003, and published in the Federal Register on December 17, 2003 (66 FR 70133).

Under the provisions of § 21.101, AMSAFE Inc. must show that the Airbus Model A320 airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A28NM, or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in Type Certificate No. A28NM are as follows: 14 CFR part 25, effective February 1, 1965, including Amendments 25-1 through 25-56; SFAR 27, effective February 1, 1974, including Amendments 27-1 through 27-5; and 14 CFR part 36 effective December 1, 1969, including Amendments 36-1 through 36-12. In addition, the certification basis includes other regulations and special conditions that are not pertinent to these special conditions.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Airbus Model A320 airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the Airbus Model A320 airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.

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

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

The AMSAFE Inc., Child Safety System (CSS) is an improved harness type child restraint system (CRS) that utilizes the seat back and the lap belt on passenger seats to provide upper torso restraint and to improve the restraint of small children. The physical characteristics of small children will govern the use of the CSS and must be defined according to accepted classification standards. The device is intended for children in the 1- to 4-year age group who are prohibited from being held in their parents' arms during taxi, take-off, and landing and must occupy their own passenger seat, typically with no supplemental restraint. The CSS is made with webbing and fastening hardware and consists of an adjustable strap that wraps horizontally around the seat back to secure the device to the passenger seat, and a double shoulder harness that is fastened around the child's upper torso. The ends of the device's shoulder harness are held in place using the existing passenger lap belt that is passed through two open loops on the lower ends of the device's shoulder straps. The current part 25 airworthiness regulations are not adequate to define the necessary certification criteria.

The CSS is a non-conforming CRS that is not approved for use on aircraft per Federal Motor Vehicle Safety Standard (FMVSS) 213 and as such the design requirements are established in these special conditions. It is a safety restraint device specifically designed for use by small children on aircraft.

The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this particular design feature. Additional safety standards are therefore necessary to establish a level of safety equivalent to that established in the regulations.

As discussed earlier, the applicable airworthiness standards for the Airbus Model A-320 are part 25, Amendments 25-1 through 25-56. The requirement for dynamic seat testing (§ 25.562) was adopted in Amendment 25-64 and is not included in the certification basis for this airplane. Nevertheless, at the applicant's request, dynamic testing requirements were included in the original special conditions. However, the seats on which the CSS are to be installed are not currently required to be dynamically tested and in most cases would not pass this test. Since the CSS would not improve the performance of the seats themselves, requiring this test for the CSS would serve no useful purpose. Therefore, we are revising Special Condition No. 1 to remove the requirement for dynamic testing.

Original Special Condition No. 9 contained a related requirement to show that the CSS would not cause the occupant's passenger seat back to fold over during a crash situation. But the seat itself is not required to meet this condition, even without the CSS installed. Therefore, this requirement is also inappropriate, and we are rescinding original Special Condition No. 9.

Additionally, the operating regulations, 14 CFR 91.107 and 121.311, prohibit the use of any “vest-type child restraints, and harness-type child restraints” for commercial and private use operations. In order for the CSS, which is a harness-type child restraint, to be useable in the U.S., AMSAFE Inc., or their agent, must petition the FAA for an exemption from the operating regulations. The petition must be granted in order to allow use of the CSS.

The following special conditions can be characterized as addressing the safety performance of the system and the capability of the system to be installed and utilized without creating additional safety concerns. Because of the nature of the system and the direct interface with the crew and passengers, as well as the intended occupants, these special conditions are more rigorous from a design standpoint than the standard lapbelt installation.

As discussed above, these special conditions are applicable to the Airbus Model A320 airplanes modified by AMSAFE Inc. Should AMSAFE Inc. apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. A28NM to incorporate the same or similar novel or unusual design feature, these special conditions would apply to that model as well under the provisions of § 21.101.

The substance of these special conditions, in similar form, has been previously subjected to public comment and all of the four comments from the single commenter have been fully considered and addressed. It is unlikely that prior public comment would result in a significant change from the substance contained herein. For this reason, the FAA finds that good cause exists for making these special conditions effective upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

This action affects only certain novel or unusual design features on Airbus Model A320 airplanes. It is not a rule of general applicability, and it affects only the applicant who applied to the FAA for approval of these features on the airplane.

The FAA proposed to amend 14 CFR Part 39 with a proposed AD. The proposed AD applies to Aviointeriors S.p.A. (formerly ALVEN), series 312 seats. We published the proposed AD in the Federal Register on May 20, 2004 (69 FR 29109). That action proposed to require initial and repetitive inspections of seat central and aisle side crossmembers for cracks, and if necessary, replacing the crossmember with a new crossmember. That action also proposed to introduce replacing the original design crossmember with a reinforced crossmember as an optional terminating action to the repetitive inspections.

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

We provided the public the opportunity to participate in the development of this AD. We received no comments on the proposal or on the determination of the cost to the public.

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

There are about 1,020 Aviointeriors S.p.A. (formerly ALVEN) series 312 seats installed on airplanes of U.S. registry that would be affected by this AD. We estimate that it would take about 0.5 work hours per seat to perform the inspections, and about one work hour per seat to perform the replacement of a crossmember. The average labor rate is $65 per work hour. Required parts will cost about $650.50 per seat. Based on these figures, we estimate the total cost of one inspection and total parts replacement to U.S. operators to be $729,810.

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

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

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

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

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

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

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

We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES. Include “AD Docket No. 2000-NE-09-AD” in your request.

The FAA proposed to amend 14 CFR part 39 with an AD for certain Saab Model SAAB 2000 series airplanes. That action, published in the Federal Register on February 1, 2005 (70 FR 5064), proposed to require a one-time inspection to detect a broken terminal stud on a main relay of the electrical power generator, and corrective action if necessary.

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

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

This AD will affect about 3 airplanes of U.S. registry. The required actions will take about 5 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 $975, or $325 per airplane.

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

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

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

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

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

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

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 98-09-17, amendment 39-10498 (63 FR 20311, April 24, 1998); which is applicable to all Boeing Model 747-200F and -200C series airplanes; was published in the Federal Register on June 18, 2003 (68 FR 36510). The action proposed to continue to require repetitive detailed inspections or a one-time open-hole high frequency eddy current inspection to detect cracking of certain areas of the upper deck floor beams, and corrective actions if necessary. The action also proposed to require new one-time inspections for cracking of the web, upper chord, and strap of the upper deck floor beams. The action also proposed to require modification or repair of the upper deck floor beams, as applicable, which would eventually necessitate accomplishment of new repetitive inspections for cracking of the upper deck floor beams.

Interested persons have been afforded an opportunity to participate in the making of this amendment. The FAA has duly considered the comments received.

One commenter, the airplane manufacturer, requests that we revise paragraphs (g) and (h)(2) of the proposed AD to allow modification and permanent repairs to be accomplished in accordance with Boeing Alert Service Bulletin 747-53A2429, dated March 22, 2001. The same commenter also requests that Notes 4 and 5 be removed from the proposed AD. (Those notes state that the procedures for the modification and permanent repair specified in Boeing Alert Service Bulletin 747-53A2429 do not provide an adequate level of safety.) The commenter states that the procedures in the service bulletin for the modification and permanent repair are adequate. The commenter acknowledges, however, that analysis has shown that additional inspection locations should be added to the post-modification/repair program. The commenter notes that the service bulletin will be revised in the future to include additional inspection procedures.

We partially concur with the commenter's request. As we explain in the “Differences Between Proposed AD and Service Bulletins” section of the proposed AD, the procedures for the modification and permanent repair stated in the original issue of Boeing Alert Service Bulletin 747-53A2429 do not provide an adequate level of safety. This determination is based on reports that cracking has been found on airplanes that have a modification similar to that described in Boeing Alert Service Bulletin 747-53A2429. However, we do agree that the procedures for the modification and permanent repair specified in Boeing Alert Service Bulletin 747-53A2429 would be acceptable if additional post-modification/repair inspections are performed in accordance with a method that we approve. Accordingly, we have made the following changes to this final rule:

• We revised paragraphs (g) and (h) to allow two options for compliance.

• We revised paragraph (i) to specify that certain airplanes on which a repair in accordance with paragraph (c) of this AD was accomplished before the effective date of this AD are subject to additional inspection, modification, and/or repair requirements, as applicable. (Paragraph (i) of the proposed AD specified that airplanes on which the modification or permanent repair specified in Boeing Alert Service Bulletin 747-53A2429 was accomplished before the effective date of this AD would also be subject to these additional inspection, modification, and/or repair requirements. These airplanes are now subject to paragraph (k) of this AD instead.)

• We revised paragraph (j) to clarify that the post-modification/repair inspections in that paragraph apply to airplanes modified/repaired in accordance with a method approved or by an Authorized Representative for the Boeing DOA organization.

• We added paragraph (k) to require post-modification/repair inspections in accordance with a method that we approve for airplanes on which the modification or permanent repair is accomplished in accordance with the service bulletin.

• We removed Notes 4 and 5 of the proposed AD from this final rule.

We have coordinated this issue with Boeing and it concurs in this approach. We have further confirmed that Boeing intends to add acceptable instructions for the post-modification/repair inspections in a future revision of the service bulletin. Once Boeing has issued, and we have reviewed and approved, a revision to the service bulletin, we may consider approving that service bulletin as an alternative method of compliance (AMOC) with the corresponding requirements of this AD.

The same commenter requests that we revise paragraph (c) of the proposed AD to allow repairs of any cracking found during inspections in accordance with paragraph (a) or (b) of the proposed AD to be accomplished in accordance with paragraph (h) of the proposed AD. The commenter states that this should be acceptable because paragraph (h) of the proposed AD defines FAA-approved time-limited and permanent repairs.

We concur. Time-limited repairs in accordance with paragraph (h)(1) of this AD, or permanent repairs in accordance with paragraph (h)(2) or (h)(3) of this AD, are acceptable for repairing cracks found during the inspections required by paragraph (a) or (b) of this AD. We have revised paragraph (c) to refer to paragraph (h) of this AD. Also, we have revised paragraph (h) of this AD to state that accomplishment of paragraph (h)(1), (h)(2), or (h)(3) of this AD is acceptable for any crack found during any inspection required by paragraph (a), (b), or (e) of this AD.

The same commenter requests that we revise paragraph (i) of the proposed AD to state that certain airplanes that have been modified or repaired previously do not require action within 5,000 flight cycles after accomplishment of the modification or repair. The commenter states that some upper deck floor beam repairs designed by Boeing prior to the release of Boeing Service Bulletin 747-53A2429 were consistent with the specifications of the modification/permanent repair in that service bulletin. The commenter states that these repairs may not need action within 5,000 flight cycles except for post-modification/repair inspections. A second commenter similarly requests that we reconsider the requirement to inspect (and accomplish any necessary corrective action) within 5,000 flight cycles after accomplishment of the modification or permanent repair. The second commenter justifies its request by noting that the modification is intended to improve the fatigue resistance of the modified floor beam.

We partially concur with the commenters' request. As explained previously, we have revised paragraph (i) in this final rule to remove airplanes on which a modification/permanent repair in accordance with Boeing Service Bulletin 747-53A2429 was accomplished before the effective date of this AD. These airplanes are now subject to repetitive inspections in accordance with paragraph (k) of this AD. However, paragraph (i) of this AD still applies to airplanes repaired previously in accordance with paragraph (c), if that repair does not comply with paragraph (h) of this AD. The additional post-repair inspections in paragraph (i) are necessary to ensure that the repair provides an adequate level of safety. Operators may request approval of an AMOC or adjustment of the compliance times for this AD as specified in paragraph (m)(1) of this AD. Also, as explained previously, when the future revision to Boeing Alert Service Bulletin 747-53A2429 is available, and we have reviewed and approved it, we may consider requests for approval of the actions in that revision as an AMOC for this AD. We have made no further changes to the final rule in this regard.

A third commenter notes that it has accomplished certain repairs of cracking found during inspections in accordance with paragraphs (a) and (b) of AD 98-09-17, as restated in paragraphs (a) and (b) of the proposed AD. All of these repairs were approved by a Boeing Company DER and some included “terminating action” similar to that found in Boeing Alert Service Bulletin 747-53A2429. The commenter states that these repairs should be included under paragraph (i) of the proposed AD as repairs and modifications that allow inspections in accordance with paragraph (e) of the proposed AD to be deferred for 5,000 flight cycles after installation.

We agree that certain repairs and modifications accomplished previously may warrant a 5,000-flight-cycle compliance time before it is necessary to accomplish the new inspections. However, these repairs and modifications must have been approved under paragraph (c) of the existing AD to ensure that they are adequate to address the unsafe condition. If these repairs have been approved, then they are covered by the provision in paragraph (i) of this AD that provides for a 5,000-flight-cycle compliance time for airplanes on which a repair in accordance with paragraph (c) of this AD was previously accomplished. No change to the final rule is necessary in this regard.

One commenter notes that paragraph (i) of the proposed AD would require accomplishing inspections of airplanes modified or permanently repaired before the effective date of the AD, in accordance with paragraph (e) of the proposed AD. The commenter states that paragraph (e) does not specify an inspection procedure for floor beams that have been modified or permanently repaired.

We infer that the commenter is requesting that we revise paragraph (i) of this AD to specify a method for inspecting floor beams that have been previously modified or permanently repaired. We do not concur. The inspection methods specified in Figures 1 and 2 of the referenced service bulletin are still adequate for modified or repaired floor beams, provided that paragraph (g) or (h) of this AD, as applicable, is also accomplished, as required by paragraph (i) of this AD. No change to the final rule is necessary in this regard.

One commenter, the airplane manufacturer, requests that we revise paragraph (j) of the proposed AD to refer to post-modification/repair inspections in accordance with Boeing Alert Service Bulletin 747-53A2429, as supplemented by procedures in an attachment submitted by the commenter. The commenter states that this would eliminate the need for paragraphs (j)(1) and (j)(2) of the proposed AD. The commenter also requests that we revise paragraph (k) of the proposed AD to require repair of any cracking found during post-modification/repair inspections to be accomplished in accordance with the procedures specified in the attachment submitted by the commenter.

We partially agree. The original issue of Boeing Alert Service Bulletin 747-53A2429 does not provide detailed instructions for post-modification/repair inspections, nor does it provide acceptable procedures for repairing any cracking found during such inspections. We are reviewing, with the commenter, the supplemental procedures to which the commenter refers. We and the manufacturer agree that the details of its proposal are too complex to include in this AD and operators would be better served by issuing separate service information containing the proposed supplemental procedures. It is likely that the supplemental procedures may be included in a future revision of the service bulletin. Once a revision to this service bulletin has been issued by the manufacturer, and we have reviewed and approved it, we may consider approving the use of post-modification/repair inspections specified in that revision as an acceptable AMOC for paragraph (j) of this AD. No change to the final rule is necessary in this regard.

One commenter requests that we revise the applicability of the proposed AD to make the AD applicable only to airplanes with a nose cargo door. The commenter states that it converts Boeing Model 747-200 series airplanes to a Special Freighter configuration that has only a main deck side cargo door, in accordance with a supplemental type certificate. The commenter questions whether the proposed AD would apply to its converted airplanes.

We acknowledge the commenter's concern but find that no change to the proposed AD is necessary to meet the intent of the commenter's request. The applicability statement of this AD specifies only Model 747-200F and -200C series airplanes. This applicability does not include Boeing Model 747-200 series airplanes that were delivered as passenger airplanes and later converted to the Special Freighter configuration. Airplanes that are converted to a freighter configuration will still be listed as passenger airplanes on the original Type Certificate Data Sheet. Thus, these airplanes are not subject to this AD. No change to the final rule is necessary in this regard.

For clarification, we have revised paragraph (j)(1) of this final rule to add the words “for cracking.” We find that this change does not expand the scope of the proposed AD but makes the wording of paragraph (j)(1) consistent with that of paragraph (j)(2) of this final rule.

Since the issuance of the proposed AD, Boeing has received a DOA. We have revised this final rule to delegate the authority to approve an alternative method of compliance for any repair required by this AD to the Authorized Representative for the Boeing DOA Organization rather than the Designated Engineering Representative (DER).

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

On July 10, 2002, the FAA issued a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the FAA's airworthiness directives system. The regulation now includes material that relates to altered products, special flight permits, and AMOCs. Because we have now included this material in part 39, only the office authorized to approve AMOCs is identified in each individual AD. Therefore, Note 1 and paragraph (m) of the proposed AD are not included in this final rule (other paragraphs and notes have been re-identified accordingly), and paragraph (l) of the proposed AD has been revised (and re-identified as paragraph (m)) in this final rule.

We have reviewed the figures we have used over the past several years to calculate AD costs to operators. To account for various inflationary costs in the airline industry, we find it necessary to increase the labor rate used in these calculations from $60 per work hour to $65 per work hour. The cost impact information, below, has been revised to reflect this increase in the specified hourly labor rate.

There are approximately 81 airplanes of the affected design in the worldwide fleet. We estimate that 23 airplanes of U.S. registry will be affected by this AD.

For airplanes on which the repetitive detailed inspection that is currently required by AD 98-09-17 is accomplished, that inspection takes approximately 1 work hour per airplane, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of the currently required detailed inspection is estimated to be $65 per airplane, per inspection cycle.

The high frequency eddy current (HFEC) inspection that is currently required by AD 98-09-17 takes approximately 6 work hours per airplane to accomplish, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of this currently required inspection on U.S. operators is estimated to be $8,970, or $390 per airplane.

The new one-time detailed and HFEC inspections that are required by this AD will take approximately 7 work hours per airplane to accomplish, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of these new inspections on U.S. operators is estimated to be $10,465, or $455 per airplane.

For airplanes subject to the modification that is required by this AD, it will take approximately 172 work hours per airplane to accomplish, at an average labor rate of $65 per work hour. Required parts will cost approximately $4,959 per airplane. Based on these figures, the cost impact of this modification is estimated to be $16,139 per airplane.

For airplanes subject to the repair that is required by this AD, it will take approximately 172 work hours per airplane to accomplish, at an average labor rate of $65 per work hour. Required parts will cost approximately $21,646 to $21,857 per airplane. Based on these figures, the cost impact of this repair is estimated to be $32,826 to $33,037 per airplane.

The follow-on repetitive inspections that are required by this AD will take approximately 6 work hours per airplane to accomplish, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of these new inspections on U.S. operators is estimated to be $8,970, or $390 per airplane, per inspection cycle.

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.

The Direction Générale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, notified the FAA that an unsafe condition may exist on all Dassault Model Falcon 10 series airplanes. The DGAC advises that a flexible hose in the wing anti-icing system collapsed on a Dassault Model Falcon 10 series airplane. The flexible hoses supply hot air for anti-icing of the inboard and outboard slats of the wing. Investigation revealed that the hose collapsed due to delamination of the internal wall, which resulted in the obstruction of airflow through the hose. This condition, if not corrected, could result in insufficient anti-icing capability and, if icing is encountered in this situation, cold result in reduced controllability of the airplane.

Dassault has issued Alert Service Bulletin F10-A312, dated February 25, 2005. The alert service bulletin describes procedures for identifying the part number of the flexible hoses, inspecting the internal walls of the hoses for blistering (delamination), and performing corrective actions. The corrective actions include replacing any hose that doesn't have a certain part number with a hose having the part number specified in the service bulletin, and replacing any damaged hose with a new hose having the part number specified in the service bulletin. The DGAC mandated the alert service bulletin and issued French emergency airworthiness directive UF-2005-041, issued February 25, 2005, to ensure the continued airworthiness of these airplanes in France.

This airplane model is manufactured in France and is type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DGAC has kept the FAA informed of the situation described above. We have examined the DGAC's findings, evaluated all pertinent information, and determined that we need to issue an AD for products of this type design that are certificated for operation in the United States. Therefore, we are issuing this AD to prevent the collapse of flexible hoses in the wing anti-icing system, which could lead to insufficient anti-icing capability and, if icing is encountered in this situation, could result in reduced controllability of the airplane.

This AD requires revising the Limitations section of the airplane flight manual (AFM) to include a statement prohibiting flight into known or forecasted icing conditions, and installing a placard in the flight deck. In lieu of the AFM revision and placard installation, this AD allows identifying the part number of each flexible hose in the wing anti-icing system, performing repetitive detailed inspections of each hose for delamination, and performing corrective actions if necessary, by accomplishing the actions specified in the service information described previously. The AD also requires sending the inspection results to the airplane manufacturer. When the unsafe condition addressed by an AD is likely due to a manufacturer's quality control (QC) problem, a reporting requirement is instrumental in ensuring that as much information as possible can be gathered regarding the extent and nature of the QC problem or breakdown, especially in cases where the data may not be available through other established means. This information is necessary to ensure that proper corrective action will be taken.

If an operator chooses to do the AFM revision and placard installation instead of the repetitive inspection of the flexible hoses, the French emergency airworthiness directive mandates performing the AFM revision before the next flight of the airplane. This AD allows operators 14 days after the effective date of this AD to complete the AFM revision. In developing an appropriate compliance time for this AD, we considered the DGAC's recommendation, as well as the degree of urgency associated with the subject unsafe condition. In light of these factors, we find that a 14-day compliance time represents an appropriate interval of time for affected airplanes to continue to operate without compromising safety.

The DGAC is aware of this difference.

For the flexible hoses, the French emergency airworthiness directive references the existing life limit of 3,000 flight hours, which is in Chapter 5-40 of the Dassault Falcon 10 Airplane Maintenance Manual. The French emergency airworthiness directive requires a revision to Chapter 5-40 to include repetitive inspections of the hoses. This AD is not requiring a change to Chapter 5-40 since these inspections are required by this AD. For operators that choose to do the repetitive inspections, this AD requires repetitive inspections at intervals of 60 flight cycles or 3 months, whichever is first.

The “inspection” of the internal walls of the flexible hoses specified in the alert service bulletin is identified as a “detailed inspection” in this AD. We have included the definition for a detailed inspection in Note 1 of this AD.

This AD is considered to be interim action. The inspection reports that are required by this AD will enable the manufacturer to obtain better insight into the nature, cause, and extent of the delamination of the internal walls of a flexible hose, and eventually to develop final action to address the unsafe condition. Once final action has been identified, we may consider further rulemaking.

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

This AD is a final rule that involves requirements that affect flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to submit any relevant written data, views, or arguments regarding this AD. Send your comments to an address listed under ADDRESSES. Include “Docket No. FAA-2005-20884; Directorate Identifier 2005-NM-051-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the AD. We will consider all comments received by the closing date and may amend the AD in light of those comments.

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

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

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

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

For the reasons discussed above, I certify that the regulation:

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

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

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

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

We have received two reports indicating failure of the thrust reversers during takeoff on certain Boeing Model 777-200 and -300 series airplanes. Investigation of both incidents revealed that the composite inner wall of the thrust reverser collapsed as a result of the migration of hot engine core compartment air underneath the insulation blankets, which overheated the composite structure. In the second incident, the outer sleeve of the primary nozzle had detached from the airplane and impacted an automobile on the ground, causing significant damage. Investigation of the first incident revealed that debris from the right engine had departed the airplane and was left on the runway. The flightcrew was not aware of the failure until arrival at the destination airport. Extensive damage was found to the inner wall of the thrust reverser, with large sections of the composite structure missing. Both failures occurred on airplanes that had each accumulated more than 6,000 total flight cycles. Subsequent inspection of the thrust reversers on airplanes that had accumulated between 6,000 and 9,000 total flight cycles indicated areas of delamination and annealed compression pads of the inner wall. The cause of the delamination is exposure to hot engine core compartment air, which can also cause thermal damage to the compression and drag link fittings. These conditions, if not corrected, could result in a rejected takeoff (RTO) and cause asymmetric thrust and consequent loss of control of the airplane during reverse thrust operation. If an RTO does not occur, these separated components could cause structural damage to the airplane or damage to other airplanes and possible injury to people on the ground.

We have reviewed Boeing Alert Service Bulletin 777-78A0059, dated February 24, 2005. The service bulletin describes procedures for one-time detailed and special detailed inspections of the thrust reversers, as applicable, for damage of the insulation blankets, inner wall, and compression and drag link fittings; and repair if necessary. The compliance times for the inspections range from 3 months to 24 months, depending on the number of total flight cycles on the airplane. The damage includes over-temperature conditions such as brown to blackened scorching and disbonding. The repair includes repair or replacement of any damaged insulation blankets with new blankets, and replacement of any damaged fittings with new fittings. The service bulletin recommends reporting the inspection schedule and results to Boeing.

The service bulletin also recommends prior or concurrent accomplishment of Boeing Special Attention Service Bulletin 777-78-0060, dated February 24, 2005. That service bulletin describes procedures for applying sealant to the seams of the thrust reverser insulation blankets and around the HP3 ducts, and insulating and sealing the compression pad fittings.

Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition.

The unsafe condition described previously is likely to exist or develop on other airplanes of the same type design. Therefore, we are issuing this AD to prevent failure of a thrust reverser and adjacent components and their consequent separation from the airplane, which could result in a rejected takeoff (RTO) and cause asymmetric thrust and consequent loss of control of the airplane during reverse thrust operation. If an RTO does not occur, these separated components could cause structural damage to the airplane or damage to other airplanes and possible injury to people on the ground. This AD requires accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between the AD and the Service Information.”

You should note that, although Boeing Alert Service Bulletin 777-78A0059 describes procedures for reporting information to the manufacturer, this AD will not require those actions. We do not need this information.

Boeing Alert Service Bulletin 777-78A0059 recommends prior or concurrent accomplishment of Boeing Special Attention Service Bulletin 777-78-0060; however, this AD requires accomplishment of that service bulletin immediately after each inspection to prevent further damage.

The service bulletins specify that you may contact the manufacturer for repair or replacement instructions, but this AD requires you to repair or replace in one of the following ways:

• Using a method that we approve; or

• Using data that meet the certification basis of the airplane that have been approved by an Authorized Representative for the Boeing Delegation Option Authorization Organization who has been authorized by the FAA to make those findings.

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

This AD is a final rule that involves requirements that affect flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to submit any relevant written data, views, or arguments regarding this AD. Send your comments to an address listed under ADDRESSES. Include “Docket No. FAA-2005-20885; Directorate Identifier 2005-NM-050-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the AD. We will consider all comments received by the closing date and may amend the AD in light of those comments.

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

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

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

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

For the reasons discussed above, I certify that the regulation:

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

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

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

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

The FAA proposed to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) with an AD to supersede AD 2000-18-07, amendment 39-11892 (65 FR 54407, September 8, 2000). The existing AD applies to certain Airbus Model A300, A300-600, and A310 series airplanes. The proposed AD was published in the Federal Register on October 4, 2004 (69 FR 59153), to require replacement of the transformer rectifier units (TRUs) installed according to the existing AD with different TRUs that are improved.

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

The commenter notes a typographical error in the citations for one of the service bulletins referenced in the proposed AD. While the preamble of the proposed AD correctly refers to Airbus Service Bulletin A300-24-0099, Revision 01, dated December 18, 2003, the body of the proposed AD incorrectly refers to Airbus Service Bulletin A300-27-0099, Revision 01, dated December 18, 2003. We have revised paragraphs (f) and (g) and Note 1 of this final rule to correct the typographical errors.

The commenter requests that we revise the applicability statement in paragraph (c) of the proposed AD to refer to the service bulletins that correspond to Airbus Modification 12540—Airbus Service Bulletins A300-24-0099 (for Model A300 B2 and B4 series airplanes), A300-24-6082 (for Model A300-600 series airplanes), and A310-24-2088 (for Model A310 series airplanes); all Revision 01; all dated December 18, 2003. The commenter notes that the applicability of French airworthiness directive 2003-082R1 excludes airplanes on which the relevant service bulletin has been done, but the applicability of the proposed AD does not exclude those airplanes. The commenter states that the exclusion in the French airworthiness directive is intended to minimize the burden on operators that have previously accomplished the relevant service bulletin. The commenter states that it does not understand the explanation of the applicability of the proposed AD that is contained in the paragraph “Difference Between the French Airworthiness Directive and This Proposed AD.” The commenter questions the FAA's concern and wonders whether the stated difference will become a general FAA policy.

Our concern about referring in the applicability statement to the service bulletins corresponding to a production modification is the possibility that an airplane modified in service to be equipped with TRUs having part number (P/N) F11QY3714 could subsequently have those TRUs removed and replaced with TRUs having P/N F11QY3121. An operator could misunderstand the intent of an exclusion in the applicability statement and conclude that the airplane is no longer subject to the requirements of this AD because Airbus Service Bulletin A300-24-0099, A300-24-6082, or A310-24-2088, as applicable, was done in the past. We find that not referring to these service bulletins in the applicability statement ensures that all affected airplanes will be equipped with TRUs having P/N F11QY3714. Also, we find this will not place a significant burden on affected operators because, if an airplane has been modified previously to be equipped with TRUs having P/N F11QY3714, according to paragraph (g) of this AD, no further action is required by paragraph (f) of this AD. We have not changed the final rule in this regard.

The commenter questions why the proposed AD does not mention the MMEL provision specified in French airworthiness directive 2003-082R1. The commenter notes that French airworthiness directive 2003-082R1 specifies that doing the actions in Airbus Service Bulletin A300-24-0099, A300-24-6082, or A310-24-2088, as applicable, is a way to come back to the DGAC's initial MMEL requirements.

We find that it is not necessary for this AD to refer to the MMEL provision specified in French airworthiness directive 2003-082R1. The FAA does not issue ADs to mandate changes to the MMEL. Instead, the Chairman of the Flight Operations Evaluation Board, Flight Standards Service, FAA, revises the MMEL; then, operators of U.S.-registered airplanes must comply with the new provisions of the MMEL within 60 days. In this case, the requirements of the FAA's MMEL are already equally restrictive or more restrictive than the DGAC's MMEL provisions. We have not changed the final rule in this regard.

Note 1 of the proposed AD refers to Thales Service Bulletins F11QY3121-24-001, dated February 2, 1998; and F11QY3121-24-002, dated October 5, 2000. We have revised Note 1 in this final rule to refer to these service bulletins as Auxilec service bulletins.

Also, a typographical error in paragraph (g) of the proposed AD resulted in an incorrect reference to paragraph (a) of the proposed AD, where we intended to reference paragraph (f) of the proposed AD. We have revised paragraph (g) of this AD to refer to paragraph (f) of this AD.

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

This AD affects about 165 airplanes of U.S. registry.

The new actions take about 2 work hours per airplane, at an average labor rate of $65 per work hour. The parts manufacturer will provide required parts free of charge. Based on these figures, the estimated cost of the new actions required by this AD for U.S. operators is $21,450, or $130 per airplane.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

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

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

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

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

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

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

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

On May 7, 1991, we issued AD 91-11-01, amendment 39-6997 (56 FR 22306, May 15, 1991), for certain Boeing Model 747 series airplanes. That AD requires repetitive inspections for cracking of the frame structure and skin in fuselage section 41, and repair, if necessary. That AD also provided for an optional terminating action for the repetitive inspections. We issued that AD to prevent such cracking, which, if not detected and corrected, could result in sudden decompression of the fuselage.

On February 25, 2005, we issued AD 2005-04-51, amendment 39-13995 (70 FR 10485, March 4, 2005). That AD applies to certain Boeing Model 747-100B SUD, -200B, -200C, -200F, and -300 series airplanes. That AD requires repetitive external detailed inspections for cracked skin or loose or missing fasteners of the body skin between body stations (BS) 420 and 460 inclusive and between stringers S-8 and S-12 inclusive on the left and right sides of the airplane, and high frequency eddy current (HFEC) inspection for cracked frames if necessary. That AD also requires repair of any cracked frame or skin and replacement of any loose or missing fastener. That AD was prompted by reports of large cracks common to fuselage frames in the upper deck area, and severed or nearly severed adjacent frames. The actions specified in that AD are intended to detect and correct fatigue cracks in the frames and body skin between BS 420 and 460 inclusive and between stringers S-8 and S-12 inclusive, which could lead to severed frames, and consequent rapid decompression and loss of the structural integrity of the airplane.

In the preamble to AD 2005-04-51, we indicated that the actions required by that AD were considered “interim action” and that further rulemaking action was being considered. We now have determined that further rulemaking action is indeed necessary, and this AD follows from that determination.

On May 16, 1990, we issued AD 90-06-06, amendment 39-6490 (55 FR 8374, March 7, 1990), for certain Boeing Model 747 series airplanes. That AD requires incorporation of certain structural modifications. We issued that AD to prevent degradation in the structural capabilities of the affected airplanes. One of the required modifications incorporates a modification (reference Boeing Service Bulletin 747-53-2272, Revision 12, dated December 22, 1988) that ends the repetitive inspections of certain structure required by this new AD.

We have reviewed Boeing Alert Service Bulletin 747-53A2265, Revision 9, dated February 17, 2005. Among other actions, the service bulletin describes procedures for repetitive surface HFEC inspections, detailed inspections, and general visual inspections for cracks in the body frames, skin, and other internal structure in fuselage section 41; and related investigative and corrective actions if necessary. The related investigative action is a close internal and external visual inspection for possible related skin and frame cracks. The corrective actions include repairing any cracked body frames, skin, and other internal structure; contacting the airplane manufacturer for special repair instructions; or replacing any cracked part with a new part. The service bulletin also provides for an optional terminating action, which would eliminate the need for inspections of certain zones of the fuselage section 41.

The service bulletin specifies that the fuselage section 41 inspections are to be done in stages at 8,000, 10,000, 13,000, 16,000, and 19,000 total flight cycles (referred to as “Flight Limits” in the service bulletin). For areas that are not modified in accordance with Boeing Service Bulletin 747-53-2272, the service bulletin specifies that, after the 19,000 flight limit inspections, repetitive inspections are to be done at intervals between 1,000 flight cycles and 3,000 flight cycles.

Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition.

The unsafe condition described previously is likely to exist or develop on other airplanes of the same type design. This AD is being issued to supersede ADs 91-11-01 and 2005-04-51. This new AD retains certain requirements of the existing ADs. This new AD adds inspections, and removes a one-time deferral of an inspection of the right side of the upper deck at body stations 340 to 400. The actions are required to be done in accordance with the service information described previously, except as discussed under “Differences Between the AD and the Service Bulletin.”

For Group 7 airplanes that have accumulated 8,000 or more total flight cycles, the service bulletin does not specify a grace period for the new 8,000 total flight-cycle internal detailed inspection between BS 420 and 460 inclusive. This AD specifies a compliance time of prior to the accumulation of 8,750 total flight cycles or within 50 flight cycles after the effective date of this AD; whichever occurs later. This compliance time represents an appropriate interval of time for affected airplanes to continue to operate without compromising safety.

For Group 2 and Group 7 through 11 airplanes, the service bulletin does not specify a grace period for the 10,000 total flight cycle internal detailed inspection at BS 440 through 520 inclusive. For Group 2 airplanes, this AD specifies a compliance time of prior to the accumulation of 10,000 total flight cycles, or within 1,000 flight cycles after the effective date of this AD, whichever occurs later. For Group 7 through 11 airplanes, this AD specifies a compliance time of prior to the accumulation of 10,000 total flight cycles, or within 50 flight cycles after the effective date of this AD, whichever occurs later. These compliance times represent an appropriate interval of time for affected airplanes to continue to operate without compromising safety.

The service bulletin also does not specify a grace period for the repetitive supplemental detailed and HFEC inspections between BS 420 and 460 inclusive. For airplanes that have accumulated 8,000 or more total flight cycles, this AD specifies a compliance time of within 750 flight cycles after the last inspection required by paragraph (f) of this AD; or within 50 flight cycles after the effective date of this AD; whichever occurs later. For airplanes that have accumulated less than 8,000 total flight cycles, this AD specifies a compliance time of within 1,000 flight cycles after accomplishing the initial inspection required by paragraph (l) of this AD. These compliance times represent an appropriate interval of time for affected airplanes to continue to operate without compromising safety.

The service bulletin allows operators to determine the number of landings as equal to the number of pressurization cycles where the cabin differential pressure was greater than 2.0 pounds per square inch (psi). However, this AD does not include this provision. We do not consider it appropriate to include various provisions in an AD applicable to a single operator's unique use of an affected airplane. Paragraph (t) of this AD provides for operators' requests for approval of alternative methods of compliance to address these types of unique circumstances.

The service bulletin specifies that you may contact the manufacturer for instructions on how to repair certain conditions, but this AD requires you to repair those conditions in one of the following ways:

• Using a method that we approve; or

• Using data that meet the certification basis of the airplane, and that have been approved by an Authorized Representative for the Boeing Delegation Option Authorization Organization whom we have authorized to make those findings.

The differences described above have been coordinated with Boeing.

This AD would retain certain requirements of AD 91-11-01 and AD 2005-04-51. Since AD 91-11-01 was issued, the AD format has been revised, and certain paragraphs have been rearranged. As a result, the corresponding paragraph identifiers from AD 91-11-01 have changed in this AD, as listed in the following table:

We also revised the wording in paragraph (i) of the final rule (paragraph (e) in AD 91-11-01). For structure that has been replaced with new structure during previous airplane modification/repair, inspection thresholds are measured from the time of replacement of that structure. To clarify that this is the intent of paragraph (i) of the final rule, we revised the phrase “for structure that has been installed during previous airplane modification/repair * * *” from paragraph (e) of AD 91-11-01 to say, “for structure that has been replaced with new structure during previous airplane modification/repair. * * *”

In addition, the corresponding paragraph identifiers from AD 2005-04-51 have changed in this AD, as listed in the following table:

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

This AD is a final rule that involves requirements that affect flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to submit any relevant written data, views, or arguments regarding this AD. Send your comments to an address listed under ADDRESSES. Include “Docket No. FAA-2005-20915; Directorate Identifier 2005-NM-042-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the AD. We will consider all comments received by the closing date and may amend the AD in light of those comments.

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

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

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

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

For the reasons discussed above, I certify that the regulation:

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

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

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

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

Although this action is a final rule, which involves the amendment of Class E airspace within Pennsylvania, by consolidating that airspace into one description, and was not preceded by notice and public procedure comments are invited on the rule. This rule will become effective on the date specified in the DATES section. However, after the review of any comments, if the FAA finds that further changes are appropriate, it will initiate rulemaking proceedings to extend the effective date or to amend the regulation.

Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in evaluating the effects of the rule, and in determining whether additional rulemaking is required. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the rule which might suggest the need to modify the rule.

This amendment to part 71 of the Federal Aviation Regulations (14 CFR part 71) amends the description of Class E airspace in the Harrisburg, PA area by removing the airspace designations for Millard Airport, Annville, PA; Carlisle Airport, Carlisle, PA; Muir AAF, Fort Indiantown Gap, PA; Lancaster Airport, Lancaster, PA; Donegal Springs Airpark, Marietta, PA; Decks Airport, Myerstown, PA; Keller Brothers Airport, Lebanon, PA; York Airport, York, PA. It consolidates those airspace areas into the amended Harrisburg, PA description. The proliferation of airports with Instrument Flight Rule (IFR) operations within the Harrisburg, PA metropolitan area has resulted in the overlap of numerous Class E airspace areas that complicate the chart depictions. This action clarifies the airspace and diminishes the scope and complexity of charting. The IFR airports within those areas will be incorporated into the Harrisburg, PA Class E airspace area. Accordingly, since this action merely consolidates these airspace areas into one airspace designation and has inconsequential impact on aircraft operations in the area, notice and public procedure under 5 U.S.C. 553(b) are unnecessary.

Class E airspace designations for airspace extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9M, dated August 30, 2004, and effective September 16, 2004, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order. The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

History

On February 8, 2005, a notice proposing to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) by consolidating existing Class E-5 airspace designations in the Harrisburg, PA metropolitan area and incorporating those areas into the Harrisburg, PA description was published in the Federal Register (70 FR 6601-6602). Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments to the proposal were received. The rule is adopted as proposed.

The coordinates for this airspace docket are based on North American Datum 83. Class E airspace area designations for airspace extending upward from the surface are published in paragraph 6005 of FAA Order 7400.9M, dated August 30, 2004 and effective September 16, 2004, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be amended in the order.

This amendment to part 71 of the Federal Aviation Regulations (14 CFR 71) provides controlled Class E airspace extending upward from 700 ft above the surface for aircraft conducting IFR operations within the Harrisburg, PA Class E-5 airspace description.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation it is certified that this rule will not have significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This amendment to 14 CFR 71 modifies the Class E airspace area extending upward from 700 feet above the surface at Washington, KS. An examination of controlled airspace for Washington, KS revealed the Class E airspace area is not in compliance with established airspace requirements. In order to comply with airspace requirements for diverse departures, as set forth in FAA Order 7400.2E, Procedures for Handling Airspace Matters, the airspace area is expanded from a 6-mile to a 7.3-mile radius of Washington County Memorial Airport. To comply with FAA Order 8260.19C, Flight Procedures and Airspace, the airspace extension is decreased in width from 4.8 to 2 miles each side of the 021° bearing from the Morrison nondirectional radio beacon (NDB) and in length from 11.7 to 7 miles north of the NDB. These modifications provide controlled airspace of appropriate dimensions to protect aircraft departing from and executing SIAPs to Washington County Memorial Airport and bring the legal description of the Washington, KS Class E airspace area into compliance with FAA Orders 7400.2E and 8260.19C. This area will be depicted on appropriate aeronautical charts. Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9M, Airspace Designations and Reporting Points, dated August 30, 2004, and effective September 16, 2004, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

The FAA anticipates that this regulation will not result in adverse or negative comment and, therefore, is issuing it as a direct final rule. Previous actions of this nature have not been controversial and have not resulted in adverse comments or objections. Unless a written adverse or negative comment or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the Federal Register indicating that no adverse or negative comments were received and confirming the date on which the final rule will become effective. If the FAA does receive, within the comment period, an adverse or negative comment, or written notice of intent to submit such a comment, a document withdrawing the direct final rule will be published in the Federal Register, and a notice of proposed rulemaking may be published with a new comment period.

Interested parties are invited to participate in this rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2005-20575/Airspace Docket No. 05-ACE-12.” The postcard will be date/time stamped and returned to the commenter.

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 tha this final rule does not have federalism under Executive Order 13132.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

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

This amendment to 14 CFR modifies the Class E airspace area extending upward from 700 feet above the surface at Harper, KS. An examination of the Class E airspace area at Harper, KS revealed it does not comply with airspace requirements for diverse departures from Harper Municipal Airport. Also, an extension to this airspace area is required to protect aircraft executing the SIAP to Harper Municipal Airport. In order to comply with airspace requirements set forth in FAA Orders 7400.2E, Procedures for Handling Airspace Matters, and 8260.19C, Flight Procedures and Airspace, the airspace area is expanded from a 6.0-mile to a 7.4-mile radius of Harper Municipal Airport including airspace east of longitude 90°00′00″ W. A southwest extension is added to protect aircraft executing the SIAP and Anthony collocated VOR/tactical air navigational aid (VORTAC) is added to the legal description. These modifications provide controlled airspace of appropriate dimensions to protect aircraft departing from and executing SIAPs to Harper Municipal Airport and bring the legal description of the Harper, KS Class E airspace area into compliance with FAA Orders 7400.2E and 8260.19C. This area will be depicted on appropriate aeronautical charts. Class E airspace areas extending upward from 700 or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9M, Airspace Designations and Reporting Points, dated August 30, 2004, and effective September 16, 2004, which is incorporated by reference in 14 CFR 71.1 The Class E airspace designation listed in this document will be published subsequently in the Order.

The FAA anticipates that this regulation will not result in adverse or negative comment and, therefore, is issuing it as a direct final rule. Previous actions of this nature have not been controversial and have not resulted in adverse comments or objections. Unless a written adverse or negative comment or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the Federal Register indicating that no adverse or negative comments were received and confirming the date on which the final rule will become effective. If the FAA does receive, within the comment period, an adverse or negative comment, or written notice of intent to submit such a comment, a document withdrawing the direct final rule will be published in the Federal Register, and a notice of proposed rulemaking may be published with a new comment period.

Interested parties are invited to participate in this rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2005-20577/Airspace Docket No. No. 05-ACE-14.” The postcard will be date/time stamped and returned to the commenter.

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.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation)—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

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

This amendment to part 95 of the Federal Aviation Regulations (14 CFR part 95) amends, suspends, or revokes IFR altitudes governing the operation of all aircraft in flight over a specified route or any portion of that route, as well as the changeover points (COPs) for Federal airways, jet routes, or direct routes as prescribed in part 95.

The specified IFR altitudes, when used in conjunction with the prescribed changeover points for those routes, ensure navigation aid coverage that is adequate for safe flight operations and free of frequency interference. The reasons and circumstances that create the need for this amendment involve matters of flight safety and operational efficiency in the National Airspace System, are related to published aeronautical charts that are essential to the user, and provide for the safe and efficient use of the navigable airspace. In addition, those various reasons or circumstances require making this amendment effective before the next scheduled charting and publication date of the flight information to assure its timely availability to the user. The effective date of this amendment reflects those considerations. In view of the close and immediate relationship between these regulatory changes and safety in air commerce, I find that notice and public procedure before adopting this amendment are impracticable and contrary to the public interest and that good cause exists for making the amendment effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The final regulations that are the subject of this correction are under section 163(d) of the Internal Revenue Code.

As published, the final regulations (TD 9191) contain an error which may prove to be misleading and is in need of clarification.

The responsibility for this program was originally with the Department of the Army and was published as 32 CFR part 527. The program responsibility was transferred to the Office of the Comptroller of the Department of Defense and is now covered by the DoD Financial Management Regulation (DoDFMR), Volume 5, chapter 4 which replaces the requirements formerly set forth. Therefore, to avoid confusion with the public, 32 CFR part 527 is removed.

The Burlington Northern and Santa Fe Railway Company requested a temporary deviation to allow time to conduct repairs to the Fort Madison Drawbridge, mile 383.9 at Fort Madison, Iowa across the Upper Mississippi River. The Fort Madison Drawbridge currently operates in accordance with 33 CFR 117.5 which requires the drawbridge to open promptly and fully for passage of vessels when a request to open is given in accordance with 33 CFR 117, subpart A. This deviation will be enforced from 6 a.m., July 16, 2005 to 6 a.m., July 18, 2005 and from 6 a.m., July 23, 2005 to 6 a.m., July 25, 2005. During this enforcement period the bridge will remain closed to navigation for 8 hours from 6 a.m. to 2 p.m. July 16 and July 23, 2005. At 2 p.m. the bridge will open for vessels, and will remain open until all waiting and arriving vessels have transited the bridge. Otherwise, during the enforcement period the drawspan will be closed to navigation for 4-hour periods after which time it will open for navigation if vessels are present. The bridge will continue to operate with an opening after each 4-hour closure until regular operations are resumed at 6 a.m., July 18 and July 25, 2005, respectively. There are no alternate routes for vessels transiting through mile 383.9 on the Upper Mississippi River.

The Fort Madison Drawbridge provides a vertical clearance of 13.1 feet above normal pool. Navigation on the waterway consists primarily of commercial tows and recreational watercraft. This deviation has been coordinated with waterway users. No objections were received.

In accordance with 33 CFR 117.35(c), this work will be performed with all due speed in order to return the bridge to normal operations as soon as possible. This deviation from the operating regulations is authorized under 33 CFR 117.35.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that good cause exists for not publishing an NPRM because the threat of a terrorist attack against cruise ships, tank vessels, and HIVs currently exists and is ongoing.

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. The measures contemplated by this rule are intended to prevent terrorist attacks against individuals and facilities within or adjacent to cruise ships, tank vessels, and HIVs located in Monterey Bay and Humboldt Bay. Any delay in the effective date of this TFR would be contrary to the public interest and would unnecessarily expose cruise ships, tank vessels, and HIVs to potential terrorist attacks.

Since the September 11, 2001 terrorist attacks on the World Trade Center in New York, the Pentagon in Arlington, Virginia and Flight 93, the Federal Bureau of Investigation (FBI) has issued several warnings concerning the potential for additional terrorist attacks within the United States. In addition, the ongoing hostilities in Afghanistan and Iraq have made it prudent for U.S. ports to be on a higher state of alert because the Al-Qaeda organization and other similar organizations have declared an ongoing intention to conduct armed attacks on U.S. interests worldwide.

In its effort to thwart terrorist activity, the Coast Guard has increased safety and security measures on U.S. ports and waterways. As part of the Diplomatic Security and Antiterrorism Act of 1986 (Pub. L. 99-399), Congress amended section 7 of the Ports and Waterways Safety Act (PWSA), 33 U.S.C. 1226, to allow the Coast Guard to take actions, including the establishment of security and safety zones, to prevent or respond to acts of terrorism against individuals, vessels, or public or commercial structures. The Coast Guard also has authority to establish security zones pursuant to the Act of June 15, 1917, as amended by the Magnuson Act of August 9, 1950 (50 U.S.C. 191 et seq.) and implementing regulations promulgated by the President in subparts 6.01 and 6.04 of part 6 of title 33 of the Code of Federal Regulations.

In this particular rulemaking, to address the aforementioned security concerns, and to take steps to prevent the catastrophic impact that a terrorist attack against a cruise ship, tank vessel, or HIV would have on the public interest, the Coast Guard is establishing security zones around and under cruise ships, tank vessels, and HIVs entering, departing, moored or anchored within designated waters of Monterey Bay and Humboldt Bay, California. These security zones help the Coast Guard to prevent vessels or persons from engaging in terrorist actions against these types of vessels. Due to these heightened security concerns, and the catastrophic impact a terrorist attack on a cruise ship, tank vessel, or HIV would have on the crew and passengers on board, and the surrounding area and communities, security zones are prudent for these types of vessels.

On December 31, 2002, we published the final rule [COTP San Francisco Bay 02-019] adding § 165.1183, “Security Zones; Cruise Ships and Tank Vessels, San Francisco Bay and Delta ports, California” in the Federal Register (67 FR 79854). That section set forth security zones for cruise ships and tank vessels in San Francisco Bay and delta ports. A subsequent final rule [COTP San Francisco Bay 03-002] published in the Federal Register (69 FR 8817) on February 26, 2004, amended section 165.1183 to include HIVs as protected vessels in that section, along with cruise ships and tank vessels. Neither of these final rules addressed security zones around cruise ships, tank vessels, or HIVs located in Monterey Bay or Humboldt Bay, California.

In addition, we published a notice of proposed rulemaking (NPRM) in the Federal Register (69 FR 56011) on September 17, 2004, that proposed to make permanent these temporary security zones around cruise ships, tank vessels, and HIVs in Monterey Bay and Humboldt Bay. In the NPRM, we proposed to amend 33 CFR 165.1183, “Security Zones; Cruise Ships, Tank Vessels, and High Interest Vessels, San Francisco Bay and Delta ports, California”, to include security zones around cruise ships, tank vessels, and HIVs when they are located in Monterey Bay and Humboldt Bay, California. The final rule that will effect this change is published elsewhere in today's Federal Register, but will not go into effect until 12:01 on May 11, 2005. This temporary rule will provide the desired level of security for these vessels in Monterey Bay and Humboldt Bay until the final rule goes into effect.

Temporary final rules similar to this one have been used in the past to establish security zones around all cruise ships, tank vessels, and HIVs that are anchored, moored, or underway within designated waters of Monterey Bay and Humboldt Bay, California. The first TFR was published in the Federal Register (69 FR 16163) on March 29, 2004. The second TFR was published in the Federal Register (69 FR 55502) on September 15, 2004.

For Monterey Bay, a security zone is activated when any cruise ship, tank vessel, or HIV passes shoreward of a line drawn between Santa Cruz Light (LLNR 305) to the north in position 36°57.10′ N, 122°01.60′ W, and Cypress Point, Monterey to the south, in position 36°34.90′ N, 121°58.70′ W.

For Humboldt Bay, a security zone is activated when any cruise ship, tank vessel, or HIV enters an area within a 4 nautical mile radius line drawn west of the Humboldt Bay Entrance Lighted Whistle Buoy HB (LLNR 8130), in position 40°46.25′ N, 124°16.13′ W, or enters waters within the Humboldt Bay Harbor.

The security zone remains in effect while the cruise ship, tank vessel, or HIV is underway, anchored or moored within the designated waters of Monterey Bay or Humboldt Bay. When activated, the security zone will encompass all waters, extending from the surface to the sea floor, within 100 yards ahead, astern and extending 100 yards along either side of the vessel. This security zone is automatically deactivated when the vessel departs from the areas of Monterey Bay or Humboldt Bay designated in this rule. Vessels and people may be allowed to enter an established security zone on a case-by-case basis with authorization from the Captain of the Port, or his designated representative.

Vessels or persons violating this section will be subject to the penalties set forth in 33 U.S.C. 1232 and 50 U.S.C. 192. Pursuant to 33 U.S.C. 1232, any violation of a security zone described herein, is punishable by civil penalties (not to exceed $32,500 per violation, where each day of a continuing violation is a separate violation), criminal penalties (imprisonment up to 6 years and a maximum fine of $250,000), and in rem liability against the offending vessel. Any person who violates this section, using a dangerous weapon, or who engages in conduct that causes bodily injury or fear of imminent bodily injury to any officer authorized to enforce this regulation, also faces imprisonment up to 12 years. Vessels or persons violating this section are also subject to the penalties set forth in 50 U.S.C. 192: seizure and forfeiture of the vessel to the United States, a maximum criminal fine of $10,000, and imprisonment up to 10 years, and a civil penalty of not more than $25,000 for each day of a continuing violation.

The Captain of the Port will enforce these zones and may enlist the aid and cooperation of any Federal, State, county, municipal, and private agency to assist in the enforcement of the regulation.

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

Although this regulation restricts access to a portion of navigable waters, the effect of this regulation will not be significant because: (i) The zones encompass only a small portion of the waterway; (ii) vessels are able to pass safely around the zones; and (iii) vessels may be allowed to enter these zones on a case-by-case basis with permission of the Captain of the Port, or his designated representative.

The size of the zones is the minimum necessary to provide adequate protection for all cruise ships, tank vessels, and HIVs, other vessels operating in the vicinity of these vessels, adjoining areas, and the public. The entities most likely to be affected are fishing vessels and pleasure craft engaged in recreational activities and sightseeing.

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

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

We expect this rule may affect owners and operators of vessels, some of which may be small entities, intending to fish, sightsee, transit, or anchor in the waters affected by these security zones. These security zones will not have a significant economic impact on a substantial number of small entities for several reasons: Small vessel traffic will be able to pass safely around the area and vessels engaged in recreational activities, sightseeing and commercial fishing have ample space outside of the security zones to engage in these activities. Small entities and the maritime public will be advised of these security zones via public notice to mariners.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. If the rule will affect your small business, organization, or government jurisdiction and you have questions concerning its provisions or options for compliance, please contact Lieutenant Doug Ebbers, Waterways Management Branch, U.S. Coast Guard Marine Safety Office San Francisco Bay, (510) 437-2770.

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

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

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

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

This rule will 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 create an environmental risk to health or risk to safety that may disproportionately affect children.

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

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

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

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

We have analyzed this rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation because we are establishing a security zone.

A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” are available in the docket where located under ADDRESSES.

On December 31, 2002, we published a final rule adding § 165.1183, “Security Zones; Cruise Ships and Tank Vessels, San Francisco Bay and Delta ports, California” in the Federal Register (67 FR 79854). That section set forth security zones for cruise ships and tank vessels in San Francisco Bay and delta ports. A subsequent final rule published on February 26, 2004, in the Federal Register (69 FR 8817), amended section 165.1183 to include HIVs as protected vessels in that section, along with cruise ships and tank vessels. Neither of these final rules addressed security zones around cruise ships, tank vessels, or HIVs located in Monterey Bay or Humboldt Bay, California.

In order to establish similar security zones around cruise ships, tank vessels, and HIVs that are anchored, moored or underway in Monterey Bay and Humboldt Bay, California, we published a temporary final rule in the Federal Register (69 FR 16163) on March 29, 2004. That temporary final rule was later extended by a second TFR, published in the Federal Register (69 FR 55502) on September 15, 2004. Another TFR is being published elsewhere in today's Federal Register that provides for the desired level of security for these vessels in Monterey Bay and Humboldt Bay until this final rule goes into effect.

The Captain of the Port has determined that it is in the best interest of homeland security to make these security zones permanent. Accordingly, we published a notice of proposed rule making (NPRM) on September 17, 2004, in the Federal Register (69 FR 56011) that proposed to establish security zones around cruise ships, tankers, and high interest vessels in Monterey Bay and Humboldt Bay through a revision to the already existing rule that established security zones around cruise ships, tankers, and high interest vessels in San Francisco Bay (67 FR 79856). In addition, the NPRM proposed updating the definition of “cruise ship” in the existing rule to match the definition in 33 CFR 101.105 and changing the term “tank vessel” to “tanker” so that it would coincide with the definition in 33 CFR 160.3 and better reflect our intention for the rule to apply to self-propelled vessels. We received no letters commenting on the proposed rule. No public hearing was requested, and none was held.

Vessels or persons violating this security zone will be subject to the penalties set forth in 33 U.S.C. 1232 and 50 U.S.C. 192. Pursuant to 33 U.S.C. 1232, any violation of the security zone described herein, is punishable by civil penalties (not to exceed $32,500 per violation, where each day of a continuing violation is a separate violation), criminal penalties (imprisonment up to 6 years and a maximum fine of $250,000), and in rem liability against the offending vessel. Any person who violates this section, using a dangerous weapon, or who engages in conduct that causes bodily injury or fear of imminent bodily injury to any officer authorized to enforce this regulation, also faces imprisonment up to 12 years. Vessels or persons violating this section are also subject to the penalties set forth in 50 U.S.C. 192: seizure and forfeiture of the vessel to the United States, a maximum criminal fine of $10,000, and imprisonment up to 10 years.

The Captain of the Port will enforce these zones and may enlist the aid and cooperation of any Federal, State, county, municipal, and private agency to assist in the enforcement of the regulation.

In its effort to thwart potential terrorist activity, the Coast Guard has increased safety and security measures on U.S. ports and waterways. As part of the Diplomatic Security and Antiterrorism Act of 1986 (Pub. L. 99-399), Congress amended section 7 of the Ports and Waterways Safety Act (PWSA), 33 U.S.C. 1226, to allow the Coast Guard to take actions, including the establishment of security and safety zones, to prevent or respond to acts of terrorism against individuals, vessels, or public or commercial structures. The Coast Guard also has authority to establish security zones pursuant to the Act of June 15, 1917, as amended by the Magnuson Act of August 9, 1950 (50 U.S.C. 191 et seq.) and implementing regulations promulgated by the President in subparts 6.01 and 6.04 of part 6 of title 33 of the Code of Federal Regulations.

In this particular rulemaking, to take steps to prevent the catastrophic impact that a terrorist attack against a cruise ship, tanker, or HIV would have on the public interest, the Coast Guard is establishing permanent security zones around and under cruise ships, tankers, and HIVs that enter, are moored or anchored in, or depart from the designated waters of Monterey Bay or Humboldt Bay, California. These security zones result in increased security by providing a standoff distance for blast and collision, a surveillance and detection perimeter, and a margin of response time for security personnel, and are necessary to safeguard these types of vessels, their passengers and crew, and the surrounding areas and communities from sabotage or other criminal or subversive acts.

This rule, for security reasons, prohibits the entry of any vessel or person inside the security zone without specific authorization from the Captain of the Port, or his designated representative. Due to heightened security concerns and the catastrophic impact a terrorist attack on one of these vessels would have on the public, environment, surrounding areas, and nearby communities, establishing security zones is a prudent and necessary action for these vessels.

We received no letters commenting on the proposed rule. No public hearing was requested, and none was held.

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

We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. Although this regulation restricts access to a portion of navigable waters, the effect of this regulation is not significant because: (i) The zones only encompass a small portion of the waterway; (ii) vessels are able to pass safely around the zones; and (iii) vessels may be allowed to enter these zones on a case-by-case basis with permission of the Captain of the Port, or his designated representative.

The size of the zones is the minimum necessary to provide adequate protection for all cruise ships, tankers, HIVs, other vessels operating in the vicinity of these vessels, adjoining areas, and the public. The entities most likely to be affected are fishing vessels and pleasure craft engaged in recreational activities and sightseeing.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule will 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 for several reasons: (i) Vessel traffic is able to pass safely around the area, (ii) vessels engaged in recreational activities, sightseeing and commercial fishing have ample space outside of the security zones to engage in these activities, and (iii) small entities and the maritime public will be advised of these security zones via public notice to mariners.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. If the rule will affect your small business, organization, or government jurisdiction and you have questions concerning its provisions or options for compliance, please contact Lieutenant Doug Ebbers, Waterways Management Branch, U.S. Coast Guard Marine Safety Office San Francisco Bay, (510) 437-2770.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal Regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-800-REG-FAIR (1-888-734-3247).

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

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

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

This rule will 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 create an environmental risk to health or risk to safety that might disproportionately affect children.

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

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

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

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

We have analyzed this rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation because it establishes security zones.

A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” (CED) are available in the docket where indicated under ADDRESSES.

Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.

Texas' concept of an early, voluntary eight-hour air quality plan was accepted by the EPA and made available nationally after slight modification as the Early Action Compact (EAC) program in November 2002. Areas that signed on to the EACs enjoy delayed effective dates of ozone nonattainment designations until April 15, 2008, on the condition that all milestones of the program are met. In return those areas must voluntarily adopt and implement programs locally which will keep them or bring them into attainment by 2007. These programs are required to be submitted to EPA as a State Implementation Plan (SIP) for approval.

The vehicle idling rules were proposed and adopted by the State at the request of the Austin EAC area local air quality planning organization. The idling prohibition is a control strategy in the EAC agreement which was later submitted to the State for adoption.

The idling restriction rules are a new section in 30 TAC 114, Control of Air Pollution from Motor Vehicles; Subchapter J, Operational Controls for Motor Vehicles; Division 2, Locally Enforced Motor Vehicle Idling Limitations. The rule was adopted on November 17, 2004, and submitted to EPA for approval on December 6, 2004, as part of the Austin EAC SIP.

The idling rule implements idling limits for gasoline and diesel-powered engines in heavy-duty motor vehicles within the jurisdiction of any local government in the State that has signed a Memorandum of Agreement with the Texas Commission on Environmental Quality. Heavy duty vehicles with a Gross Vehicle Weight Rating greater than 14,000 pounds are affected. Idling is not allowed for more than five consecutive minutes when the motor vehicle is not in motion. Idling activity by subject vehicles during the period April 1 through October 31 of each calendar year is controlled by this rule.

In addition to the lighter weight motor vehicles, other exemptions apply because of traffic conditions; to military, emergency, and law enforcement vehicles; where the propulsion engine provides power for a mechanical operation of that vehicle; during vehicle maintenance or diagnostic purposes; when defrosting a windshield; when supplying heat or air conditioning necessary for passenger comfort (maximum 30 minutes allowed for commercial transportation or school buses); to airport ground support equipment; and when a lessee operates the vehicle and is not employed by the vehicle owner.

The local government that signs the MOA is delegated the authority to enforce the program within its jurisdiction. Any non-compliance is a violation of State regulations.

There are no federal laws or regulations which govern idle time for heavy-duty motor vehicles. EPA's Guidance for Quantifying and Using Long Duration Truck Idling Emission Reductions in State Implementation Plans and Transportation Conformity 1 is not intended to apply to emission reductions resulting entirely from state or local anti-idling laws, regulations, or ordinances. Although this guidance was not used as a primary tool for evaluation, parts of it were used as a basis for consistency. California Air Resources Board (CARB) adopted a truck idling rule which will become effective in early 2005 pending their Office of Administrative Law (OAL) approval. This pending rule was also used as a basis for consistency. See the Technical Support Document for a detailed analysis of the idling rule. We are approving the Texas Locally Enforced Idling Prohibition Rule because it is consistent with existing EPA guidance and CARB regulations, and because it strengthens the SIP.

We are granting final approval for Texas' Locally Enforced Idling Prohibition Rule.

The EPA is publishing this rule without prior proposal because we view this as a noncontroversial amendment and anticipate no relevant adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are received. This rule will be effective on June 10, 2005 without further notice unless we receive relevant adverse comment by May 11, 2005. If we receive relevant adverse comments, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. We 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 we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of a relevant adverse comment.

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 10, 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).)

Background

In implementing its responsibilities under the Endangered Species Act of 1973, as amended (ESA), the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), the Migratory Bird Treaty Act (MBTA), the Bald and Golden Eagle Protection Act (BGEPA), and other wildlife laws, the U.S. Fish and Wildlife Service issues permits, licenses, and certificates that authorize the holders to engage in certain wildlife-related activities that are regulated by international treaty or laws of the United States. The Service charges user fees to offset the cost of processing applications for these permits, licenses, and certificates, as well as the cost of monitoring and maintaining active permit files.

The general statutory authority to charge fees for processing applications for permits and certificates is found in 31 U.S.C. 9701, which states that services provided by Federal agencies are to be “self-sustaining to the extent possible.” The authority to charge fees is also found under various wildlife laws. Specifically, the ESA, 16 U.S.C. 1540(f), authorizes the Secretary to “charge reasonable fees for expenses to the Government connected with permits or certificates authorized by [the ESA] including processing applications.” The Marine Mammal Protection Act (MMPA), 16 U.S.C. 1374(g), also provides that the “Secretary shall establish and charge a reasonable fee for permits” issued under the MMPA.

Federal user fee policy, as stated in Office of Management and Budget (OMB) Circular No. A-25, requires Federal agencies to recoup the costs of “special services” that provide benefits to identifiable recipients. Permits are special services, authorizing identifiable recipients to engage in activities not otherwise authorized for the general public. Some of the Service's programs that issue permits receive little or no designated budget appropriations specifically for permitting activities. Others receive some funding, but such funding is part of the overall program budget and is not enough to completely cover the permitting activity costs. Our ability to effectively provide these special services depends in large part on user fees. As a result, we have revised the standard permit application fee, designated under title 50 of the Code of Federal Regulations (CFR) at § 13.11(d)(4), which has not been revised since 1982, in order to recoup more of the costs associated with providing permitting services. [For additional discussion of why the Service must raise the current application fees, please refer to the proposed rule (68 FR 51222, published on August 26, 2003).]

While the fee revisions promulgated by this rule will help the Service to recover a greater portion of the cost of administering permits, the increases are not sufficient to cover the total cost of our permit programs (much less defray other program costs). The new fee structure is a compromise between recouping the entire cost of providing these special services and the need to establish a fee schedule that will not unduly burden individual applicants.

During the comment period, which was open from August 26 through October 10, 2003, the Service received a total of 273 comments. Thirteen of these comments were in agreement with raising application fees and did not raise any specific concerns. Eighty-six comments were in general disagreement with raising fees, but also did not raise any specific concerns beyond objecting to the concept of raising fees. Two comments addressed issues that were outside the scope of the proposed rule and therefore will not be addressed here (these comments will be passed on to the relevant Service office for further consideration). The remaining issues raised by the commenters, and our responses to each, are summarized below.

Issue 1: We received three comments recommending that tribal entities and Native Americans be exempted from application fees. The proposed rule would have waived permit application fees only for Federal and State agencies and their agents, and for permits for Indian religious use. Generally, these commenters requested that the fee waiver be expanded to include all activities conducted by Native Americans or by tribal governments. Another commenter questioned exempting tribal members from fees for applications involving religious activities. This commenter did not see such an exemption as being fair to other Americans who could not claim such an exemption.

Response: We agree that fees should be waived for tribal governments, and have revised the final rule at § 13.11(d)(3) to expand the fee waiver to tribal governments. However, the Service does not agree that exempting all tribal members from all application fees is justified. While we support, as indicated in the proposed rule, a fee exemption for tribal members who are engaged in religious activities, we do not believe that tribal members who request permits for secular or commercial activities should be exempt from paying the application fees. The basis for exempting tribal members from paying application fees for permits for religious use is the American Indian Religious Freedom Act of 1978 and the Service's Federal Trust responsibilities toward Native American tribes. Therefore, for example, we will not charge a fee for Native American religious eagle permits or Native American religious purposes—eagle transport permits. As we explained in the proposed rule, fees also may be waived on a case-by-case basis for extraordinary extenuating circumstances provided that the issuing permit office and a Regional or Assistant Director approve the waiver.

Issue 2: Twenty-five comments were received about the need to improve the permitting process as a way to reduce the cost of running the permitting programs and, thus, require lower fees from applicants.

Response: The Service agrees that we need to continue improving the permitting process to ensure that it is effective and responsive to user needs. All of the Divisions that issue permits are involved in such efforts. While it is true that making the permitting process more effective and efficient should reduce some costs of the programs, it will not eliminate the need for application fees. In addition, since it has been so long since the fees were raised, the increased fees are needed to give the Service critical resources that will help us to improve the efficiency of the programs. As stated in the proposed rule, the Service will periodically re-evaluate the application fees to determine if changes are warranted.

Issue 3: We received 18 comments regarding the financial difficulty migratory bird rehabilitators will face in paying a fee for the permit necessary to carry out their work. There was a general agreement among these commenters that rehabilitators spend a large amount of their own financial resources to rehabilitate injured migratory birds and as such should not be required to pay an application fee.

Response: The Service recognizes that migratory bird rehabilitators provide care to injured and sick birds and help to increase public awareness about wildlife. Nevertheless, the Service incurs substantial costs when processing applications for these permits. As stated in the proposed rule, the $50 application fee would be for permits that are valid for 5 years. This means that the annual cost for obtaining a migratory bird rehabilitation permit is only $10/year. The Service does not consider such a fee to be a significant economic burden for permit applicants.

Issue 4: One commenter questioned the Service's commitment to scientific research, and raised concerns about application fees for scientific research and collection permits being too high and, as such, having an adverse effect on the ability of researchers to carry out their work. The commenter believes there is a disparity between the application fee for scientific collecting permits and the fee for other permitted activities, such as rehabilitation permits or scientific research import permits under the Wild Bird Conservation Act (WBCA). The same commenter noted that migratory bird scientific collecting permits are not always issued for the full 3-year tenure authorized by regulations at 50 CFR 21.23, which provide that “the term of the permit shall not exceed three (3) years.” The commenter felt that the proposed fees would be more acceptable if the permit tenure was lengthened.

Response: The Service is committed to promoting scientific research and facilitating the authorization of such activities. The Service also understands that researchers, particularly graduate students, may be constrained by budgetary issues and that application fees are one issue they face. However, the Service does not agree that the proposed application fees are too high or that implementing such fees would result in less research being carried out. As stated in the proposed rule, the Service will strive to combine permitting authorization to eliminate the need to submit multiple applications to cover all aspects of a researcher's work. By combining the permitting authority, the applicant would need to submit only one application (and only one fee) to request the required authorization to carry out their work. For instance, an applicant conducting research on eagles and migratory birds and importing or exporting specimens may obtain a single permit under the MBTA, BGEPA, and CITES. With regard to the apparent disparity between the cost of different applications, it is important to realize that the time and resources necessary to process different types of applications vary. As a rule, applications that involve take of healthy wildlife (as opposed to sick and injured wildlife) from the wild require more extensive review. The workload associated with the review is not necessarily less if the duration of the proposed project is less than 3 years. Rather, the processing workload is determined by the species, quantity, and status of the species. Given the different levels of review required for different types of applications and the varying issuance criteria under different laws, the application fees for different applications must vary.

As far as permit tenure for migratory bird scientific collecting permits, many of these permits are issued for less than 3 years, for a variety of reasons. First, if an applicant proposes a project lasting only 1 or 2 years, the permit may be issued for less than 3 years. Second, new permits (as opposed to renewals) often will be issued for less than 3 years because our policy has been to coordinate scientific collecting permits to expire on the same date in a given year. This facilitates our administration by enabling us to generate permit renewal notices and renewed permits in large batches. In January 2003, we shifted the expiration date for scientific collecting permits from December 31 to March 31 to create a smoother renewal process for permittees and us. The shift benefits permittees by enabling them to submit their renewal request with their annual report, which is due January 31 of the year following conduct of the activities. Further, it benefits the permittee by better ensuring that we will have received the permittee's renewal request 30 days before expiration of the permit, which enables the permittee to continue to conduct permitted activities if the permit expires before the Service acts on the renewal. However, as a result of this fixed expiration date, the tenure of new permits will rarely be for a full 3 years (unless the permit was issued on or around March 31). Finally, scientific collecting permits are occasionally issued for less than 3 years because of biological concerns or uncertainties regarding the species to be taken, but these instances are rare.

For projects that are not already limited to less than 3 years because of the duration of the proposed scientific research project, and which are not limited by biological concerns, we will consider revising our procedures so that these permits can be valid for the full 3-year tenure authorized by regulation. We will also consider amending the scientific collecting permit regulation to extend the authorized permit tenure for collecting permits. However, since we did not propose extending the tenure of scientific collecting permits in our proposed rulemaking, we cannot amend the regulation by including it here in a final rulemaking. We intend to revise migratory bird scientific collecting regulations in the near future, and we will consider this option during the course of that rulemaking process.

Issue 5: Forty-six commenters expressed concern that the increase in fees, particularly application fees for CITES re-export certificates, was too high and would adversely impact small businesses. The primary concern expressed by these commenters was the slim profit margin under which their businesses operate, such that any increase in application fees could adversely affect their business.

Response: The Service is keenly aware that some businesses based on the utilization of wildlife may run on a very low profit margin. We recognize that if the overall cost of conducting business is significantly increased due to the application fee rising, there may be a negative impact on the business. This may be particularly true when requesting authorization to re-export a limited number of CITES listed species. For example, if a proposed re-export shipment of two snakes going to Japan is valued at only $300, an application fee of $75, one quarter of the shipment's value, may appear high. While the fee increase is not intended to restrict or eliminate the sustainable utilization of wildlife, it may have an economic effect on small shipments or transactions. However, as stated in the proposed rule, the Service must expend time and resources to review and process applications. In the case of businesses applying to conduct activities that are otherwise prohibited by law, the permits authorizing such activities are special use permits, and the burden for addressing such requests falls on the applicant and his/her customers, not the general public. It may be necessary for some businesses to readdress how they are conducting their activities to ensure that the most productive and efficient procedures are being used. While the Service understands that the increased fees may impact some businesses, we must raise the fees to ensure that we can adequately address our responsibilities under the various regulations and laws.

Issue 6: Three commenters raised the point that local governments carry out similar activities as State and Federal agencies with regard to wildlife conservation and management. It was their opinion that the fee exemption should be extended to local government agencies as well.

Response: The Service agrees that local governments should also be exempt from the requirement to pay application fees for Service permits. Accordingly, we have revised the final rule at § 13.11(d)(3) to extend the fee waiver to local governments, as well as tribal governments, and individuals and institutions acting on behalf of a Federal, tribal, State, or local government agency.

Issue 7: Four commenters suggested that the application fees for migratory bird depredation permits not be raised. These commenters were concerned that the public would have to pay $50 or $100 to address the problem of property damage caused by migratory birds, and that it would be inappropriate to require homeowners and businesses to pay more than the current $25 application fee to process requests for depredation permits, particularly given the amount of time it sometimes takes to obtain this type of permit.

Response: The final rule continues to require a $50 application fee for homeowner depredation permits and a $100 application fee for other depredation permits. We have not revised this fee from the proposed rule because these permits are among the most complex to process due to the extra level of scrutiny that we are required to undertake when issuing permits that would authorize taking birds—sometimes lethally—from the wild. Even though this fee is one of the lowest of all the permit application fees the Service will charge, the increased fees will help the Migratory Bird Program to more quickly and efficiently issue these and other types of permits.

Issue 8: One commenter stated that the application fee for ESA enhancement-of-survival permits for landowners entering into Safe Harbor Agreements (SHAs) and Candidate Conservation Agreements with Assurances (CCAAs) should not be raised to $50. The commenter expressed an opinion that no fee should be charged since the landowners are entering into a voluntary agreement with the Service that helps “the Service achieve its objectives and legal responsibilities under the ESA.” As such, the commenter called for the application fee to be rescinded in order to encourage more landowners to enter into CCAAs and SHAs.

Response: While we recognize and appreciate the important conservation work that private landowners perform on their land, we incur substantial cost when processing enhancement-of-survival permit applications for CCAAs and SHAs. These agreements provide important benefits to listed and unlisted species, while the participating non-Federal landowner benefits by receiving assurances and allowances for future take. The $50 application fee applies to permits that are valid for differing lengths of time, from 10 years and up to 50 or more years in some cases. We do not believe this fee is a significant economic burden to permit applicants, especially when averaged over the lifetime of the permit, or that the fee will be a disincentive to landowners. Additionally, private landowners may enter into an “umbrella” or programmatic agreement where a nongovernment organization, State agency, or other entity applies for and holds the permit under which they enroll private landowners through a Certificate of Inclusion. In these cases, the private landowner would not incur any application fee.

Issue 9: A single commenter raised the point that, instead of raising the application fees for ESA permits, the Service should charge a fee for “Section 7 consultations conducted by the Service, or for subsequent permits that are issued to a developer or project proponent” who would be more economically able to bear the financial costs.

Response: This final rule increases the fees for ESA incidental take permits associated with Habitat Conservation Plans, as well as the fees for recovery permits. Section 7 consultations are conducted on those projects that are authorized, funded, or carried out by Federal agencies. Congress has not given the Service authority to collect fees from other Federal agencies or their applicants to conduct section 7 consultations.

Issue 10: A large number of commenters (97) commented on the cost of applying for falconry permits and how the program was being managed. A majority of these commenters specifically referred to an issue recently raised at an International Association of Fish and Wildlife Agencies (IAFWA) meeting. IAFWA called on the Service to transfer the Federal permitting responsibility of falconry to State agencies, thus consolidating the permitting requirements in one agency (the State), as opposed to two (State and Federal). Most of those commenting on falconry permit application fees felt the proposed fee was too high, particularly given the current regulations requiring the renewal of a falconer's Federal permit at the same time State permits are renewed. Some States require renewal annually, while others require renewal every 2 or 3 years. The commenters pointed out that if the cost of a Federal falconry permit is $100 each time it is renewed, in a 3-year period, falconers who need to renew annually would pay $300, while others who have to renew only every 3 years would pay only $100.

Response: We recognize that the Federal renewal process for falconers who live in States with regulations that require renewal of falconry permits every year or every 2 years may create an additional burden that other falconers may not face. However, in addition to creating more work and expense for the falconer, both the 1-year and 2-year renewal requirements result in increased workload and staffing demands for the Service. The Service's costs associated with processing these renewals do not decrease because the permit tenure is shorter—the workload entailed in processing these renewals remains the same regardless of how frequently we are required to undertake it because of a State's regulations. Therefore, we believe that a fee of $100 for Federal falconry permits and renewals, no matter in which State the applicant/falconer resides, is both necessary and appropriate.

While the IAFWA proposal to consolidate falconry permitting may have merit, it exceeds the scope of the present rulemaking. We believe that this rule is not the appropriate venue for considering this option. To this end, a proposed rule addressing this specific issue was published on February 9, 2005 (70 FR 6978).

Issue 11: One commenter expressed confusion regarding the fee that would be charged for the importation of non-native threatened or endangered sport-hunted trophies. This commenter thought that the narrative did not clearly explain how this fee would be applied.

Response: The application fee for a permit to import a non-native threatened or endangered sport-hunted trophy will be $100. No additional fees would be charged in relation to CITES requirements. If the permit needs to be renewed due to a delay in importing the specimen, we will charge a $50 fee to reissue the permit.

Issue 12: One commenter questioned whether some of the policies addressed in the proposed rule, such as “Renewals and Amendments,” merely codify existing Service policies or if they are actually new policies that are being presented for the first time. The commenter requested that the Service clearly indicate which of these issues are clarifications and which are new policies.

Response: Most of the issues raised in the proposed rule are merely clarifications of procedures currently used by the Service. Since some issues, such as when a request is for a renewal versus when a request is for a new permit, have not been codified, doing so in this rule was important to ensure that the Service is being consistent across programs and to provide the public with clear guidance.

Issue 13: One commenter was concerned about the proposed amendment to § 13.42, which states that a permit is specific to a particular activity and that permittees are subject to appropriate conditions placed on the permit. The commenter was particularly concerned that the proposed language for § 13.42 would give the Director the discretion to establish specific conditions for the issuance of permits, giving the Director the ability to treat different applicants disparately and inviting arbitrariness into the permit issuance system.

Response: The proposed language for § 13.42 is intended to clarify the existing regulatory language, not to change the criteria the Service uses to issue permits. The new language was proposed for § 13.42 to reiterate that a permittee may have specific conditions placed on the permit that affect when, how, where, and to what extent the permitted activity can be carried out. Such specific conditions are needed to allow the Service to tailor individual permit authorizations to the applicant's particular qualifications, and to ensure the continued conservation of the affected species. Without the ability to refine permit conditions, all permittees would have identical permit authorizations, no matter what experience, facilities, or other qualifications they possess, and without regard for the unique conservation needs of the affected species.

After further review of the proposed changes to § 13.42, we realized that the language was somewhat redundant to language already codified in § 13.21(e)(1). We have therefore taken the first two sentences of the proposed language for § 13.42 and amended § 13.21(e)(1) to contain this language. This administrative change was made to eliminate duplicating language and to make the regulations easier to understand.

The concept that permits are specifically issued for a particular activity is not a new idea, and the new language only clarifies the current section. This new language in no way alters or affects how the Service can issue or deny a permit request. The issuance of every permit must conform to the general issuance criteria for that permit type. These criteria are established in separate regulations addressing permit authorization for that type of activity (e.g., falconry or captive breeding for endangered species).

After reviewing the comments we received, the Service believes that the majority of the proposed changes to § 13.11 are acceptable and should be implemented. However, as mentioned above in “Summary of Comments and Recommendations,” we have made a few revisions to this final rule from what we proposed originally.

With the implementation of new CITES Resolutions and in an ongoing effort to improve the efficiency of the permitting process, the Division of Management Authority has implemented certain internal changes to the permit procedures. The Service announced some of these new procedures in a previous Federal Register proposed rule (65 FR 26664; May 8, 2000). Other procedural changes were outlined in the proposed rule to this final rule. The procedural changes that were previously addressed were presented in the proposed rule to this final rule for information purposes and to explain why some additional fees were required. They were not proposed for codification.

As stated in the proposed rule, when applicants need more than one type of permit to cover their proposed activities (e.g., for the export of a bird covered by both CITES and the MBTA, or the take from the wild of a bird covered by both the ESA and MBTA), the Service may issue a consolidated permit combining the multiple authorizations. We received no comments on this issue and will retain the language presented in the proposed rule.

To ensure consistency, the Service is taking this opportunity to clarify its position on permit renewals and amendments. As stated in the proposed rule, applications to renew a permit when the tenure of a permit is expiring or has expired are effectively new permit applications. Therefore, all applicable fees will be assessed. For most permit types, the Service will assess a fee for amendments to a valid permit where the amendment reflects a substantive change within the scope of the permit. We will not charge permittees for administrative changes to valid permits, such as address and telephone number changes. The amount for an amendment is identified in the fee schedule. If there is no fee next to the permitted activity you wish to amend, this indicates either that your particular permit cannot be amended and a new application would need to be submitted or that no fee would be charged for amending the permit (you would need to contact the issuing office to determine which situation applies). For further discussion on this issue, please see the proposed rule at 68 FR 51222.

Currently, § 13.11(d)(3) provides for a waiver of permit fees for “any Federal, State or local government agency, [or] to any individual or institution under contract to such agency for the proposed activities.” In the proposed rule, we suggested limiting the fee waiver for public institutions to Federal and State governmental agencies and to individuals or institutions under contract to such agencies. We also stated that fees could be waived on a case-by-case basis for extraordinary extenuating circumstances provided that the issuing permit office and a Regional or Assistant Director approves the waiver. However, after reviewing comments stating that we should waive fees for applications from both local and tribal governments, we agree that the fee waiver should include these entities. (See discussion under Issues 1 and 6, above.) In addition, we have altered the language to identify that individuals or institutions “acting on behalf of ” any Federal, tribal, State, or local government agency would be exempt from application fees. We have amended the proposed language in § 13.11(d)(3) to reflect these changes.

In the proposed rule, we proposed several administrative changes to § 13.3, “Scope of regulations”; § 13.11(b) regarding Service addresses; and § 13.11(c), regarding the time required to process some requests. We received no comments regarding these administrative changes, and because they will improve the permitting process, all of the proposed changes will be implemented as proposed.

In reviewing the proposed rule, we determined that the proposed addition of § 13.12(c) and the proposed revision of § 13.42 contained language that was somewhat redundant to language that had already been codified in §§ 13.12(a)(9) and 13.21(e)(1). To eliminate any redundancy in § 13.12, we will not finalize § 13.12(c) as proposed, but have instead revised § 13.12(a)(9) to include the new language. In addition, we have removed the first sentence of the proposed § 13.42, which contained the redundancy with § 13.21(e)(1), and combined it with § 13.21(e)(1). The remaining proposed language of § 13.42 will be implemented as proposed.

We received no comments on the proposal to extend the permit tenure for taxidermist permits (§ 21.24) and waterfowl sale and disposal permits (§ 21.25) from 3 years to 5 years, and we will implement the proposed changes through this final regulation.

Section 7(a)(1) of the ESA (16 U.S.C. 1531 et seq.) provides that “[t]he Secretary [of the Interior] shall review other programs administered by him and utilize such programs in furtherance of the purposes of this Act.” Furthermore, section 7(a)(2) of the Act requires all Federal agencies to “insure that any action authorized, funded, or carried out * * * is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat.” Our review of this rule pursuant to section 7 of the ESA concluded that this action will not affect listed or proposed species or critical habitat.

This rule has been evaluated for impacts to migratory birds, with emphasis on species of management concern, and is in accordance with the guidance in Executive Order 13186.

In accordance with the criteria in Executive Order 12866, this rule is not a significant regulatory action. OMB has made this determination of significance under Executive Order 12866.

a. This rule will not have an annual economic effect of $100 million or adversely affect an economic sector, productivity, jobs, the environment, or other units of government. A cost-benefit and economic analysis is not required. The purpose of this rule is to more closely align the fee structure with the Federal cost of permit processing for permits issued by the Divisions of Migratory Bird Management, Law Enforcement, Endangered Species, and Management Authority. Fees charged for permits issued by the Fish and Wildlife Service have not increased since 1982. During that time period, Federal salaries have increased by 128 percent and since permit reviews are a labor-intensive activity, Service programs have had to absorb the additional cost of permit processing.

In total, the Service processes approximately 25,000 permits annually.

About half of these permits are issued to small entities, many of whom can pass on the economic effect of the fee increase (an average of $50 per year per permit) to consumers, depending on the elasticity of demand. The maximum loss in consumer surplus, if all costs were passed along to consumers, would be $1.25 million annually. However, for commercial permittees, the average $50 cost increase of the permits will be spread over many products and result in negligible price increases to consumers. The Service believes that the permit fee for working with regulated plants and wildlife is a very small part of the cost of these activities and will result in a negligible economic impact to consumers and businesses.

The benefit of better aligning the permit application fees schedule to the cost of Federal processing is that this will shift more of the burden of payment for these services from taxpayers as a whole to those persons who are receiving the government services. User fee increases reflect a related shift in appropriations of taxes to government programs, allowing those tax dollars to be applied to other programs that benefit the general public.

The administrative costs involved in implementing this rule are minimal, since the Service permit programs are already established, and the mechanisms for collecting the permit application fees are already in place. Therefore, the net gain of reducing the costs on taxpayers greatly outweighs the costs of introducing the user fee increases.

b. This rule will not create serious inconsistencies or otherwise interfere with other agencies' actions. This rule pertains to a Federal permit application process that already exists, and the only purpose of this rule is to update the fee structure to recover Federal costs of processing the permit applications.

c. This rule will not negatively impact or affect entitlements, other grants, user fees, loan programs, or the rights and obligations of their recipients. This rule affects user fees charged for plant and wildlife permits by updating and better aligning the fees with the Federal cost of processing the permits. The average fee increase will be $50 per year with a range of annual fee increases running from $10 for a migratory bird rehabilitation permit to $275 for a marine mammal public display permit. Multiplying the expected 25,000 permits issued annually by the average fee increase of $50 yields a maximum of $1.25 million, which is well below the threshold for a significant regulatory action.

d. This rule does not raise novel legal or policy issues. The current fee schedule for plant and wildlife related permits has been in place since July 15, 1982. No new permits are included in this rulemaking. The only purpose of this rulemaking is to update and better align the permit fee schedule with the actual Federal cost for processing the applications.

The Service has performed the threshold analysis required under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq (RFA), and the Small Business Regulatory Enforcement Fairness Act, 5 U.S.C. 801 et seq (SBREFA), and has determined that this rule will not have a significant economic impact on a substantial number of small entities. Therefore, a regulatory flexibility analysis is not required.

a. The increase in user fees for Federal permits will affect approximately 12,737 small entities, including importers and exporters of plants, wildlife, and animal products, wildlife propagators, museums, airports, animal exhibitors, migratory bird taxidermists, and migratory bird rehabilitators.

The total cost increase for small entities applying for permits will be approximately $636,850 for the approximately 12,737 permits that are issued annually to small entities. Thus, the average user fee under this proposal will increase by approximately $50 per year. This average includes annual increases ranging from $10 for a migratory bird rehabilitation permit to $275 for a marine mammal public display permit.

The economic effect on small entities of this rulemaking will be an increased cost of doing business. Depending on the elasticity of demand for the goods and services authorized by the permits, much of the cost increase will be passed on to consumers. Thus, the Service does not anticipate that this rule will result in a significant economic burden to small businesses.

b. This rule does not introduce any new reporting, record keeping, or other compliance requirements, and does not introduce any new legal requirements that duplicate other Federal regulations. The average cost increase will be borne by all entities doing business involving wildlife.

c. This rule will not cause major increases in prices for consumers, individual industries, Federal, State, or local government agencies or geographic regions; or have significant adverse impacts on competition, employment, investment, innovation, or the ability of U.S.-based enterprises to compete with foreign enterprises. A small cost increase to better reflect the cost of review of the permit application will not adversely affect competition in this industry since all entities will be required to pay the increased fees. Since the increase of the cost of the permits will be spread over many products, it will result in negligible price increases to consumers, and will not have a significant effect on the number of permit applications and the corresponding total number of permitted wildlife-related activities conducted.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.):

a. This rule will not “significantly or uniquely” affect small governments. A Small Government Agency Plan is not required. The Service has determined and certified pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that this rulemaking will not impose a cost of $100 million or more in any given year on local or State government or private entities. The rulemaking only affects the Federal review and issuance of permits under Federal laws. This rule does not apply to State regulations.

b. This rule will not produce a Federal mandate of $100 million or greater in any year, i.e., it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. The process of wildlife permit application review and issuance is already in place, and this rulemaking is only updating the fee schedule to better align it with the actual cost of processing permits.

In accordance with Executive Order 12630, the rule does not have significant takings implications. This rule will not result in the physical occupancy of property, the physical invasion of property, or the regulatory taking of any property. A takings implication assessment is not required.

In accordance with Executive Order 13132, and based on the discussions in Regulatory Planning and Review above, this rule does not have significant Federalism effects. A Federalism assessment is not required. This rule does not have a substantial direct effect on fiscal capacity, change the roles or responsibilities of Federal or State governments, or intrude on State policy or administration.

In accordance with Executive Order 12988, the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.

This rule does not contain new or revised information collection for which OMB approval is required under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). Information collection associated with this rule is covered by existing OMB approval Nos. 1018-0022 (expires 7/31/07), 1018-0094 (expires 9/30/2007), 1018-0093 (expires 6/30/2007), and 1018-0092 (expires 9/30/2007). For approvals that will expire soon, we are currently in the process of requesting 3-year renewals of OMB approval. The Service 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.

We have determined that this rule is categorically excluded under the Department's NEPA procedures in 516 DM 2, Appendix 1.10.

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and 512 DM 2, this rule will have no effect on Federally recognized Indian tribes.

On May 18, 2001, the President issued an Executive Order addressing regulations that affect energy supply, distribution, and use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. Because this rule is only updating the fee schedule for permit application review and issuance, it is not a significant regulatory action under Executive Order 12866 and is not expected to significantly affect energy supplies, distribution, and use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required.