On March 17, 1997, L-3 Communications/Integrated Systems, 7500 Maehr Road, Waco, Texas 76705, applied for a Supplemental Type Certificate (STC) to modify a Boeing Model 747SP airplane for use as a flying observatory. This airplane will fly in the stratosphere to altitudes of 45,000 feet and use infrared technology to observe objects in space. The airplane is a stratospheric observatory for infrared astronomy or SOFIA. The modification consists of the installation of a 2.5-meter telescope, scientist workstations, and containment vessels for liquid helium and nitrogen (liquid converters, valves, evaporating coils, liquid lines, regulators, indicators, fittings, etc). Various science instruments (each having their own airworthiness approval), each weighing approximately 800 pounds, located in the workstation area, can be attached to the telescope for a specific mission (one per mission only).

The mission of the SOFIA airplane is to collect infrared signals. The observatory collects very weak infrared signals that were emitted by distant objects in space thousands of years ago. These signals are focused through the telescope onto sensors in the science instrument which is located on the cabin side of the telescope. To detect the weak infrared signals, the detectors in these sensors are cooled to temperatures near absolute zero by the use of cryogenic fluids. These fluids are contained in vessels similar to vacuum bottles. Their design and installation are covered by these special conditions. These extremely cold environments can only be produced by cryogenic liquids. The SOFIA observatory depends on liquid helium and nitrogen to chill the internal passageways of the detector systems. The amount of cryogens used here is small.

Cryogens, in a much greater quantity, are used in the area where the telescope mirror is installed. Liquid nitrogen is converted to a gas and circulated around the mirror to pre-cool it to prevent it from fogging up as it goes from a warm moist atmosphere on the ground to the cold dry atmosphere at high altitudes.

The modified Boeing Model 747SP airplane, with the L-3 Communications/Integrated Systems design will fly to 45,000 feet and in a gradual arc pattern for extended periods of time. Additionally, various science instruments will be installed under this STC or similar STCs, which will be referenced back to this STC.

Under the provisions of 14 CFR 21.101, L-3 Communications/Integrated Systems must show that the modified Boeing Model 747SP airplane, as changed, continues to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A20WE, 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.”

If the Administrator finds that the applicable airworthiness regulations ( i.e. , part 25, as amended) do not contain adequate or appropriate safety standards for the Boeing Model 747SP airplane modified by L-3 Communications/Integrated Systems 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 Boeing Model 747SP must comply with (1) either the “No Acoustical Change” provisions of § 21.93(b) or 14 CFR part 36, as amended by Amendments 36-1 through 36-23 and any later amendments that are effective 5 years prior to the STC approval date, and (2) either the “No Emissions Change” provisions of § 21.93(c) or 14 CFR part 34, as amended by Amendments 34-1 through 34-3.

Special conditions, as defined in 14 CFR 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 L-3 Communications/Integrated Systems apply at a later date for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under the provisions of § 21.101.

The modified Boeing Model 747 SP will incorporate the following novel or unusual design features:

1. Cryogenic fluids (nitrogen and helium) contained in the science instrument in the cabin compartment. The cryogenic gases could cause an asphyxiation hazard to the crew and passengers.

2. The cryogens (liquid nitrogen), stored for chilling the mirror during ascent, might come in contact with the airplane's structure, which could cause damage to the surrounding structural areas.

The cryogenic systems must be designed and installed to ensure that no failure of the systems, including a leak in any part of the systems, would prevent continued safe flight and landing of the airplane.

There are no specific regulations that address the design and installation of liquid nitrogen systems and liquid helium systems. Existing requirements such as 14 CFR 25.1309 and 25.1438(b) are applicable to this installation. However, these regulations do not address the effect of cryogenic gases of passengers or crew and aircraft structure. The FAA needs to specify additional design standards, which specifically address these novel or unusual design features for systems utilizing cryogen liquids to ensure that a minimum level of safety is maintained, establishing a level of safety equivalent to the current regulations.

Notice of proposed special conditions No. 25-05-01-SC for the Boeing Model 747 SP; NASA Stratospheric Observatory For Infrared Astronomy (SOFIA) airplanes was published in the Federal Register on February 8, 2005 (70 FR 6598). No comments were received, and the special conditions are adopted as proposed.

As discussed above, these special conditions are applicable to Boeing 747SP airplane. Should L-3 Communications/Integrated Systems apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. A20WE to incorporate the same novel or unusual design feature, these special conditions would apply to that model as well.

This action affects only certain novel or unusual design features on the Boeing Model 747SP airplane. 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 has determined that notice and opportunity for prior public comment is impracticable because these procedures would significantly delay certification of and delivery of the affected airplanes. In addition, the substance of these special conditions has 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, the FAA invites 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 based on the comments we receive.

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 16, 2005, Duncan Aviation, Inc., Lincoln, Nebraska, applied to the Wichita Aircraft Certification Office, for a supplemental type certificate (STC) to modify certain Gulfstream Model LP 1125 Westwind Astra airplanes to include the installation of integrated display systems (electronic displays and electronic engine controls). These integrated display systems installed in this airplane have the potential to be vulnerable to HIRF external to the airplane. The subject Gulfstream Model LP 1125 Westwind Astra airplane is a small business jet powered by two Honeywell (formerly Allied Signal and Garrett) TFE 731-3A-200G or TFE 731-3C-200G engines. This airplane operates with a 2-person crew and holds nine passengers.

Under the provisions of 14 CFR 21.101, Duncan Aviation, Inc. must show that the Gulfstream Model LP 1125 Westwind Astra airplane, as changed, continues to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A16NM, 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 certification basis for the modified Gulfstream Model LP Westwind Astra airplane includes 14 CFR part 25 effective February 1, 1965, as amended by Amendments 25-1 through 25-54. In addition, the certification basis includes certain special conditions, exemptions, and equivalent levels of safety that are not relevant to these special conditions.

If the Administrator finds that the applicable airworthiness regulations (part 25, as amended) do not contain adequate or appropriate safety standards for the Gulfstream Model LP 1125 Westwind Astra airplane, modified by Duncan Aviation, Inc., because of a novel or unusual design feature, special conditions are prescribed under the provisions of 14 CFR 21.16. In addition to the applicable airworthiness regulations and special conditions, the Gulfstream Model LP 1125 Westwind Astra airplane 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 14 CFR 11.19, are issued in accordance with § 11.38, and become part of the airplane's type certification basis in accordance with § 21.101.

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

The modified Gulfstream LP 1125 Westwind Astra airplane will incorporate integrated display systems (electronic displays and electronic engine controls) that will perform critical functions. These systems may be vulnerable to HIRF external to the airplane. The current airworthiness standards of part 25 do not contain adequate or appropriate safety standards for the protection of this equipment from the adverse effects of HIRF. Accordingly, this system is considered to be a novel or unusual design feature.

There is no specific regulation that addresses protection requirements for electrical and electronic systems from HIRF. Increased power levels from ground-based radio transmitters and the growing use of sensitive avionics/electronics and electrical systems to command and control airplanes have made it necessary to provide adequate protection.

To ensure that a level of safety is achieved equivalent to that intended by the regulations incorporated by reference, special conditions are needed for the Gulfstream Model LP 1125 Westwind Astra airplane. These special conditions require that new avionics/electronics and electrical systems that perform critical functions be designed and installed to preclude component damage and interruption of function due to both the direct and indirect effects of HIRF.

With the trend toward increased power levels from ground-based transmitters, and the advent of space and satellite communications coupled with electronic command and control of the airplane, the immunity of critical digital avionics/electronics and electrical systems to HIRF must be established.

It is not possible to precisely define the HIRF to which the airplane will be exposed in service. There is also uncertainty concerning the effectiveness of airframe shielding for HIRF. Furthermore, coupling of electromagnetic energy to cockpit-installed equipment through the cockpit window apertures is undefined. Based on surveys and analysis of existing HIRF emitters, an adequate level of protection exists when compliance with the HIRF protection special condition is shown with either paragraph 1 or 2 below:

1. A minimum threat of 100 volts rms (root-mean-square) per meter electric field strength from 10 KHz to 18 GHz.

a. The threat must be applied to the system elements and their associated wiring harnesses without the benefit of airframe shielding.

b. Demonstration of this level of protection is established through system tests and analysis.

2. A threat external to the airframe of the field strengths identified in the table below for the frequency ranges indicated. Both peak and average field strength components from the table are to be demonstrated.

The threat levels identified above are the result of an FAA review of existing studies on the subject of HIRF, in light of the ongoing work of the Electromagnetic Effects Harmonization Working Group of the Aviation Rulemaking Advisory Committee.

As discussed above, these special conditions are applicable to the Gulfstream Model LP 1125 Westwind Astra airplane. Should Duncan Aviation, Inc., apply at a later date for an STC to modify any other model included on Type Certificate No. A16NM to incorporate the same or similar novel or unusual design feature, these special conditions would apply to that model as well as under the provisions of § 21.101.

This action affects only certain novel or unusual design features on the Gulfstream Model LP 1125 Westwind Astra airplane. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

The substance of the special conditions for these airplanes has been subjected to the notice and comment procedure in several prior instances and has been derived without substantive change from those previously issued. Because a delay would significantly affect the certification of the airplane, which is imminent, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions immediately. 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.

A proposal to amend 14 CFR part 39 to include an AD for the specified model helicopters was published in the Federal Register on March 8, 2005 (70 FR 11165). That action proposed to require, within 5 hours TIS, locating relay K7212 and its associated cable in the overhead panel assembly and visually inspecting the electrical cable in the splice area for arcing or burns. If arcing or burns are found, this proposal would require, before further flight, replacing an unairworthy cable with an airworthy cable kit.

Ente Nazionale per l'Aviazione Civile (ENAC), the airworthiness authority for Italy, notified the FAA that an unsafe condition may exist on Agusta Model A109E helicopters. ENAC advises carrying out the controls and modification called for by Agusta Bollettino Tecnico No. 109EP-22, dated November 12, 2001 (BT 109EP-22).

Agusta has issued BT 109EP-22, which specifies visually inspecting the cable for the possible presence of arcing or burns. If the presence of arcing or burns are found, the BT specifies modifying the direct current electrical system bus bar connections with a kit, P/N 109-0823-01-101. ENAC classified this service bulletin as mandatory and issued AD No. 2001-481, dated November 13, 2001, to ensure the continued airworthiness of these helicopters in Italy.

This helicopter model is manufactured in Italy and is type certificated for operation in the United States under the provisions of 14 CFR 21.29 and the applicable bilateral agreement. Pursuant to the applicable bilateral agreement, Italy has kept us informed of the situation described above. We have examined the findings of ENAC, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were received on the proposal or the FAA's determination of the cost to the public. The FAA has determined that air safety and the public interest require the adoption of the rule as proposed with a change of names in the FOR FURTHER INFORMATION CONTACT section of this AD. This change will neither increase the economic burden on any operator nor increase the scope of the AD.

The FAA estimates that this AD will affect 12 helicopters of U.S. registry. The required actions will take about 1/2 work hour to visually inspect and 2.5 work hours to replace the cable per helicopter at an average labor rate of $65 per work hour. Required parts will cost approximately $707 per helicopter. Based on these figures, we estimate the total cost impact of the AD on U.S. operators to be $10,824 assuming the cable is replaced on the entire fleet.

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 an economic evaluation of the estimated costs to comply with this AD. See the DMS to examine the economic evaluation.

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.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Dassault Model Mystere-Falcon 50 and 900 series airplanes, and Model Falcon 2000 and 900EX series airplanes, was published in the Federal Register on April 27, 2004 (69 FR 22745). That action proposed to require temporary changes to the Airplane Flight Manual (AFM) to prohibit the use of certain functions depending on whether or not the operator chooses to deactivate the global positioning system (GPS). For airplanes on which the GPS is deactivated, that action proposed to require installing a deactivation locking collar on certain circuit breakers. For certain airplanes, that action proposed to require modifying the wiring of the global positioning/inertial reference system (GP/IRS).

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

One commenter, an airplane operator, requests that the proposed applicability be changed to exclude airplanes that are equipped with Universal Navigation (UNS-1C) flight management systems with self-contained GPS. The commenter points out that airplanes with UNS-1C do not display the unsafe condition identified in the proposal. The commenter states that it is not clear in the proposal whether or not the applicability includes airplanes with UNS-1C.

We do not agree with the commenter. The airplane manufacturer advises that airplanes may have been delivered with the UNS-1C system installed, but states that there is no assurance that these airplanes have not since been modified into a condition that will exhibit the unsafe condition. The manufacturer has addressed this issue in the service bulletins listed in the proposal. In addition, the applicability statement already specifies that the proposal applies only to airplanes that are equipped with the subject Gp/IRS, and specifies the GP/IRS by part number. We have not changed the final rule for this issue.

Another commenter, an avionics manufacturer, requests that the proposal be revised to account for airplanes that are not equipped with the subject GP/IRS, but are instead equipped with different avionics. The commenter points out that airplanes equipped with the different avionics have a different GPS. The commenter wishes to avoid loss of function by operators of Falcon airplanes that are equipped with the different avionics.

We disagree with the request to revise the proposal. The applicability statement already specifies that the proposal applies only to airplanes that are equipped with the subject GP/IRS, and specifies the GP/IRS by part number. Therefore, the proposal does not apply to airplanes equipped with the different avionics that have a different GPS. In addition, the commenter provides various edits to the preamble of the proposal, but does not suggest any substantive changes to the body of the AD or provide data to support its position. The preamble contains information that is not usually carried over to the final rule. We have not changed the final rule in this regard.

The same commenter requests that we remove the paragraph titled “Interim Action” in the proposal. The commenter states that there is an interim step in the proposal, which is the option to pull the GPS circuit breakers or to fly with a navigational restriction. The commenter further states, however, that the proposal also provides the terminating action of a wiring modification, which cancels both the option of pulling the GPS circuit breakers and the navigational restrictions. In the commenter's opinion, this wiring modification represents the final action in the proposal.

We agree with the commenter that the proposal is not interim action. The actions described in paragraphs (c) and (d) of the proposal are terminating action for the pulled GPS circuit breakers and the navigational restrictions. We have removed the “Interim Action” paragraph from the final rule.

One commenter, the airplane manufacturer, requests that we clarify the statement of the unsafe condition. This statement is located above paragraph (a) and in the “Summary” paragraph of the proposal. The commenter states that the unsafe condition, as worded in the proposed AD, does not have enough detailed information to be clear and accurate for readers.

We agree with the commenter. The revisions to the statement, provided by the commenter, clarify the unsafe condition. Therefore, we have revised the statement in the final rule to incorporate the commenter's suggestions.

One commenter, the airplane manufacturer, notes that the dates on some of the referenced service bulletins are incorrect. The commenter states that all service bulletins should be dated October 29, 2003.

We agree that the proposal should have the correct dates for all service bulletins. We examined the copies of the service bulletins that we had when we wrote the proposal, and found that four are dated October 15, 2003. We discussed this discrepancy with the commenter and determined that the service bulletins dated October 15, 2003, are review copies that were sent to the FAA and to the Direction Générale de l'Aviation Civile (DGAC) for concurrence. We requested that the commenter provide us with copies of the four service bulletins, dated October 29, 2003, and found that the procedures in the four service bulletins dated October 29, 2003, are virtually identical to those dated October 15, 2003. As listed in the following table, the October 15 service bulletins and the October 29 service bulletins have the same revision level.

The manufacturer assures us that no members of the public received review copies of the service bulletins, dated October 15, 2003. Therefore, we have changed the final rule to reference the October 29, 2003, final versions of the service bulletins as the acceptable source of service information for the applicable actions in the final rule.

One commenter, the airplane manufacturer, does not agree with paragraph (c) of the proposal. The commenter, the airplane manufacturer, states that deactivating the GPS is not the specific terminating action for the F2000 airplane with head-up display (HUD), or for the Falcon 50 airplane. The commenter requests that we revise paragraph (d) to reflect the appropriate terminating action for these airplanes; this terminating action is either following the navigational restrictions or deactivating the GPS.

We partially agree with the commenter. We agree that the language of proposed paragraph (c) is misleading because it states that deactivating the GPS is the only terminating action for these airplanes. However, we do not agree with the recommendation to revise paragraph (d) to reflect the appropriate information. We have determined that paragraph (b) is the appropriate place to put the requested change. Paragraph (b) of the proposal requires that operators revise the limitations section of the AFM to allow either following the navigational restrictions or deactivating the GPS. Also, we realize that an MF50 service bulletin (Falcon 50 Service Bulletin F50-416, dated October 29, 2003) was referenced in the proposal as being required for the mandatory wiring modification. This was an error, as that action is not mandatory for the MF50, and also is not consistent with the French airworthiness directive. Therefore, we have revised Table 2 in paragraph (a)(2) to remove the reference to Falcon 50 Service Bulletin F50-416, dated October 29, 2003; and paragraphs (b)(3) and (b)(4) of the final rule to reflect the appropriate terminating action and include the commenter's requested change.

The same commenter notes that the “prior to further flight” statement in paragraph (c) of the proposal does not correspond with the seven-day compliance time for revising the AFM that is required by paragraph (b) of the proposal. The commenter further notes that the seven-day compliance time is referenced in the paragraph titled “Differences Between French Airworthiness Directive and This Proposed AD.”

From this comment we infer that the compliance time for paragraph (c) is unclear. Paragraph (b) of the proposal requires that operators revise the AFM within seven days after the effective date of the AD, and, thereafter, to operate the airplane within the limitations specified by the AFM revision. For some airplanes, one of those limitations is to deactivate the GPS. The opening sentence of paragraph (c) of the proposal states, “For airplanes on which the GPS is deactivated in accordance with the applicable temporary change (TC) specified in paragraph (b) of this AD: Prior to further flight, install a deactivation locking collar * * *.” The purpose of paragraph (c) is to ensure that operators who deactivate the GPS in accordance with the AFM limitations referenced in paragraph (b) of the proposal will install a locking collar prior to further flight after deactivating the GPS. The AFM revision is required within seven days after the effective date of the proposal, therefore the limitations in the AFM (including deactivating the GPS) are not required until seven days after the effective date of the final rule. To ensure that this compliance time is clear, we have changed paragraph (c) of the final rule to state, “Prior to further flight after deactivating the GPS.”

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

The FAA estimates that 543 airplanes of U.S. registry will be affected by this AD, that it will take approximately 1 work hour per airplane to accomplish the TCs to the AFM, and that the average labor rate is $65 per work hour. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $35,295, or $65 per airplane.

For airplanes that require the wiring modification required by this AD, we estimate that it will take approximately 2 work hours per airplane to accomplish the modification. Based on these figures, the cost impact of this action on U.S. operators is estimated to be $130 per airplane.

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.

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.

What events have caused this AD? The Federal Office for Civil Aviation (FOCA), which is the airworthiness authority for Switzerland, recently notified FAA that an unsafe condition may exist on certain Pilatus Models PC-12 and PC-12/45 airplanes. The FOCA reports that an abrupt nose down pitch condition occurred on a PC-12 airplane.

Investigation revealed that the pilot disconnected the autopilot when the flaps were at a 40-degree selection.

Pilatus has determined that the pitch actuator sense circuitry becomes over-active during a 40-degree flight phase. Therefore, Pilatus designed a new pitch actuator that modifies sense output signals and removes the flap in motion signal to the autopilot.

What is the potential impact if FAA took no action? This condition, if not corrected, could result in an out-of-trim condition when the flaps are at a 40-degree flight phase and the pilot disconnects the autopilot. This condition could lead to reduced ability to control the airplane.

Has FAA taken any action to this point? We issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to certain Pilatus Models PC-12 and PC-12/45 airplanes. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on April 13, 2005 (70 FR 19342). The NPRM proposed to require you to insert the temporary revision into the Limitations Section of the Pilot Operating Handbook (POH). The NPRM also proposed to require you to replace the pitch actuator with an improved design pitch actuator and make the necessary wiring and circuit breaker changes, as applicable. Installing the improved design pitch actuator would terminate the need for the temporary revision in the POH.

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

What is the commenter's concern? Two commenters state the requirement to replace the pitch actuator within 6 months after the effective date of the AD may place an unnecessary burden on both the operators and service centers.

The Pilatus PC-12 fleet consists of over 500 airplanes worldwide. Because of material quantity constraints, the logistics associated with replacing the pitch actuator within six months would be nearly impossible for all operators.

Extensive flight-testing identified the unsafe condition associated with operation of the autopilot with 40-degree flaps.

The AD requires inserting a temporary revision into the Pilot Operating Handbook (POH) prohibiting the use of the autopilot with the flaps at the 40-degree position, which removes the risk of a major out of trim condition.

The commenters request the compliance time for replacing the pitch actuator be changed from “Within the next 6 months after the effective date of this AD, unless already done,” to “Before December 31, 2006.”

What is FAA's response to the concern? We partially agree with the commenters.

Since it has been identified through flight-testing that the unsafe condition can be avoided by inserting Temporary Revision No. 11 or No. 40 into the Limitation Section of the POH, we agree to extend the compliance time for replacing the pitch actuator.

Extending the compliance time will allow the owners/operators more time to get the pitch actuator replaced and allows the supplier to meet the demand for parts in a timely manner. However, we rarely use a specific calendar date to express compliance time and only then when engineering analysis establishes a direct relationship between the date and either the compliance “threshold” or the “grace period.”

Basically, the commenters are requesting an additional 12 months to replace the pitch actuator.

Therefore, we will change the final rule AD action and increase the compliance time for replacing the pitch actuator to “Within the next 18 months after the effective date of this AD, unless already done.”

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

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

How many airplanes does this AD impact? We estimate that this AD affects 330 airplanes in the U.S. registry.

What is the cost impact of this AD on owners/operators of the affected airplanes? We estimate the following costs to incorporate the Pilot Operating Handbook (POH) Temporary Revision:

Pilatus will provide warranty credit for replacing the pitch actuator to the extent stated in the service information.

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

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

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

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

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

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

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

We prepared a summary of the costs to comply with this AD (and other information as included in the Regulatory Evaluation) and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES. Include “Docket No. FAA-2005-20720; Directorate Identifier 2005-CE-17-AD” in your request.

On April 11, 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 Newburgh, NY metropolitan area and incorporating those areas into the Newburgh, NY description was published in the Federal Register (70 FR 18337-18338). 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 part 71) provides controlled Class E airspace extending upward from 700 ft above the surface for aircraft conducting IFR operations within the Newburgh, NY 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.

Docket No. FAA-2005-20056; Airspace Docket No. 05-AEA-01, published in the Federal Register on April 11, 2005 (70 FR 18295-18296), amended the description of the Class E airspace at Harrisburg, PA. An error was discovered in the geographic coordinates describing the designated airspace area. This action corrects that error.

Although this action is a final rule, which involves the amendment of Class E airspace within New York, by consolidating that airspace into one description, and was not preceded by notice and public procedures, 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 Newburgh, NY area by removing the airspace designations for Joseph Y. Resnick Airport (N89), Ellenville, NY; Sullivan County International Airport (MSV), Monticello, NY; Monticello Airport (N37), NY; Stewart International Airport (SWF), Newburgh, NY; Orange County Airport (MGJ), NY; Randall Airport (06N), NY; Dutchess County Airport (POU), Poughkeepsie, NY; Sky Acres Airport (44N), NY; Stormville Airport (N69), NY; Wurtsboro-Sullivan County Airport (N82), Wurtsboro, NY. It consolidates those airspace areas into the amended Newburgh, NY description. The proliferation of airports with Instrument Flight Rule (IFR) operations within the Newburgh, NY geographic 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 Newburgh, NY 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 operational 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.

Federal Register Document 05-8723, Airspace Docket No. 05-AAL-06, published on Monday, May 2, 2005 (70 FR 22590), revised the Class E airspace at Nome, AK. An error was discovered in the airspace description that indicated the Class E airspace designated as surface area was effective during specific dates and times. This statement was inaccurate. The Class E airspace designated as surface area is effective continuously. This action corrects that error.

We did not publish a notice of proposed rulemaking (NRPM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Publishing an NPRM is contrary to the public interest because the rule provides for workman and public safety during repairs to the bridge. The repairs are needed as sections of the bridge will be completely replaced due to safety concerns. It will be necessary to use dynamite in order to destroy those portions of the bridge and it is in the public interest to protect them from the associated safety risks.

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 for the same reasons noted above.

The PGA Boulevard bridge, Intracoastal Waterway mile 1012.6, North Palm Beach, Palm Beach County, Florida is being repaired. The Florida Department of Transportation notified the Coast Guard that the bridge's current schedule of operation must be changed to effectuate the repairs. The changes will require single-leaf bridge openings on the hour and half-hour although double-leaf openings will continue to be available on most dates. Additionally, the waterway will be closed for short periods to allow for the safe repair of the bridge. More specific times and dates will be published in the Local Notice to Mariners and Broadcast Notice to Mariners. In cases of emergency, the bridge will be opened as soon as possible.

The rule will require single-leaf bridge openings of the PGA Boulevard Bridge on the hour and half-hour. Double-leaf openings will continue to be available on most dates. Waterway closures shall be authorized by the Captain of the Port Miami and will be published in the Local Notice to Mariners and Broadcast Notice to Mariners. The draw shall open as soon as practicable for tugs with tows, public vessels of the United States and vessels in dangerous situations.

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). The Coast Guard expects the economic impact of this rule to be so minimal that a full Regulatory Evaluation is unnecessary because the rule will allow for bridge openings while bridge repairs are ongoing so long as it is safe. Also, all closure times will be published in advance so that mariners may plan accordingly.

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 would not have a significant economic impact on a substantial number of small entities because the regulations provide for bridge openings, short closure periods and for the reasonable needs of navigation.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking process by providing contact information for those personnel that can address questions regarding this regulation. If this rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in FOR FURTHER INFORMATION CONTACT .

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

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

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

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in the 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 M16475.1D, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (32)(e), of the Instruction, from further environmental documentation because this is a drawbridge operation regulation. Under figure 2-1, paragraph (32)(e), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule.

The Galveston County Navigation District has requested a temporary deviation in order to replace the synchro motor position transmitter and associated electrical switches of the Pelican Island Bascule Span Bridge across the Galveston Channel, mile 4.5, Gulf Intracoastal Waterway, mile 356.1, west of Harvey Lock at Galveston, Galveston County, Texas. Replacement of the synchro motor position transmitter is necessary for the continued operation of the draw span. This temporary deviation will allow the bridge to remain in the closed-to-navigation position from 11 p.m. on Thursday, June 9, 2005, until 9 a.m. on Friday, June 10, 2005. There may be times, during the closure period, when the draw will not be able to open for emergencies.

The bridge provides 12 feet of vertical clearance in the closed-to-navigation position. Thus, most commercial vessels and some recreational vessels will not be able to transit through the bridge site when the bridge is closed. Navigation on the waterway consists of tugs with tows, fishing vessels and recreational craft including sailboats and powerboats. Due to the existence of a practical alternate route of no greater distance, it has been determined that this closure will not have a significant effect on these vessels.

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 operation as soon as possible. This deviation from the operating regulations is authorized under 33 CFR 117.35.

Under the Deepwater Port Act of 1974, as amended, 33 U.S.C. 1501 et seq. , a deepwater port is a fixed or floating manmade structure other than a vessel, or a group of structures, located beyond State seaward boundaries and used or intended for use as a port or terminal for the transportation, storage, and further handling of oil or natural gas for transportation to any State. The Coast Guard regulates the licensing of deepwater ports, in 33 CFR parts 148, 149, and 150, under a temporary interim rule issued in 2004 (69 FR 724, Jan. 6, 2004).

On May 16, 2005, the Coast Guard issued Navigation and Vessel Inspection Circular No. 03-05 (NVIC 03-05). NVIC 03-05 provides guidance to deepwater port license applicants and operators, to the Coast Guard, and to “certifying entities” that perform certification work on behalf of the Coast Guard. This guidance relates to the design, plan review, fabrication, installation, maintenance, and oversight of deepwater ports. NVIC 03-05 encourages voluntary compliance, but is not intended to and does not impose legally binding requirements on any person.

The ADDRESSES section of this notice tells how to view or obtain a copy of NVIC 03-05. The Coast Guard is issuing this notice of availability in accordance with the commitment we made in our temporary interim rule, at 69 FR 726, to keep the public informed of Coast Guard policies interpreting the deepwater port regulations. We will issue additional notices of availability, should we modify or supplement NVIC 03-05 in the future.

On May 9, 2005, we published a notice of proposed rulemaking (NPRM) entitled “Security Zone: Portland Rose Festival on Willamette River” in the Federal Register (70 FR 24342). We received no letters commenting on the proposed rule. No public meeting was requested, and none was held.

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 . Earlier notice was not provided to the Coast Guard that the regulation as written would not provide the required security for the vessels participating in the 2005 Portland Rose Festival. Any delay encountered in this regulation's effective date would be contrary to public interest because immediate action is necessary to ensure the safety and security of the participating vessels.

Each year in June, the annual Portland, Oregon Rose Festival is held on the waters of the Willamette River near Portland, Oregon. On May 29, 2003, the Coast Guard published a final rule (68 FR 31979) establishing a security zone, in 33 CFR 165.1312, for the security of naval vessels on a portion of the Willamette River during the fleet week of the Rose Festival. The security zone in 33 CFR 165.1312 is enforced each year during the event to provide for public safety by controlling the movement of vessel traffic in the regulated area. The current regulation does not accurately describe the enforcement period.

This rule permanently amends 33 CFR 165.1312 requiring compliance with the regulation each year from the first Wednesday in June falling on the 4th or later through the following Monday in June. Specific times of compliance will be published in the Federal Register each year as a notice of enforcement.

The regulated area and the security zone remain unchanged.

The Coast Guard received no comments and thus has made no changes from the proposed rule.

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. This expectation is based on the fact that the regulated area of the Willamette River is a small area, enforced for a short period of time, and it is established for the benefit and safety of the recreational boating public.

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. This rule will affect the following entities some of which may be small entities: The owners and operators of vessels intending to transit or anchor in the security zone during the times this zone is enforced. This security zone will not have a significant economic impact on a substantial number of small entities for the following reasons: Vessels desiring to transit this area of the Willamette River may do so by scheduling their trips in the early morning or evening when the restrictions on general navigation imposed by this section will not be in effect.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking process. If the rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

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

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in 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. The Coast Guard has determined that because this security zone will not last longer than one week in duration that it should be “Categorically Excluded”. Under figure 2-1, paragraph (34)(g), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule.

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:

• Crop production (NAICS 111)

• Animal production (NAICS 112)

• Food manufacturer (NAICS 311)

• Pesticide manufacturer (NAICS 32532)

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

In addition to using EDOCKET ( http://www.epa.gov/edocket/ ), you may access this Federal Register document electronically through the EPA Internet under the “ Federal Register ” listings at http://www.epa.gov/fedrgstr/ . A frequently updated electronic version of 40 CFR is available at E-CFR Beta Site Two at http://www.gpoaccess.gov/ecfr/ .

In the Federal Register of October 8, 2004 (69 FR 60320) (FRL-7308-2), EPA proposed to amend various sections of 40 CFR parts 9, 23, 163, and 177-180 pertaining to pesticide chemical tolerances to make them consistent with the changes to section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, contained in the Food Quality Protection Act of 1996 (FQPA). These proposed changes were primarily procedural in nature.

Two substantive comments were received on the proposal. EPA's response to these two comments is contained in Unit IV. In brief, neither of these comments objected to the changes proposed by EPA; rather, the commenters argued that EPA should have made further changes to the tolerance regulations. As explained in Unit IV., EPA believes that certain additional changes in this regulation are merited based on the comments.

Further, as explained in Unit III., EPA has identified several additional minor changes to the tolerance regulations that help to conform the existing tolerance regulations to the changes made by the FQPA.

Accordingly, other than the modifications identified in Units III. and IV., EPA is adopting in the final rule its revisions to the FFDCA tolerance regulations as proposed.

EPA proposed to amend 40 CFR 178.37(c) by removing language that specified that the effective date for an order responding to objections “must not be earlier than the 90th day after it is published unless the order contains findings as to the existence of emergency conditions that necessitate an earlier effective date.” See 40 CFR 178.37(c). The 90-day limitation on effectiveness was drawn directly from FFDCA section 408 prior to its amendment by the FQPA. Specifically, prior section 408(d)(5) stated that “[n]o order [following a hearing on a tolerance regulation] shall take effect prior to the ninetieth day after its publication, unless the Administrator finds that emergency conditions exist necessitating an earlier effective date, in which event the Administrator shall specify in the order of his findings as to such conditions.” 21 U.S.C. 346a(d)(5) (1994). That language, however, was dropped from section 408 upon its amendment by the FQPA. See 21 U.S.C. 346a(g)(2)(C). Similar language requiring a 90-day delay in effectiveness also appears in 40 CFR 179.105(b)(ii). EPA inadvertently missed this obsolete requirement in 40 CFR part 179 in issuing its proposal. Because removal of this language is consistent with the revised statute and the proposal, EPA is deleting the 90-day limitation on effectiveness from 40 CFR 179.105(b)(ii) as well as from 40 CFR 178.37(c).

The second change identified by EPA is to amend the authority citation for parts 9, 23, 178, and 179 to delete the reference to FFDCA section 409. Following the FQPA's consolidation of the authority over pesticide chemicals in section 408, these parts no longer rely on, or pertain to, FFDCA section 409.

The third change identified by EPA is to amend 40 CFR 180.7(h) to include among the options that the Administrator has in ruling on a petition to establish, modify, or revoke a tolerance the option of denying the petition. This option was explicitly added by the FQPA in section 408(d)(4)(A)(iii).

Finally, EPA has added a definition for the abbreviation “FFDCA” in part 180, and revised the definitions for “pesticide chemical” and “pesticide chemical residue” to adopt the modifications to these definitions enacted by the Antimicrobial Regulation Technical Correction Act of 1998, Public Law 105-324, 112 Stat. 3035, and to cross-reference the existing regulatory exceptions to these definitions in 40 CFR 180.4.

Edward C. Gray questioned whether the proposed amendments to 40 CFR 23.10 would clarify when a party needs to file a judicial challenge to a final order on a tolerance regulation or petition denial so that party would come within the 10-day window prescribed in 28 U.S.C. 2112 to address the “races to the courthouse” problem. Pertinent background information helps to explain Mr. Gray's concern.

Section 2112 of Title 28 of the United States Code addresses various procedural requirements pertaining to judicial review of agency orders including what United States Circuit Court of Appeals will hear a case when a challenge to an agency order or rule is filed in multiple circuit courts. Prior to the 1988 amendments to 28 U.S.C. 2112, section 2112 specified that if review of an agency order or rule was sought in more than one circuit, the circuit where a petition for review was first filed would hear the challenge. To avoid the “races to the courthouse” that were produced under this procedure, section 2112 was amended in 1988 to establish a random selection scheme to deal with filings in multiple circuits. S.Rep. No. 100-263, pp. 2-4, 1987 U.S.C.C.A.N. 3198, 3198-3201 (1987). Under amended section 2112, if an agency receives two or more petitions for review involving at least two circuits within 10 days of “issuance of an order,” the agency is required to notify the judicial panel on multi-district litigation of the fact that there have been multiple filings and provide the panel with the petitions. 28 U.S.C 2112(a)(3). The judicial panel is then required to select by “random” one of the circuits in which a petition was filed to hear all of the petitions.

Prior to the 1988 amendment to 28 U.S.C. 2112, various agencies, including EPA, promulgated rules in an attempt to mitigate “races to the courthouse” to challenge agency orders and rules. In 40 CFR part 23, EPA generally specified that the time and date of the entry or promulgation of an order or rule for the purpose of judicial review is 1 p.m. eastern time on the date that is 2 weeks after the date on which the order or rule is published in the Federal Register . Although these regulations did not eliminate races to the courthouse, they at least provided all parties with fair notice of when the starting gun would be fired. A specific provision in 40 CFR part 23 addressed orders issued under the FFDCA. See 40 CFR 23.10.

Upon amendment of section 2112 in 1988, EPA promulgated a new section to 40 CFR part 23 specifying the manner in which service of petitions should be filed with the Agency so that the EPA could comply with section 2112's new requirement that an agency, whose order or rule is challenged in more than one circuit court, file the multiple petitions for review with the judicial panel on multi-district litigation. In promulgating this new section of 40 CFR part 23, EPA made clear that, out of consideration of fairness to all parties, it intended to leave in place the existing sections of 40 CFR part 23 establishing a 2-week delay between publication of an order or regulation and the time when the order or regulation could be challenged. As EPA explained: “In other words, agency actions covered under these sections will continue to be deemed ‘final’ for purposes of judicial review (and the ten-day period for petitions for review to enter the random selection process will begin) at 1:00 p.m. fourteen days after the date of publication or date of signature.” (53 FR 29320) (August 3, 1988).

40 CFR 23.10 currently specifies that “the time and date of the entry of an order” issued under the FFDCA is 2 weeks after publication. EPA's proposed amendment to 40 CFR 23.10 principally involved conforming the statutory references in 40 CFR 23.10 to the FQPA's structural change of moving the judicial review provision in FFDCA section 408 from subsection (i) to subsection (h). EPA did not propose to change the “time and date of the entry of an order” language.

Mr. Gray contends that, because EPA's regulations speak in terms of “entry” of an order and the United States Code uses the word “issuance,” there could be confusion about when a petition for review must be filed to come within the 10-day window provided by 28 U.S.C. 2112. Mr. Gray suggests deleting 40 CFR 23.10 and amending the relevant portions of 40 CFR parts 178, 179, and 180 to make clear that an order or regulation is consider “issued” at the time of publication. As Mr. Gray explains, a court may determine that “issuance” occurs prior to “entry,” thus penalizing those filers who delay action based on 40 CFR 23.10. Alternatively, a party who files within 10 days of publication may have the filing ruled to be premature, and thus not within 28 U.S.C. 2112's 10-day window, if a court treats “issuance” and “entry” as equivalent under 40 CFR 23.10.

In light of Mr. Gray's comments, EPA has reviewed again the statutory provisions in section 408 pertaining to the timing of judicial review; the requirements in 28 U.S.C. 2112; EPA's existing regulations on judicial review of FFDCA actions in 40 CFR parts 178, 179, and 180, and on “races to the courthouse” in part 23; and EPA's proposals with regard to these regulations.

This review has revealed an oversight in EPA's proposal with regard to the timing of the filing for petitions for judicial review. Prior to the passage of the FQPA, section 408 specified that petitions for judicial review must be filed “within sixty days after entry of [an appropriate] order.” 21 U.S.C. 346a(i) (1994) (emphasis added). FQPA amended this language to specify in section 408(h) that a petition must be filed “within 60 days after publication of [an appropriate] order or regulation.” 21 U.S.C. 346a(h)(1) (emphasis added). EPA's existing regulations in parts 23, 178, and 179 pertaining to judicial review for section 408 orders reflect the focus on “entry,” as opposed to “publication,” in the pre-FQPA statute. See 40 CFR 178.65 and 179.125. In proposing to amend its FFDCA regulations, EPA overlooked this change. Correcting 40 CFR parts 178 and 179 to reflect the change to “publication” as the starting point for the running of the 60-day clock is easy enough. EPA proposed that these provisions retain existing language stating that various EPA orders shall be final and reviewable “as of the date of entry of the order, which shall be determined in accordance with §§ 23.10 and 23.11 of this chapter,” and that petitions for judicial review must be filed within 60 days of the “entry of the order.” In the final rule, EPA is amending 40 CFR 178.65 and 179.125 to state that the specified orders and regulations are final and reviewable “upon publication” and that petitions for review must be filed within 60 days from “publication.” The reference to 40 CFR part 23 is dropped because the statute now establishes publication as the date from which the 60-day clock for filing petitions for judicial review begins to run.

As to 40 CFR 23.10, the matter is only slightly more complicated. EPA believes two changes are appropriate here. First, to bring 40 CFR 23.10 into step with 28 U.S.C. 2112, the reference in 40 CFR 23.10 to “entry” of an order is being changed to “issuance” of an order. Second, 40 CFR 23.10 is amended to make clear that it is not defining the date of issuance of an order for the purposes of determining the time for filing a judicial review petition under FFDCA section 408(h) but rather for the purposes of determining the date upon which the 10-day clock established in 28 U.S.C. 2112 begins to run. Although there is some merit to Mr. Gray's suggestion to simply delete 40 CFR 23.10, EPA believes that it is clearer to retain 40 CFR 23.10 with the substitution of the term “issuance” for “entry.” Additionally, EPA is reluctant to reverse, in the context of action pertaining to a single statute, the prior Agency-wide decision to retain the additional 2-week period prior to the beginning of the 28 U.S.C. 2112 10-day clock. The revised 40 CFR 23.10 is amended to read:

On a related matter, EPA would note that its interpretation of section 408(h)(5) as mandating the exclusivity of the judicial review provision in section 408(h) as to tolerance-related issues was confirmed by a federal district court in New York v. EPA , No. 03 Civ. 7155 (GEL) (S.D.N.Y. July 29, 2004). In that case, the court held that parties wishing to challenge tolerances or tolerance reassessment decisions finding a tolerance to be safe must first exhaust the petition procedures in section 408(d), and the objection procedures in subsection 408(g), before seeking judicial review.

The Pesticide Policy Coalition, representing various food, agriculture, and pesticide manufacturer organizations, filed a detailed comment regarding pesticide residues in processed food. The PPC raised two issues with regard to EPA's tolerance regulations. First, the PPC is concerned that EPA's traditional practice of evaluating the need for and establishing tolerances for only a select group of dried commodities means that many dried commodities may have violative pesticide residues. Second, the PPC is concerned that EPA's proposal did not respond to the FQPA's removal of the “ready to eat” requirement from a provision addressing the legality of pesticide residues in processed foods. The PPC suggests that EPA's lack of action will result in dehydrated or concentrated products, such as juice concentrates, being found to be adulterated even though when re-hydrated they would be fully in compliance with the applicable regulations.

1. Background . Traditionally, pesticide chemical tolerances on foods have been set primarily on raw agricultural commodities rather than processed foods. In the 1954 law establishing the modern system of pesticide tolerances, such tolerances were only authorized as to raw agricultural commodities. See 21 U.S.C. 346a(b) (1994). Although later amendments to the FFDCA pertaining to food additives did establish a similar system that included authority for tolerances for pesticide residues in processed food, these amendments were crafted in such a manner that tolerances for pesticides in processed foods were rarely necessary in comparison to the need for raw food tolerances. See 21 U.S.C. 321(s) and 348 (1994). Specifically, in seeking to coordinate action under the pesticides provision (section 408) and the food additives provision (section 409), Congress provided in section 402 that:

Given the “flow-through” provision, the only processed foods that need tolerances are those processed foods in which pesticide residues concentrate during processing to levels higher than the tolerance in the raw food. An increase in the concentration of residues can occur during processing in a number of processing operations including dehydration or drying of a raw food and separation of a raw food into its component parts. These processing operations may lead to all or most of the pesticide residues in the overall raw food being primarily allocated to a single component of the food, as processed, with the effect that the concentration of residues in that component (on a weight to weight basis) exceeds the concentration in the original raw food. For example, when apples are processed into juice, two commodities are created: Apple juice and apple pomace, an animal feed. The concentration of pesticide residues in the juice or pomace may be higher on a weight to weight basis than in the whole apple if the pesticide residue is either highly soluble in water or the reverse because in those circumstances the residue tends to partition unequally between the juice and the pomace rather than being equally distributed between them.

EPA determines the need for processed food tolerances by requiring the submission of food processing studies in the registering of pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136 et seq. , and when establishing corresponding section 408 tolerances under the FFDCA. See 40 CFR 158.340. Food processing studies for a pesticide document the residue level of the pesticide in a treated raw commodity and the residue level in various processed commodities that can be derived from the raw commodity. In the Office of Prevention, Pesticides and Toxic Substances (OPPTS) Test Guidelines, EPA has provided guidance on which processed commodities, if any, food processing data should be submitted so that EPA can determine whether a processed food tolerance is needed. EPA, OPPTS Harmonized Test Guidelines, Series 860, Residue Chemistry , OPPTS Harmonized Guideline 860.1000 Table 1 (August 1996) (listing raw commodities and processed foods for which processing data is recommended). The criteria EPA has used for designating processed food on which processing data should be submitted relate both to the likelihood of an increase in concentration during processing and the significance of the processed commodity in the American diet. OPPTS Harmonized Guideline 860.1000(m).

When in 1996 Congress amended the FFDCA to, among other things, consolidate pesticide tolerance authority in section 408, it moved the flow-through provision to section 408 with minor changes. One of these minor changes was the dropping of the requirement in the flow-through provision that specified that residues in processed foods be judged against the raw food tolerance only when the processed food is at the “ready to eat” stage.

Although the legislative history regarding this change is sparse, EPA believes the reason the change was made was due to concerns with the phrase raised by EPA following the difficulties it had in applying the ready-to-eat requirement in the context of several legal and administrative challenges to various processed food tolerances or to uses which allegedly needed such tolerances. One of the issues that arose in this dispute was EPA's interpretation of the “ready to eat” requirement in the flow-through provision. When EPA looked into the questions surrounding its implementation of the ready-to-eat requirement, it discovered that, due to the wide variety in consumers' diets, it was difficult to define what foods are ready to eat, and for foods that are not ready to eat, the stage when they become ready to eat. See 60 FR 31300, 31306 (June 14, 1995) (“EPA envisions that this definition [of ready-to-eat food] may be difficult to apply in many instances.”). Given the problems with the ready-to-eat concept it is not surprising that EPA sought and Congress agreed to dropping the phrase from the statute.

2. Dried foods . The PPC expressed concern that EPA only considers whether processed food tolerances are necessary in a few dried commodities (e.g., raisins) and does not examine whether pesticide residues may concentrate in other dried commodities. According to the PPC, “[t]oday there are many more forms of dried or otherwise processed foods in commerce than was the case forty or fifty years ago when the tolerance establishment process was developed (e.g., banana chips, sun-dried tomatoes, freeze-dried berries).” EPA has traditionally only focused its tolerance-setting resources on those processed foods that are consumed at a significant enough level that they could meaningfully affect a risk assessment. The PPC, however, notes that EPA's approach may leave food processors with a “regulatory problem” as to certain minor foods in that routine drying of those foods may result in a processed commodity that bears illegal residues even though the raw food prior to drying was well within the applicable pesticide tolerance. The PPC argues that “[a]s a general matter, the drying or other routine processing of a compliant [raw agricultural commodity] should not be regarded as the adulteration of that [raw agricultural commodity] to yield unlawful processed food.”

The PPC proposed that EPA issue a tolerance regulation applying to all processed foods that directs the tolerance for any processed food not having a specific tolerance shall be the tolerance level of the applicable raw food tolerance adjusted to “take account of the concentration of the product caused by the drying or other processing of the [raw agricultural commodity].” The PPC argues that such a tolerance regulation is “risk-neutral” because the amount of pesticide consumed as a total amount would be the same whether a food is consumed in its raw or dried form. Additionally, the PPC notes that this approach has been adopted by the European Union.

Although EPA understands that the PPC is concerned about pesticide residues in processed foods, the dried food issue in the PPC's comments goes beyond the scope of the proposed rule. The proposed rule focused entirely on changes to EPA's regulations in response to the passage of the FQPA or other routine changes (e.g., updating addresses). It does amend the EPA regulation addressing the flow-through provision but only with regard to the changes that were accomplished by the FQPA. Similarly, EPA discussed how it is handling the interpretation of a few tolerance regulations that got caught between a change in EPA policy on “ready-to-eat” foods and the dropping of that requirement by the FQPA. The question of whether EPA has adequate tolerance regulations in place to deal with dried foods, however, is a question that exists independent of any changes in the law effectuated by the FQPA. Put another way, the potential regulatory problem identified by the PPC as to dried foods would be present even if the FQPA had never been passed. Accordingly, EPA will not be adopting the PPC's proposed regulation in this final rule. If the PPC continues to be concerned about the need for additional processed food tolerances for dried commodities, EPA is committed to working with them to explore options for resolution of their concerns.

EPA would note, however, that in response to the PPC's concern about how the deletion of the “ready to eat” language from the statute affects dried foods, EPA is making a change in the rule to address that issue, as discussed in the following section.

3. Juice concentrates and similar products . The PPC also is concerned that EPA has not addressed the legality of juice concentrates and similar products in light of the removal from the flow-through provision of the “ready to eat” requirement. The PPC argues that the removal of the “ready to eat” requirement may render these commodities adulterated even if they are produced from below-tolerance raw foods and will have below-tolerance residues when reconstituted and consumed.

As explained above, EPA believes that the “ready to eat” requirement was removed based on EPA's concerns that this vague language complicated both the tolerance establishment program and the enforcement of tolerances in the field. There is no indication that Congress removed the requirement because it thought it was important that concentrated juices be analyzed “as is” to determine whether or not they comply with tolerances applying to raw fruit and fruit juice in the form they are consumed. Obviously, examining whether concentrated apple juice meets a tolerance applicable to apple juice as consumed makes little sense from a risk perspective. From an administrative standpoint, requiring tolerances for concentrated juices or other similar foods makes equally little sense because separate tolerances might need to be set on a food processor by food processor basis taking into account the degree of concentration used by individual processors in preparing their food products.

Traditionally, FDA has followed the commonsense approach of sampling concentrated apple juice for pesticide residues by either diluting the juice to its normal moisture content or compensating for the lack of normal moisture content in calculating the pesticide concentration in the juice. FDA's approach to sampling concentrated apple juice is spelled out in the section of the Pesticide Analytical Manual, Volume I, addressing the preparation of test samples of food for laboratory analysis of pesticide residues. See FDA, Pesticide Analytical Manual, Volume I, Table 102-b. The Pesticide Analytical Manual builds upon EPA regulations that provide general guidance on how some foods are to be sampled. See 40 CFR 180.1(j). Both EPA's regulations and the FDA guidance are directed at designing food sampling procedures to give a realistic measure of residues to which people are likely to be exposed (e.g., removing shells from nuts and stems from melons and re-hydrating juice concentrates before analyzing) and make sampling practicable for FDA personnel (e.g., analyzing not-ready-to-eat processed food used as an ingredient in other foods on an “as is” basis).

Accordingly, in response to the PPC's comment, EPA is adding an additional provision to its regulations in 40 CFR 180.1(j) regarding food sample preparation that tracks FDA's approach to concentrated products as set forth in the Pesticide Analytical Manual.

This rule makes several changes in the EPA regulations governing pesticide tolerances and exemptions from tolerance. The amendments are procedural in nature and, for the most part, correct the CFR so that it is consistent with FFDCA section 408, as amended by the FQPA, and EPA's ongoing implementation of FFDCA. Other than making EPA regulations more accurate, these amendments are not expected to have any impact on regulated parties or the public. Accordingly, these amendments are not subject to review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993), as a significant regulatory action.

Because this rule has been exempted from review under Executive Order 12866 due to its lack of significance, this rule is not subject to Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001). This rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note).

Since, as detailed above, these amendments will have no detrimental impact on regulated parties or the public, EPA certifies under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq .) that the amendments will not have a significant impact on a substantial number of small entities.

In addition, the Agency has determined that this action will not have a substantial direct effect on 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, entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This rule is directed at pesticide manufacturers and others who seek to establish, modify, or revoke pesticide tolerances and exemptions, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of the FFDCA.

For these same reasons, the Agency has determined that this rule does not have any “tribal implications” as described in Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000). Executive Order 13175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.” This rule will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule.

The Congressional Review Act, 5 U.S.C. 801 et seq. , 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 the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

The New Manchester-Grant Magisterial District of Hancock County was designated as an SO 2 nonattainment area on March 3, 1978 (43 FR 8962), as amended on September 12, 1978 (43 FR 40502). On July 24, 1979 (44 FR 43298), and August 14, 1980 (45 FR 54042), EPA proposed and finalized, respectively, a revision to the West Virginia SIP for SO 2 . The revision contained a control strategy and attainment demonstration for the New Manchester-Grant area.

On February 5, 1990, EPA issued a SIP call to West Virginia which, among other things, required the submission of a SIP revision to attain and maintain the NAAQS for SO 2 in all of Hancock County, including the New Manchester-Grant nonattainment area. The SIP call was issued because monitored violations of the NAAQS indicated that the previously approved SIP for the area was inadequate. On November 15, 1990, amendments to the Act were promulgated which provided that any area designated with respect to the NAAQS, as in effect immediately before November 15, 1990, shall retain that designation by operation of law. Therefore, the New Manchester-Grant Magisterial District, in Hancock County, West Virginia remained designated as nonattainment for SO 2 by operation of law.

On February 17, 1995 and May 3, 1996, West Virginia submitted a formal SIP revision for the New Manchester-Grant Magisterial District nonattainment area. The SIP revision included individual consent orders, dated January 9, 1995, between the West Virginia Department of Environmental Protection (WVDEP) and the Quaker State Refinery, and the WVDEP and Weirton Steel Corporation. These consent orders established SO 2 emission limits for numerous emission points at both facilities. The SIP revision also included a demonstration of attainment in the New Manchester-Grant nonattainment area. EPA determined that the submittal was administratively and technically complete and, on November 27, 1996 (61 FR 60191), EPA approved this SIP revision for the New Manchester-Grant Magisterial District.

On December 29, 2003, West Virginia submitted an attainment demonstration SIP revision for the City of Weirton, including the Clay and Butler Magisterial Districts, in Hancock County, West Virginia. That revision included a revised consent order, dated August 4, 2003, between the WVDEP and the Weirton Steel Corporation, establishing enforceable emission limits for numerous emission points at the facility. On May 5, 2004, (69 FR 24986), EPA approved this revised consent order as part of the attainment demonstration SIP revision for the City of Weirton including the Clay and Butler Magisterial Districts area. It should be noted that this revised consent order did not allow for any increases in SO 2 emissions above those modeled for Weirton Steel Corporation in the attainment demonstration SIP revision for the New Manchester-Grant Magisterial District approved by EPA on November 27, 1996 (61 FR 60191).

On July 27, 2004, the State of West Virginia submitted a redesignation request for the New Manchester-Grant Magisterial District, Hancock County, West Virginia SO 2 nonattainment area. The State's July 27, 2004 submittal also included a maintenance plan for approval by EPA as a SIP revision. Under the Act, EPA may redesignate nonattainment areas to attainment if sufficient data are available to warrant such changes and the area meets the criteria contained in section 107(d)(3)(E). These criteria include full approval of a maintenance plan which meets the requirements of section 175A of the Act.

Section 107(d)(3)(E) of the CAA specifies five requirements that must be met to redesignate an area to attainment. They are as follows:

A. The area must meet the applicable NAAQS.

B. The area must have a fully approved SIP under section 110(k).

C. The area must show improvement in air quality due to permanent and enforceable reductions in emissions.

D. The area must meet all relevant requirements under section 110 and part D of the Act.

E. The area must have a fully approved maintenance plan pursuant to section 175A.

The EPA has reviewed the redesignation request submitted by the State of West Virginia for the New Manchester-Grant Magisterial District SO 2 nonattainment area, and finds that the request meets the five requirements of section 107(d)(3)(E).

A review of the monitored ambient air quality data indicates that the NAAQS have been achieved in the New Manchester-Grant Magisterial District SO 2 nonattainment area. Quality assured/quality controlled data for the most recent three whole calendar years (2001-2003) is included in West Virginia's July 27, 2004 submittal. This data was collected and quality assured in accordance with 40 CFR part 58, and has been entered into EPA's Air Quality System (AQS) of the Aerometric Information Retrieval System (AIRS). This data indicates that the ambient air quality attains the annual and 24-hour health-based primary standards and the 3-hour secondary standard. The primary standards are an annual mean of 0.030 parts per million (ppm), not to be exceeded in a calendar year, and a 24-hour average of 0.14 ppm, not to be exceeded more than once per calendar year. The secondary standard is a 3-hour average of 0.5 ppm, not to be exceeded more than once per calendar year. West Virginia's quality-assured SO 2 ambient air monitoring data indicates that the New Manchester-Grant SO 2 area has attained the NAAQS for SO 2 . No violations of the SO 2 standards have occurred for a period of time nearing ten years. A table summarizing the monitoring data that has been collected in the New Manchester-Grant area by West Virginia since 1992 can be found in the formal submittal and that submittal is available for review in the docket prepared in support of this rulemaking action. There are currently four monitors operating within the nonattainment area: Chester, Lawrenceville, New Manchester, and New Cumberland. All of the monitors meet the requirements of 40 CFR parts 53 and 58, and are representative of the highest ambient concentrations.

On November 27, 1996 (61 FR 60191), EPA fully approved a SIP revision for the New Manchester-Grant Magisterial District SO 2 nonattainment area consisting of an attainment demonstration and enforceable consent orders for two sources in Hancock County, West Virginia. This attainment demonstration consisted of a dispersion modeling analysis based upon the enforceable SO 2 emission limits imposed on the two contributing sources in enforceable consent orders, in addition to a representative background. This modeling analysis demonstrated that the maximum allowable SO 2 emission limitations imposed on the contributing sources provide for attainment and maintenance of the NAAQS for SO 2 .

The Federal requirements for new source review (NSR) in nonattainment areas are contained in section 172(c)(5) of the CAA. EPA guidance indicates the requirements of the part D NSR program will be replaced by the Prevention of Significant Deterioration (PSD) program when an area has reached attainment and been redesignated, provided there are assurances that PSD will become fully effective upon redesignation. Regulations for the PSD of air quality were approved into the West Virginia SIP on April 11, 1986 (51 FR 12518), and will become fully effective in the New Manchester-Grant area immediately upon the effective date of redesignation.

The improvement in air quality in the New Manchester-Grant Magisterial District SO 2 nonattainment area is due to permanent and enforceable emission reductions. The primary sources of SO 2 in the New Manchester area are the steel manufacturing and petroleum processing facilities. Enforceable SO 2 emission limitations and other control measures (including permanent shutdowns, fuel switching and emission caps) imposed by the State of West Virginia on contributing sources have substantially lowered ambient SO 2 levels and have brought the area into attainment. As previously stated, on November 27, 1996 (61 FR 60191), EPA approved a SIP revision for the New Manchester-Grant Magisterial District consisting of a modeled attainment demonstration and consent orders between West Virginia and Quaker State Refinery and Weirton Steel Corporation, dated January 9, 1995, limiting each facility's SO 2 emissions and providing attainment of the SO 2 NAAQS in the area.

If a new source applies to construct or an existing source applies for a modification after EPA redesignates the area to attainment, the permitting provisions of West Virginia's approved SIP, including those for Prevention of Significant Deterioration (PSD), require that emission limits and control measures be imposed to protect the NAAQS and all applicable PSD increments.

The New Manchester-Grant Magisterial District nonattainment area has met all the applicable and necessary requirements of section 110 and subpart 1, of part D of the CAA. As mentioned previously, the modeled attainment demonstration for the New Manchester-Grant area and emission limitations established by permits and consent orders were fully approved by EPA as a SIP revision for the area, and West Virginia's PSD and NSR programs were approved by EPA. EPA approval of a transportation conformity SIP revision for this area is not required for redesignation because the nature of the area's previous SO 2 nonattainment problem was not attributable to the mobile or transportation sector. The attainment demonstration SIP revision approved by EPA on November 27, 1996 (61 FR 60191) for the area contained a detailed emissions inventory of all sources of SO 2 . That inventory was approved by EPA as part of the SIP revision. Sulfur dioxide emissions from area and mobile sources are not significant contributors to ambient SO 2 levels in the area, rather the overwhelming contributing emissions are from stationary sources.

Section 107(d)(3)(E) of the CAA requires that a maintenance plan be fully approved by EPA before an area can be redesignated to attainment. The maintenance plan is to be submitted and approved as a SIP revision under section 110 of the CAA. Section 175A of the CAA sets forth the necessary elements of a maintenance plan needed for areas seeking redesignation from nonattainment to attainment. A maintenance plan must contain the following elements:

1. An emissions inventory reflective of SO 2 emissions in the monitored attainment years;

2. A maintenance demonstration which is expected to provide adequate assurance of maintenance over the initial 10-year period;

3. A commitment to continue monitoring in the area;

4. A method for verifying continued attainment; and

5. A contingency plan with specific indicators or triggers for implementation of the plan.

The maintenance plan for the New Manchester-Grant Magisterial District area is being submitted to EPA for approval as a SIP revision concurrently with the request for redesignation. The maintenance plan shows that the NAAQS for SO 2 will be maintained for at least 10 years after redesignation. The maintenance plan must also include contingency measures to address any violation of the NAAQS. Eight years after the redesignation, West Virginia must submit a revised maintenance plan which demonstrates attainment for the 10 years following the initial 10-year period.

The maintenance plan submitted indicates that the attainment inventory is the emissions inventory used to perform the modeling demonstration of attainment and provides updates to that inventory for 2001 for sources in the New Manchester-Grant nonattainment area. Any future increases in emissions and/or significant changes to the stack configuration parameters from those modeled in the attainment demonstration due to new or modifying stationary sources would be subject to NSR requirements, including a demonstration that the NAAQS is protected.

The modeling demonstration of attainment submitted by West Virginia, which was fully approved by EPA on November 27, 1996 (61 FR 60191), showed attainment of each of the SO 2 NAAQS. Modeling results submitted indicate future NAAQS maintenance for the area. No modifications or installations have been made that detrimentally affect the modeling results. The major source changes in the area consist of permanent shutdowns, which will reinforce the continued attainment in the area. A shift in employment from manufacturing to commercial business, and the declining steel industry and ancillary industries in the area indicate a continued decrease in SO 2 emissions from stationary sources. The requirement for PSD review and permitting for any future major source construction or modification and the permanent and enforceable control measures were provided in the maintenance plan. Subsequent to redesignation, any major source construction or modification will be subject to West Virginia's PSD requirements, including a modeling demonstration to ensure maintenance of the NAAQS. A projected decrease in population along with a decrease in occupied households for the years 1990-2025 indicates that no new growth is anticipated to impact emissions in the area. The State of West Virginia is confident that the area will maintain the NAAQS for SO 2 for the next ten years.

West Virginia has indicated in the submitted maintenance plan that it will continue to monitor SO 2 in the New Manchester-Grant area in accordance with 40 CFR 53 and 58 to verify continued attainment with the NAAQS for SO 2 .

West Virginia has committed in the maintenance plan to review the monitored data annually, and to review the local monitored meteorological data. The WVDEP will also assess compliance of local targeted facilities to verify continued attainment of the area. The State will review the annual emissions inventory for the New Manchester-Grant area at a minimum of once every three years.

West Virginia will rely on ambient air monitoring data in the New Manchester-Grant area to track compliance with the NAAQS for SO 2 and to determine the need to implement contingency measures. In the event that an exceedance of the NAAQS for SO 2 occurs, the State will expeditiously investigate and determine the source(s) that caused the exceedance and enforce any SIP or permit limit that is violated. In the event that all sources are found to be in compliance with applicable SIP and permit emission limits, the State shall perform the necessary analysis to determine the cause(s) of the exceedance, and determine what additional control measures are necessary to impose on the area's stationary sources to continue to maintain attainment of the NAAQS for SO 2 . The State shall inform any affected stationary source(s) of SO 2 of the potential need for additional control measures. If there is a violation of the NAAQS for SO 2 , the State will notify the stationary source(s) that the potential exists for a NAAQS violation. Within six months, the source(s) must submit a detailed plan of action specifying additional control measures to be implemented no later than 18 months after the notification. The additional control measures will be submitted to EPA for approval and incorporation into the SIP.

If an exceedance of an SO 2 NAAQS occurs, the State will notify the subject companies that the potential exists for a NAAQS violation. The subject companies must then prepare a detailed plan of action containing control measures for implementation in the event of a violation. This plan of action shall include an implementation time line and shall be submitted to the State within six months of notification that the potential exists for a violation. The final milestone of this action plan and time line will state that the contingency measures will be implemented no later than 18 months after the State informs the subject companies that a violation of the standards has occurred. Any additional control measures will be submitted to EPA for approval and incorporation into the SIP.

EPA is approving West Virginia's request to redesignate the New Manchester-Grant Magisterial District SO 2 nonattainment area to attainment because the State has complied with the requirements of section 107(d)(3)(E) of the CAA. In addition, EPA is approving West Virginia's maintenance plan for the New Manchester-Grant Magisterial District as a SIP revision because it meets the requirements of section 175A.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register , EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on August 8, 2005 without further notice unless EPA receives adverse comment by July 8, 2005. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 8, 2005. Filing a petition for reconsideration by the Administrator of this final rule to redesignate the New Manchester-Grant Magisterial District to attainment for SO 2 and approve the maintenance plan for the area, 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).)

The EPA Region 6 office is publishing this direct final notice of deletion of the Delatte Metals Superfund Site from the NPL.

The EPA identifies sites that appear to present a significant risk to public health or the environment and maintains the NPL as the list of those sites. As described in § 300.425(e)(3) of the NCP, sites deleted from the NPL remain eligible for remedial actions if conditions at a deleted site warrant such action.

Because EPA considers this action to be noncontroversial and routine, EPA is taking it without prior publication of a notice of intent to delete. This action will be effective August 8, 2005 unless EPA receives adverse comments by July 8, 2005 on this document. If adverse comments are received within the 30-day public comment period on this document, EPA will publish a timely withdrawal of this direct final notice of deletion before the effective date of the deletion and the deletion will not take effect. The EPA will, as appropriate, prepare a response to comments and continue with the deletion process on the basis of the notice of intent to delete and the comments already received. There will be no additional opportunity to comment.

Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses procedures that EPA is using for this action. Section IV discusses the Delatte Metals Superfund Site and demonstrates how it meets the deletion criteria. Section V discusses EPA's action to delete the Site from the NPL unless adverse comments are received during the public comment period.

Section 300.425(e) of the NCP provides that releases may be deleted from the NPL where no further response is appropriate. In making a determination to delete a release from the NPL, EPA shall consider, in consultation with the State, whether any of the following criteria have been met:

i. Responsible parties or other persons have implemented all appropriate response actions required;

ii. All appropriate Fund-financed (Hazardous Substance Superfund Response Trust Fund) response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or,

iii. The remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate.

Even if a site is deleted from the NPL, where hazardous substances, pollutants, or contaminants remain at the deleted site above levels that allow for unlimited use and unrestricted exposure, CERCLA section 121(c), 42 U.S.C. 9621(c) requires that a subsequent review of the site be conducted at least every five years after the initiation of the remedial action at the deleted site to ensure that the action remains protective of public health and the environment. If new information becomes available which indicates a need for further action, EPA may initiate remedial actions. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system.

The following procedures apply to deletion of the Site:

(1) The EPA consulted with LDEQ on the deletion of the Site from the NPL prior to developing this direct final notice of deletion.

(2) LDEQ concurred with deletion of the Site from the NPL.

(3) Concurrently with the publication of this direct final notice of deletion, a notice of the availability of the parallel notice of intent to delete published today in the “Proposed Rules” section of the Federal Register is being published in a major local newspaper of general circulation at or near the Site and is being distributed to appropriate federal, state, and local government officials and other interested parties; the newspaper notice announces the 30-day public comment period concerning the notice of intent to delete the Site from the NPL.

(4) The EPA placed copies of documents supporting the deletion in the Site information repositories identified above.

(5) If adverse comments are received within the 30-day public comment period on this document, EPA will publish a timely notice of withdrawal of this direct final notice of deletion before its effective date and will prepare a response to comments and continue with the deletion process on the basis of the notice of intent to delete and the comments already received.

Deletion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions, should future conditions warrant such actions.

The following information provides EPA's rationale for deleting the Site from the NPL.

The Delatte Metals Site includes the Delatte Metals, Inc., (DMI) facility, the abandoned North Ponchatoula Battery facility and parts of the offsite areas. The Site is located at 19113 Weinberger Road in Tangipahoa Parish about 2.5 miles southeast of Ponchatoula, Louisiana with an estimated 645 persons living within one-mile. The combined area of the two facilities is approximately 18.9 acres. The approximate total area of the Site, encompassing both facilities and offsite areas, is 56.8 acres.

During the 1960s, under the name Delatte and Fuscia Battery Company, battery recycling and smelting operations were conducted in the DMI facility area of the Site. In the early 1980s, the facility name was changed to Delatte Metals, Inc. The operations performed at the facility included spent lead-acid battery demolition to remove associated lead plates and the subsequent lead smelting of the lead plates to produce lead ingots. The typical process at the facility involved sawing off the tops of the batteries and removing the lead plates in the battery saw building. After opening the battery cases, the battery acid was drained into a sump. Before the mid-1980s, the acid was pumped from the sump to an unlined pond located on the north side of the Site. After the closure of the acid pond, the acid was pumped through an underground pipe to the acid tank farm. The spent acid was then shipped offsite for recycling. Similar operations took place at the North Ponchatoula Battery (NPB) facility.

From the mid-1980s into the 1990s, the Louisiana Department of Environmental Quality (LDEQ) worked with both facilities in attempts to correct deficiencies in environmental practices. In September 1997, however, Louisiana Governor Mike Foster formally requested that the Site be addressed by EPA and listed on the Superfund National Priorities List (NPL). A Hazard Ranking System documentation package was subsequently prepared and the Site was proposed for addition to the NPL in July 1998. On January 19, 1999, EPA formally announced the addition of the Site to the NPL in the Federal Register .

On July 24, 1998, EPA signed an Action Memorandum for a time-critical removal action at the Site. The action addressed occupied residential properties as well as stabilization, removal, and offsite disposal of crushed battery casings, slag piles, settling basin solids, waste in tote bags and waste piles located inside the battery saw building. Onsite activities began on September 9, 1998, with the establishment of a command post and associated utilities, delivery of heavy equipment, construction of the loading truck staging area, and the identification of truck routes. Transportation and disposal of contaminated battery chips, battery mud and debris began on October 12, 1998. Removal activities were completed in less than six months and resulted in the removal of approximately 30,000 tons of crushed battery casings, smelter slag, smelter ash, and other source material; 68 tons of grossly contaminated smelter equipment; 28 drums of lead contaminated oil and oil debris; approximately 6,617 gallons of sulfuric acid; and, approximately 650 tons of scrap metal. In addition, contaminated sediment in a roadside ditch along Weinberger Road was excavated to facilitate the installation of a public water supply pipe, and contaminated soil found in two residential properties was excavated.

During 1999 and 2000, EPA conducted field sampling and investigation activities at the Site including collection and analyses of soil, sediment, surface water, ground water, and animal tissue samples. The Remedial Investigation (RI) and Feasibility Study (FS) reports identified the types, quantities, and locations of contaminants found in these samples and developed ways to address the contamination problems. A treatability study report was also completed to assess the applicability of different remedial technologies. In addition, a Human Health Risk Assessment and an Ecological Risk Assessment were performed to determine the current and future effects of contaminants on human health and the environment.

Lead was identified as the one contaminant of concern that posed the greatest potential risk to human health and ecological receptors as well as natural habitats. Lead was detected in all onsite surface and shallow subsurface soil sampling locations; in several surface and shallow subsurface offsite soil sampling locations; in sediment and surface water samples collected from various offsite ecological habitats and Selsers Creek; and, in ground water samples from the first water-bearing zone, which is a very acidic environment and tends to flow towards Selsers Creek.

The Proposed Plan was presented to the community during a public meeting held on July 31, 2000. After review and response to comments received during the 30-day comment period, the Record of Decision was signed on September 26, 2000. The Remedial Action Objectives (RAOs) for the Site were to:

• Treat or remove the principal threat wastes at the Site;

• Reduce or eliminate the direct contact threats associated with contaminated soil; and,

• Minimize or eliminate contaminant migration to the ground water and surface waters to levels that ensure beneficial reuse of these resources.

In order to achieve these RAOs, certain numerical cleanup levels would have to be maintained or attained in the various environmental media. These were:

• Soil: Industrial: 1,700 milligrams per kilogram (mg/kg) lead; Residential: 500 mg/kg lead; and, Ecological: 80 mg/kg lead.

• Sediment: Industrial: Not Applicable (n/a); Residential: n/a; and, Ecological: 100 mg/kg lead.

• Ground Water: Industrial: n/a; Residential: 15 micrograms per liter(μg/l) lead; and, Ecological: n/a.

• Surface Water: Industrial: n/a; Residential: n/a; and, Ecological: 0.6μg/l lead.

• Air: Industrial: n/a; Residential: n/a; and, Ecological: n/a.

Lead was the most abundant and widespread heavy metal at the Site and was co-located at the same locations where other heavy metals were detected. Since the source of the contamination was mainly in surface and subsurface soils, the selected remedy was designed primarily to address the soil contamination. (The reference to soil contamination includes sediment.) It was expected that when the soil cleanup levels for lead were achieved, the other forms of cleanup would also be achieved: Sediment to 80 mg/kg lead for ecological; ground water to 15 μg/l lead for residential; and, surface water 0.6 μg/l lead for ecological. Because the other metals were found at the same locations as lead, it was expected that they would be addressed also.

Therefore, the measurement of success at accomplishing the RAOs will be based on the media specific numerical cleanup levels that will be achieved in the various designated areas of soil contamination. These are:

• Industrial: 1,700 mg/kg lead in soil;

• Residential: 500 mg/kg lead in soil; and,

• Ecological: 80 mg/kg lead in soil.

This ROD addressed the contamination in the soil, sediment, surface water and ground water at the Site by:

• Immobilization to address the principal threat wastes in the soil (thus eliminating the source of contamination for sediment, surface water, ground water);

• Offsite disposal to transport immobilized wastes to a disposal facility;

• Permeable treatment walls to neutralize the acidity of the shallow ground water and limit the migration of dissolved metals;

• Institutional controls (ICs) in the form of deed notices to inform the public of Site conditions; and,

• Ground water monitoring to ensure the effectiveness of the selected remedy.

The EPA issued a Remedial Action (RA) work assignment to the contractor on September 26, 2002, with onsite RA construction beginning on November 19, 2002.

On January 8, 2003, EPA revised the cleanup criteria based on additional soil sample data collected during the RA. The purpose of this sampling was to better delineate areas designated for remediation. These data allowed areas to be more easily separated into future land use categories of ecological, residential, or industrial and then remediated based on the cleanup criteria for that particular use. Additional ecological areas not representative of drainage areas were reassessed using revised toxicity values resulting in a 200 mg/kg cleanup level for these areas. The following revisions were implemented.

1. For ecological excavation areas identified during the RI and RD, the soil remediation level was maintained at 80 mg/kg.

2. For additional ecological areas that were identified during the RA, soil was remediated to or below 200 mg/kg (around grids H-1, I-1, and O-1).

3. Sample point RA-16, near Grid O-1, with a concentration of 227 mg/kg was considered as effectively meeting the 200 mg/kg target. This determination was based on the isolation of the sample location, the existence of sample points with lower concentrations surrounding the area, and the conservative assumptions that were used to determine risk.

4. No excavation was to be performed within the dripline of the large magnolia tree in Grid I-1. The landowner had requested that the large magnolia tree not be removed. After reviewing additional sampling data from the area, removal of soil within the dripline of the magnolia was not necessary.

5. Onsite soils were to be excavated to 1,700 mg/kg both horizontally and vertically.

6. Offsite soils (except those identified in item 2) were to be excavated using the following criteria:

• 0 to 6 inches below ground surface (bgs)—80 mg/kg lead in soil (ecological standard);

• 6 to 24 inches bgs—500 mg/kg lead in soil (residential standard); and,

• > 24 inches bgs—1,700 mg/kg lead in soil (industrial standard).

On April 9, 2003, EPA revised the cleanup criteria for M-, P-, and Q-excavation grids since the areas were considered residential rather than ecological. These grids were located in established ecological environments. Because of intrusive remediation activities that eliminated these ecological environments and the possible reuse as residential, these areas were redefined as residential and thus required a residential cleanup value. Excavation within the tributary still used the ecological criteria. The revised criteria listed below were used.

• For soils 0 to 24 inches bgs, the cleanup level was 500 mg/kg lead in soil (residential standard).

• For soils greater than 24 inches bgs, the cleanup level was 1,700 mg/kg lead in soil.

On February 18, 2003, staff from the EPA, the U.S. Fish and Wildlife Service, the LDEQ, and Tetra Tech met to discuss the remediation of the cypress swamp. On May 15, 2003, EPA revised the cleanup criteria for Cypress Swamp. Weighing the detrimental effects of habitat destruction versus estimated risk in the Cypress Swamp area indicated that limiting remedial efforts to the removal of highly-contaminated sediments will serve to adequately protect current and future human health and the environment. Therefore, the sediments with concentrations greater than 500 mg/kg lead were removed to a depth of 6 inches (after removal of overlying detrital material) and back-filled with 6 inches of clean fill material. This removed a large portion of the contamination and provided a barrier to future ecological exposure to remaining contamination, while maintaining the hydrology and habitat value of the area.

Excavation of the soils and waste pits began in December 2002 and was completed in July 2003. Following soil excavation, surface restoration activities were conducted for onsite and offsite areas. Installation of the permeable reactive barrier began in February 2003 and was completed in June 2003.

The EPA and the State conducted the RA as planned and completed a pre-final inspection on July 30, 2003. During the inspection, several punch list items were identified for completion; however, RA construction activities had been completed according to design specifications. The preliminary close out report was signed on September 22, 2003, initiating the operational and functional period. The final inspection was conducted on July 21, 2004. All punch list items identified during the pre-final inspection were completed, and no other outstanding items existed. The final Remedial Action report was accepted on September 22, 2004, initiating the Operation and Maintenance phase under the lead of the Louisiana Department of Environmental Quality (LDEQ). The final close out report was signed on March 7, 2005, signifying that all response actions at the Site were successful and no further Superfund response is required to protect human health and the environment.

On September 22, 2004, LDEQ filed the ICs for the onsite properties. The ICs are conveyance notices which are filed with the Tangipahoa Parish Clerk of Court Office and notify the public that the properties have contaminant levels present that are acceptable for only industrial/commercial use of the property as described in LDEQ's Risk Evaluation/Corrective Action Program (RECAP), June 20, 2000, Section 2.9. In accordance with LAC 33:I., Chapter 13, if land use changes from industrial to non-industrial, the property owner(s) shall notify the LDEQ within 30 days so that the Site shall be reevaluated to determine if conditions are appropriate for the proposed land use. Should the property owner provide adequate proof that the property no longer contains waste restricting use and the secretary (State), or designee, grants approval, the notice may be removed from the mortgage and conveyance records of the parish in which the property is located. If the secretary, or designee, objects to the removal, or fails to make a final determination within ninety days, the property owner may petition the court in the parish where the property is located for removal of the notice and after a contradictory hearing between the landowner, the clerk of court, and the secretary or his designee, the court may grant such relief upon adequate proof by the petitioner that the property no longer contains the waste which may pose a potential threat to health or to the environment.

The remedial action set forth in the ROD was consistent with, and complied with, the Superfund Amendments and Reauthorization Act (SARA) of 1986, P.L. 99-499, which substantially amended CERCLA, 42 U.S.C. 9601 et seq. , and the NCP. SARA codified many of the existing requirements under the then existing NCP (1985), as well as adding, among other things, a new section 121 to CERCLA, which provided direction for selection of remedial actions compliant with applicable or relevant and appropriate Federal, State, and Local laws regulations and requirements, 42 U.S.C. 9621.

The EPA contract for the remedial action contained provisions for performing sampling during all remedial activities in order to verify that remedial objectives were met, to ensure quality control and assurance for all excavation and construction activity, and to ensure protection and safety of the public, the environment, and the onsite worker. Nonhazardous wastes were sent to the BFI Colonial Landfill in Sorrento, Louisiana, and hazardous wastes were transported by a hazardous waste transporter to the Clean Harbors Landfill in Waynoka, Oklahoma.

Air: Meteorological conditions were monitored on a continuous basis. Real-time and integrated air monitoring was conducted near excavations areas, soil stockpiles, the soil treatment work area, and various work zones onsite, as well as along the Site perimeter. Air monitoring ensured that there was no onsite exposure and no offsite migration of Site contaminants.

Excavation: The surveyor established the Site boundaries, clearing and grubbing limits, and onsite and offsite excavation limits. Field sampling and lab confirmation sampling were done for all excavation areas. Excavation bottoms with sample results that exceeded the cleanup criteria were then excavated an additional 1 foot in depth by 10 feet by 10 feet horizontally, and the area was resampled to ensure that the prescribed cleanup level had been met. This process was iterated until the cleanup criteria was met.

Backfill: All imported backfill material was sampled and analyzed to ensure that priority pollutant metals were within allowable limits before being accepted.

Solidification/Stabilization: Five-point composite samples from each treated stockpile were submitted to the laboratory and analyzed for Resource Conservation and Recovery Act Toxicity Characteristic Leachate Procedure (TCLP) metals to ensure that all disposal criteria were met. Stockpiles in which treatment confirmation samples exceeded disposal requirements were reprocessed and resampled for the failed parameter before disposal as nonhazardous waste.

Permeable Reactive Barrier Wall: Before full scale installation, compatibility tests were performed between the ground water and the bio-polymer, permeability testing was conducted to verify that the backfill material was more permeable than the water-bearing zone, and a test section was installed and monitored to ensure PRB effectiveness. The alignment of the PRB wall was surveyed prior to installation, and during installation, a geologist was onsite to examine the excavated material and to determine when the impermeable layer was reached.

Storm Water Discharge: Precipitation and ground water from excavations were collected and treated to meet the discharge parameters. Water was discharged to the creek only after sample analyses verified that the LDEQ discharge parameters had been met.

Ground Water Wells: The 15 ground water monitoring wells were plugged and abandoned in accordance with Louisiana State regulations.

Concrete Demolition: The concrete slabs were demolished, decontaminated, and analyzed for TCLP metals. Debris that passed TCLP metals limits was utilized as onsite backfill. Concrete demolition debris that failed to meet the TCLP metals limits were shipped to and disposed as hazardous waste.

Wastes addressed during remedial action include:

• Approximately 41,000 cubic yards (cy) of onsite and 1,400 cy of offsite soil were excavated, treated, and disposed of at an offsite landfill. The total weight of soil disposed of at the landfill was 85,444 tons. Approximately 10,000 cy of offsite soil meeting onsite cleanup levels were placed in the onsite excavations.

• An estimated 1.5 million gallons of water were treated and discharged.

• Approximately 450 tons of concrete were disposed of as hazardous waste.

• A total of 33 acres was cleared and grubbed and all trees, shrubs, and stumps were chipped and scattered onsite.

• Miscellaneous debris encountered during the remedial effort at the site were transported to the landfill and disposed of as nonhazardous waste. Examples of miscellaneous debris include telephone poles, old tires, drums, Polyvinyl Chloride pipe, wood pieces, household trash, and other solid waste.

• Approximately 300 drums containing investigation-derived waste were disposed.

• Approximately 0.5 cy of Asbestos Containing Material were removed from a storage building, double-bagged, and disposed as nonhazardous waste material.

The EPA issued an ESD for the Site to document the increase in cost; increase in waste volume treated and disposed; and, revisions to the cleanup values. No other significant differences exist between the final remedial action and the selected remedy presented in the 2000 ROD. All components of the 2000 ROD, including RAOs and remedial technologies, were instituted in order to achieve protection of human health and the environment. The total volume of waste treated and disposed was 85,444 tons; this represents an increase of 32,794 tons over the estimated 52,650 tons presented in the 2000 ROD. Battery wastes encountered at depths and locations not previously identified were defined as principal threat wastes; therefore, removal, treatment and disposal were necessary to eliminate the source of contamination for sediment, surface water, and ground water. No source materials discovered during remedial action were left in place above the risk-based cleanup levels. The final remedial action cost of $13.1 million is an increase of $3.2 million over the ROD estimate of $9.9 million. Cleanup values were established for additional onsite and offsite areas identified for cleanup during the remedial action (see Response Actions section). More detail can be found in the Final ESD dated December 14, 2004.

Long-term O&M activities will be required at the site in order to ensure the effectiveness, protectiveness, and integrity of the remedy and are discussed in the site Final O&M manual dated February 18, 2004. O&M activities will be conducted under the State and will include a ground water monitoring program, routine maintenance, and site inspections. The total estimated cost for all O&M activities over a 30-year period at a discount rate of 7% is $557,000.

Ground water monitoring activities will include well sampling to determine that the ground water pH downgradient of the PRB is increasing, metals concentrations in the ground water downgradient of the PRB are decreasing, and the metals concentrations in the ground water of the third water-bearing zone are not increasing. Quarterly monitoring of the well network will be required to obtain at least eight time-independent data points that will be evaluated using statistical tools to quantitatively assess metals concentrations and pH. Intra-well trends and population trends (upgradient and downgradient) in metals concentrations and pH will be used to evaluate the efficacy of the remedy and to recommend changes to the monitoring program, as necessary.

Routine maintenance and visual site inspections will be performed at the Delatte Site to ensure the integrity of the RA. Inspections will be made of the monitoring network, the institutional controls (ICs), and the PRB.

The monitoring wells will be maintained and repaired as necessary. If during O&M, the monitoring program changes to remove wells from the sampling schedule, then these wells will be plugged and abandoned.

The integrity of the PRB cap will be inspected and documented. If subsidence results in a low area developing over the PRB, additional soil may need to be imported to raise the soil higher than the surrounding areas to minimize infiltration. Additionally, the soil overlying the PRB will be inspected for erosion, cracks, or other pathways that could allow for surface water to enter the subsurface.

The deed files for the property will be inspected during the time of sampling to ensure that ICs remain in place. General Site inspection will also document any reuse of the Site to ensure that it is within the allowable parameter, industrial, as set by the IC. Reporting of any additional information or discussion related to future reuse, either city planning or developer purchasing, will also be included.

Consistent with section 121(c) of CERCLA and requirements of the OSWER Directive 9355.7-03B-P (“Comprehensive Five-Year Review Guidance”, June 2001), a five-year review is required at the Site. The Directive requires EPA to conduct statutory five-year reviews at sites where, upon attainment of ROD cleanup levels, hazardous substances remaining within restricted areas onsite do not allow unlimited use of the entire site.

Since hazardous substances remain onsite, this Site is subject to five-year reviews to ensure the continued protectiveness of the remedy. Based on the five-year results, EPA will determine whether human health and the environment continues to be adequately protected by the implemented remedy. The first five-year review will be completed no later than November 19, 2007.

Public participation activities have been satisfied as required in CERCLA section 113(k), 42 U.S.C. 9613(k), and CERCLA section 117, 42 U.S.C. 9617. Documents in the deletion docket which EPA relied on for recommendation of the deletion from the NPL are available to the public in the information repositories.

The EPA, with concurrence of the State of Louisiana, has determined that all appropriate responses under CERCLA have been completed, and that no further response actions, under CERCLA, other than O&M and five-year reviews, are necessary. Therefore, EPA is deleting the Site from the NPL.

Because EPA considers this action to be noncontroversial and routine, EPA is taking it without prior publication. This action will be effective August 8, 2005 unless EPA receives adverse comments by July 8, 2005. If adverse comments are received within the 30-day public comment period, EPA will publish a timely withdrawal of this direct final notice of deletion before the effective date of the deletion and it will not take effect. The EPA will prepare a response to comments and continue with the deletion process on the basis of the notice of intent to delete and the comments already received. There will be no additional opportunity to comment.

This summary of the Commission's Sixth Report and Order, IB Docket No. 00-248, FCC 05-62, adopted March 10, 2005, and released on March 15, 2005. The complete text of this Sixth Report and Order is available for inspection and copying during normal business hours in the FCC Reference Center (Room), 445 12th Street, SW., Washington, DC 20554, and also may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. It is also available on the Commission's Web site at http://www.fcc.gov.

Paperwork Reduction Act Analysis: The actions taken in the Sixth Report and Order have been analyzed with respect to the Paperwork Reduction Act of 1995 (PRA), Pub. L. 104-13, and have been found not to impose any new or modified reporting requirements or burdens on the public.

Regulatory Flexibility Analysis: As required by the Regulatory Flexibility Act of 1980, as amended (RFA), 1 an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice of Proposed Rule Making (Notice) and the Further Notice of Proposed Rulemaking (Further Notice) in IB Docket No. 00-248. 2 The Commission sought written public comment on the proposals in the Notice and Further Notice, including comment on the IRFA. This Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA. 3

The Telecommunications Act of 1996 requires the Commission in every even-numbered year beginning in 1998 to review all regulations that apply to the operations or activities of any provider of telecommunications service and to determine whether any such regulation is no longer necessary in the public interest due to meaningful economic competition. Our objective is to repeal or modify any rules in part 25 that are no longer necessary in the public interest, as required by section 11 of the Communications Act of 1934, as amended.

Specifically, in this Sixth Report and Order, the Commission increases the starting point for the earth station antenna gain pattern envelope, from 1.0° to 1.5° off-axis in the C-band, and from 1.25° to 1.5° off-axis in the Ku-band. This will allow the Commission to increase the number of earth station applications eligible for routine treatment. The Commission also adopts new rules to clarify the requirements for very small aperture terminal (VSAT) networks using reservation protocols.

No comments were submitted directly in response to the IRFAs in either the Notice or the Further Notice.

The RFA directs agencies to provide a description of, and, where feasible, an estimate of, the number of small entities that may be affected by the rules adopted herein. 4 The RFA generally defines the term “small entity “ as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.”  5 In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. 6 A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA). 7

1. Cable Services. The SBA has developed a small business size standard for Cable and Other Program Distribution, which consists of all such firms having $12.5 million or less in annual receipts. 8 According to Census Bureau data for 1997, in this category there was a total of 1,311 firms that operated for the entire year. 9 Of this total, 1,180 firms had annual receipts of under $10 million, and an additional fifty-two firms had receipts of $10 million to $24,999,999. 10 Thus, under this size standard, the majority of firms can be considered small.

The Commission has developed its own small business size standard for a small cable operator for the purposes of rate regulation. Under the Commission's rules, a “small cable company” is one serving fewer than 400,000 subscribers nationwide. 11 Based on our most recent information, we estimate that there were 1,439 cable operators that qualified as small cable companies at the end of 1995. 12 Since then, some of those companies may have grown to serve over 400,000 subscribers, and others may have been involved in transactions that caused them to be combined with other cable operators. Consequently, we estimate that there are fewer than 1,439 small cable companies that may be affected by the proposed rules.

The Communications Act of 1934, as amended, also contains a size standard for a “small cable operator,” which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than one percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.”  13 The Commission has determined that there are 67,700,000 subscribers in the United States. 14 Therefore, an operator serving fewer than 677,000 subscribers shall be deemed a small operator, if its annual revenues, when combined with the total annual revenues of all of its affiliates, do not exceed $250 million in the aggregate. 15 Based on available data, we estimate that the number of cable operators serving 677,000 subscribers or less totals approximately 1,450. 16 We do not request or collect information on whether cable operators are affiliated with entities whose gross annual revenues exceed $250,000,000, 17 and therefore are unable to estimate accurately the number of cable system operators that would qualify as small cable operators under the definition in the Communications Act.

2. Satellite Telecommunications. The rules proposed in this Further Notice would affect providers of satellite telecommunications services, if adopted. Satellite telecommunications service providers include satellite operators and earth station operators. The Commission has not developed a definition of small entities applicable to satellite operators. Therefore, the applicable definition of small entity is generally the definition under the SBA rules applicable to Satellite Telecommunications. 18 This definition provides that a small entity is expressed as one with $12.5 million or less in annual receipts. 19 1997 Census Bureau data indicate that, for 1997, 273 satellite communication firms had annual receipts of under $10 million. In addition, 24 firms had receipts for that year of $10 million to $24,999,990. 20

3. Auxiliary, Special Broadcast and other program distribution services. This service involves a variety of transmitters, generally used to relay broadcast programming to the public (through translator and booster stations) or within the program distribution chain (from a remote news gathering unit back to the station). The Commission has not developed a definition of small entities applicable to broadcast auxiliary licensees. Therefore, the applicable definition of small entity is the definition under the Small Business Administration (SBA) rules applicable to radio broadcasting stations, 21 and television broadcasting stations. 22 These definitions provide that a small entity is one with either $6.0 million or less in annual receipts for a radio broadcasting station or $12.0 million in annual receipts for a TV station. 23 There are currently 3,237 FM translators and boosters, 4913 TV translators. 24 The FCC does not collect financial information on any broadcast facility and the Department of Commerce does not collect financial information on these auxiliary broadcast facilities. We believe, however, that most, if not all, of these auxiliary facilities could be classified as small businesses by themselves. We also recognize that most translators and boosters are owned by a parent station which, in some cases, would be covered by the revenue definition of small business entity discussed above. These stations would likely have annual revenues that exceed the SBA maximum to be designated as a small business (as noted, either $6.0 million for a radio station or $12.0 million for a TV station). Furthermore, they do not meet the Small Business Act's definition of a “small business concern” because they are not independently owned and operated.

4. Microwave Services. Microwave services include common carrier, 25 private-operational fixed, 26 and broadcast auxiliary radio services. 27 At present, there are approximately 22,015 common carrier fixed licensees and 61,670 private operational-fixed licensees and broadcast auxiliary radio licensees in the microwave services. The Commission has not yet defined a small business with respect to microwave services. For purposes of this FRFA, we will use the SBA's definition applicable to cellular and other wireless communications companies— i.e. , an entity with no more than 1,500 persons. 28 We estimate that all of the Fixed Microwave licensees (excluding broadcast auxiliary licensees) would qualify as small entities under the SBA definition for radiotelephone (wireless) companies.

None of the rules adopted in this Sixth Report and Order will affect small businesses differently from other non-routine earth station applicants. The revisions to the earth station antenna gain pattern envelope will make it easier for all earth station operators, including small businesses, to comply with the rule. The revisions to the VSAT rules do not create any new reporting or recordkeeping requirements.

The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities. 29

This Sixth Report and Order adopts revisions to the earth station antenna gain pattern envelope that will increase the number of earth station applications that can be treated routinely, thereby enabling the Commission to act on those earth station applications more quickly. The Commission specifically considered and rejected an alternative proposal to such earth station operators to include in their applications a complex technical demonstration that their earth stations will comply with a new regulatory standard called the “minimum acceptable pointing error.” Requiring these technical demonstrations would have increased the burdens placed on these earth station operators, including those that are small entities. Thus, rejection of that proposal benefits these earth station applicants, including small entities.

The Commission will send a copy of the Sixth Report and Order , including this FRFA, in a report to be sent to Congress pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A). In addition, the Commission will send a copy of the Sixth Report and Order , including FRFA, to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the Sixth Report and Order and FRFA (or summaries thereof) will also be published in the Federal Register . See 5 U.S.C. 604(b).

Summary of Report and Order: The Commission has decided to begin the antenna gain pattern envelope at 1.5° off-axis within the GSO orbital arc for C-band and Ku-band earth stations, and 3.0° off-axis outside the GSO orbital arc for Ku-band earth stations. It also decided that the provisions proposed in the Further Notice to help reduce pointing error are not needed, but instead requires VSAT network operators to design their networks to stop transmissions when synchronization fails. Finally, the Commission increased the Commission's backlobe requirements to 0 dBi for off-axis angles greater than 85°, for earth stations operating in the Ku-band or portions of the Ka-band that are not shared with other services.

Except for the new synchronization requirement, these requirements will not take effect until after resolution of the off-axis EIRP issues discussed in the Third Further Notice in this proceeding. In the event that the Commission adopts off-axis EIRP envelopes for FSS earth stations, it will base those envelopes on the revised antenna gain pattern requirements adopted in this Order. In the event that the Commission decides not to adopt off-axis EIRP envelopes for FSS earth stations, parties are invited to propose new minimum routine antenna sizes based on these revised antenna gain pattern requirements. Such proposals should be supported by an adequate technical analyses. In particular, parties are requested to explain the method or methods they use to replicate or estimate the antenna gain patterns generated by earth station antennas of different sizes.

In this Sixth Report and Order , the Commission also adopts rules to govern Ku-band and C-band VSAT systems using time division multiple access (TDMA), frequency division multiple access (FDMA) and code division multiple access (CDMA). The new rules do not require any adjustment to the power levels of VSAT systems using TDMA or FDMA, but require a power decrease for VSAT systems using CDMA. The required power decrease is based on the number of simultaneously transmitting earth stations. These requirements will also apply to Single Channel per Carrier (SCPC) transmissions. VSAT networks licensed before the adoption date of this Sixth Report and Order will not be subject to the new rules.

Accordingly, it is ordered , pursuant to sections 4(i), 7(a), 303(c), 303(f), 303(g), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 157(a), 303(c), 303(f), 303(g), 303(r), that this Sixth Report and Order in IB Docket No. 00-248 is hereby adopted .

It is further ordered that part 25 of the Commission's rules is amended as set forth in Appendix B. An announcement of the effective date of these rule revisions will be published in the Federal Register .

It is further ordered that the Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Order, including the Final Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business Administration.

This is a synopsis of the Commission's Report and Order , MB Docket No. 04-203, adopted May 25, 2005, and released May 27, 2005. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The complete text of this decision also may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC, 20554, (800) 378-3160, or via the company's Web site, http://www.bcpiweb.com . The Commission will send a copy of this Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see U.S.C. 801(a)(1)(A).

This is a synopsis of the Commission's Report and Order , MB Docket No. 05-35, adopted May 25, 2005, and released May 27, 2005. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The document may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or http://www.BCPIWEB.com . The Commission will send a copy of this Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

Channel 283A has been inadvertently listed in 47 CFR 73.202(b), FM Table of Allotments under Jackson, Michigan, since October 1, 1995. We have no record that such an allotment has actually been made. Accordingly, the Report and Order deletes Channel 283A from 47 CFR 73.202(b) under Jackson, Michigan.

On January 24, 2005, the Pipeline and Hazardous Materials Safety Administration (PHMSA, we) published a final rule to enhance the safety of hazardous materials transported in commerce (70 FR 3302). In this final rule, we incorporated into the regulations the provisions of certain widely-used exemptions that have an established safety history and that may be converted into regulations for general use. We also made minor revisions to the requirements for use of packagings authorized under exemptions. The revisions provide wider access to the benefits of the provisions granted in these exemptions and eliminate the need for the current exemption holders to reapply for renewal of the exemption, thus reducing paperwork burdens and facilitating commerce while maintaining an acceptable level of safety. The effective date of this final rule is March 25, 2005.

On May 5, 2005, OMB approved an information collection for the inspection and testing of meter provers, OMB No. 2137-0620, “Inspection and Testing of Meter Provers,” until May 31, 2008. Because OMB approved the information collection after publication of the January 24, 2005 final rule, we are announcing the OMB approval and incorporating this new information collection approval into § 171.6, “Control numbers under the Paperwork Reduction Act,” under OMB Control No 2137-0620.

OMB regulations (5 CFR 1320) implementing provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13) require that interested members of the public and affected agencies have an opportunity to comment on information collection and recordkeeping activities (see 5 CFR 1320.8(s)) and specify that no person is required to respond to an information collection unless it displays a valid OMB control number. In accordance with the Paperwork Reduction Act of 1995, PHMSA has received OMB approval of the following ICR and § 171.6(b)(2) is revised by incorporating the following information collection:

OMB Control Number: 2137-0620.

Title: Inspection and Testing of Meter Provers.

This information collection approval expires on May 31, 2008. This information collection request was approved by OMB on May 5, 2005.

We are revising the table in paragraph (b)(2) to incorporate a new information collection, OMB No. 2137-0620, “Inspection and Testing of Meter Provers.”

This final rule is not considered a significant regulatory action under section 3(f) and was not reviewed by the Office of Management and Budget (OMB). This final rule is not considered a significant rule under the Regulatory Policies and Procedures order issued by the Department of Transportation [44 FR 11034]. The costs and benefits of this final rule are considered to be so minimal as to not warrant preparation of a regulatory impact analysis or a regulatory evaluation. The provisions of this final rule provide a relaxation of the regulations and, as such, impose little or no additional costs to affected industry.

This final rule has been analyzed in accordance with the principles and criteria in Executive Order 13132 (“Federalism”). This final rule does not propose any regulation that: (1) Has substantial direct effects on the States, the relationship between the National Government and the States, or the distribution of power and responsibilities among the various levels of government; (2) imposes substantial direct compliance costs on State and local governments; or (3) preempts State law. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply. PHMSA is not aware of any State, local, or Indian tribe requirements that would be preempted by correcting editorial errors and making minor regulatory changes. This final rule does not have sufficient federalism impacts to warrant the preparation of a federalism assessment.

This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Because this final rule does not have tribal implications, does not impose substantial direct compliance costs on Indian tribal governments, and does not preempt tribal law, the funding and consultation requirements of Executive Order 13175 do not apply, and a tribal summary impact statement is not required.

I certify that this final rule will not have a significant economic impact on a substantial number of small entities. This rule makes minor editorial changes which will not impose any new requirements on persons subject to the HMR; thus, there are no direct or indirect adverse economic impacts for small units of government, businesses or other organizations.

This final rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $120.7 million or more to either State, local, or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objective of the rule.

There are no new information collection requirements in this final rule. This final rule announces the approval of information collection OMB No. 2137-0620 “Inspection and Testing of Meter Provers,” and incorporates this new OMB Control Number, Title, and Affected Sections into the Section 171.6 (b)(2) table in the HMR.

A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.

The Federal Civil Penalties Inflation Adjustment Act of 1990 (Inflation Act) requires that an agency adjust by regulation each maximum civil monetary penalty (CMP), or range of minimum and maximum CMPs, within that agency's jurisdiction by October 23, 1996 and adjust those penalty amounts once every four years thereafter to reflect inflation. Public Law 101-410, 104 Stat. 890, 28 U.S.C. 2461, note, as amended by Section 31001(s)(1) of the Debt Collection Improvement Act of 1996, Public Law 104-134, 110 Stat. 1321-373, April 26, 1996. Congress recognized the important role that CMPs play in deterring violations of Federal law and regulations and realized that inflation has diminished the impact of these penalties. In the Inflation Act, Congress found a way to counter the effect that inflation has had on the CMPs by having the agencies charged with enforcement responsibility administratively adjust the CMPs.

Under the Inflation Act, the inflation adjustment is to be calculated by increasing the maximum CMP, or the range of minimum and maximum CMPs, by the percentage that the Consumer Price Index (CPI) for the month of June of the calendar year preceding the adjustment (here, June 2004) exceeds the CPI for the month of June of the last calendar year in which the amount of such penalty was last set or adjusted (here, June 1998 for the ordinary maximum). The Inflation Act also specifies that the amount of the adjustment must be rounded to the nearest multiple of $100 for a penalty between $100 and $1,000, or to the nearest multiple of $5,000 for a penalty of more than $10,000 and less than or equal to $100,000. The first adjustment may not exceed an increase of ten percent. FRA utilized Bureau of Labor Statistics data to calculate adjusted CMP amounts.

FRA is authorized as the delegate of the Secretary of Transportation to enforce the Federal railroad safety statutes and regulations, including the civil penalty provisions at 49 U.S.C. ch. 213. 49 CFR 1.49; 49 U.S.C. ch. 201-213. FRA currently has 27 regulations that contain provisions that reference its authority to impose civil penalties if a person violates any requirement in the pertinent portion of a statute or the Code of Federal Regulations. In this final rule, FRA is amending each of those separate regulatory provisions and the corresponding footnotes in each Schedule of Civil Penalties to raise the ordinary maximum CMP to $15,000.

With the exception of the penalties relating to the hours of service laws (49 U.S.C. ch. 211), the ordinary maximum CMP for a violation of the rail safety laws and regulations was established by the Rail Safety Improvement Act of 1988, which set a $10,000 limit for a CMP imposed for any ordinary violation, and a $20,000 limit for a grossly negligent violation (“grossly negligent violation”) or a pattern of repeated violations that has created an imminent hazard of death or injury or caused death or injury. In 1998, after applying the adjustment calculation in the Inflation Act, FRA determined that the ordinary maximum CMP for any single violation needed to be increased to $11,000 and that the maximum CMP for grossly negligent violations needed to be increased to $22,000. FRA amended each of its regulations by final rule to reflect the increased CMPs. 63 FR 11618.

The Rail Safety Enforcement and Review Act (RSERA) in 1992 increased the range of the minimum and maximum civil penalty from $1,000 to $10,000 and $20,000, respectively, for a violation of the hours of service laws, making these minimum and maximum penalty amounts uniform with those of FRA's other regulatory provisions. By applying the same adjustment calculation using the 1992 CPI, the maximum penalties for violations of the hours of service laws were raised to equal those of the other rail safety laws and regulations: $11,000 and $22,000.

RSERA also increased the minimum CMP for all of the rail safety statutes and regulations from $250 to $500. In 1998, FRA had applied the adjustment calculation in the Inflation Act to the minimum CMP and had determined that it would not need to be increased. In 2004, FRA by applying the adjustment calculation using the June 2003 CPI determined that the minimum CMP should be increased from $500 to $550. As required, FRA recently reevaluated the minimum CMP and concluded that it should remain at $550, as the next calculations show. The June 2004 CPI of 568.2 divided by 568.2 (since the last update was in 2004) equals an inflation factor of 1; $550 times 1 equals $550, or an increase of zero. 69 FR 30591.

FRA also reevaluated the CMP for a grossly negligent violation and determined that it should remain at $27,000, as the following calculations show. The June 2004 CPI of 568.2 divided by 568.2 (since the last update was in 2004) equals an inflation factor of 1; $27,000 times 1 equals $27,000, or an increase of zero. 69 FR 30591.

In 2004, FRA had applied the adjustment calculation in the Inflation Act to the ordinary maximum CMP and concluded that it would not need to be increased. 69 FR 30591. Now, applying the adjustment calculation using the June 2004 CPI, FRA has determined that the ordinary maximum CMP should be increased from $11,000 to $15,000, as the next calculations show.

The June 2004 CPI of 568.2 divided by the June 1998 CPI of 488.2 equals an inflation factor of 1.164; $11,000 times 1.164 equals $12,804, or an increase of $1,804, which is rounded up to the nearest multiple of $5,000, raising the ordinary maximum CMP to $15,000.

Because this is the second time that the ordinary maximum CMP has been adjusted under the Act, the ten-percent cap on the increase does not apply. This new FRA ordinary maximum penalty will apply to violations that occur on or after July 8, 2005.

FRA is proceeding to a final rule without providing a notice of proposed rulemaking or an opportunity for public comment. The adjustments required by the Act are ministerial acts over which FRA has no discretion, making public comment unnecessary. FRA is issuing these amendments as a final rule applicable to all future rail safety civil penalty cases under its authority.

This rule has been evaluated in accordance with existing policies and procedures. It is not considered a significant regulatory action under section 3(f) of Executive Order 12866 and, therefore, was not reviewed by the Office of Management and Budget. This rule is not significant under the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034) because it is limited to a ministerial act on which the agency has no discretion. The economic impact of the final rule is minimal to the extent that preparation of a regulatory evaluation is not warranted.

FRA certifies that this final rule will not have a significant economic impact on a substantial number of small entities. Although this rule will apply to railroads and others that are considered small entities, there is no economic impact on any person who complies with the Federal railroad safety laws and the regulations and orders issued under those laws.

This final rule will not have a substantial effect on the States, on the relationship between the National Government and the States, or the distribution of power and responsibilities among the various levels of government. Thus, in accordance with Executive Order 13132, preparation of a Federalism assessment is not warranted.

There are no new information collection requirements in this final rule.

The final rule issued today will not result in the expenditure, in the aggregate, of $120,700,000 or more in any one year by State, local, or Indian tribal governments, or the private sector, and thus preparation of a statement is not required.

There are no significant environmental impacts associated with this final rule.

According to definitions set forth in Executive Order 13211, there will be no significant energy action as a result of the issuance of this final rule.

You may obtain an electronic copy using the Internet by—

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

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

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

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

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires TSA to comply with small entity requests for information and advice about compliance with statutes and regulations within TSA's jurisdiction. Any small entity that has a question regarding this document may contact the person listed in FOR FURTHER INFORMATION CONTACT . Persons can obtain further information regarding SBREFA on the Small Business Administration's Web page at http://www.sba.gov/advo/laws/law_lib.html .

On June 1, 2004, TSA published a notice in the Federal Register establishing a new system of records titled “Registered Traveler Operations Files (DHS/TSA 015),” which governs records related to the Registered Traveler (RT) pilot program. See 69 FR 30948. TSA is currently conducting a pilot program at a limited number of airports to test and evaluate the merits of the RT program, in which travelers may volunteer to undergo a limited security threat assessment in order to expedite the pre-boarding process.

In conjunction with the establishment of Registered Traveler Operations Files (DHS/TSA 015), TSA published a notice of proposed rulemaking on September 8, 2004, to exempt this system of records from several provisions of the Privacy Act. See 69 FR 54256. Specifically, TSA proposed to exempt the system of records from 5 U.S.C. 552a(c)(3) (accounting of disclosures); (d) (access to records); (e)(1) (relevancy and necessity of information); (e)(4)(G), (H) and (I) (agency requirements); and (f) (agency rules) pursuant to exemptions (k)(1) and (k)(2) of the Act. TSA claimed these exemptions in accordance with the Privacy Act so that the security aspects of the system may properly function, and to prevent the unauthorized disclosure of classified and law enforcement information.

TSA did not receive any comments on the proposed rule but made two minor, non-substantive changes. TSA revised § 1507.3(i)(1) (Accounting for Disclosures) to reflect the fact that the “investigative interest” involved may be on the part of the Department of Homeland Security or other law enforcement or recipient agencies. In § 1507.3(i)(2) (Access to Records) TSA also revised the reference “security sensitive information” to read “sensitive security information protected pursuant to 49 U.S.C. 114(s) and 49 CFR part 1520 * * *”. TSA therefore adopts the proposed rule as final with these minor modifications.

The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501. et seq. ) requires that TSA consider the impact of paperwork and other information collection burdens imposed on the public and, under the provisions of PRA section 3507(d), obtain approval from the Office of Management and Budget (OMB) for each collection of information it conducts, sponsors, or requires through regulations. TSA has determined that there are no current or new information collection requirements associated with this rule.

This rule is not a “significant regulatory action” within the meaning of Executive Order 12886. Because the economic impact should be minimal, further regulatory evaluation is not necessary. Moreover, I certify that this rule will not have a significant economic impact on a substantial number of small entities, because the reporting requirements themselves are not changed and because it applies only to information on individuals.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), (Pub. L. 104-4, 109 Stat. 48), requires Federal agencies to assess the effects of certain regulatory actions on State, local, and tribal governments, and the private sector. UMRA requires a written statement of economic and regulatory alternatives for proposed and final rules that contain Federal mandates. A “Federal mandate” is a new or additional enforceable duty, imposed on any State, local, or tribal government, or the private sector. If any Federal mandate causes those entities to spend, in aggregate, $100 million or more in any one year the UMRA analysis is required. This rule will not impose Federal mandates on any State, local, or tribal government or the private sector.

TSA has analyzed this rule under the principles and criteria of Executive Order 13132, Federalism. We determined that this action will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government, and therefore will not have federalism implications.

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

The energy impact of this document has been assessed in accordance with the Energy Policy and Conservation Act (EPCA) Public Law 94-163, as amended (42 U.S.C. 6362). We have determined that this rulemaking is not a major regulatory action under the provisions of the EPCA.

The reef fish fishery in the exclusive economic zone (EEZ) of the Gulf of Mexico is managed under the FMP. The FMP was prepared by the Council and is implemented under the authority of the Magnuson-Stevens Act by regulations at 50 CFR part 622.

NMFS approved Amendment 23 on May 23, 2005. NMFS published a proposed rule to implement Amendment 23 and requested public comment on the proposed rule through April 25, 2005 (70 FR 11600, March 9, 2005). The rationale for the measures in Amendment 23 is provided in the preamble to the proposed rule and is not repeated here.

Following is a summary of comments received on Amendment 23 and the associated proposed rule along with NMFS' responses.

Comment 1: Increasing the minimum size from 10 inches (25.4 cm) to 11 inches (28.0 cm) total length and establishing a commercial closed season from April 21 to May 31 will result in high rates of discard mortality, minimizing the effectiveness of harvest reduction measures.

Response: All harvest reduction measures examined in Amendment 23 have some associated discard mortality. In evaluating the measures, the Council balanced harvest reduction, the degree of discard mortality, and the economic efficacy of each alternative.

Increasing the minimum size to 11 inches (28 cm) would temporarily increase the number of discards. However, it also protects vermilion snapper spawning by protecting immature fish from harvest and allows mature fish additional spawning seasons. As time proceeds, the number of discards should decrease somewhat as the population rebuilds and larger fish become more available.

The closed season for the commercial fishery was requested by industry representatives to avoid a 12-inch minimum size limit, avoid trip limits, and minimize the economic harm to markets of an extended season closure. To minimize the number of vermilion snapper discarded when the commercial red snapper season is open, the season closure was designed to only span one red snapper 10-day season (May 1 through May 10). The closed season will have some positive effect on vermilion snapper spawning because it covers the beginning of the reproductive season.

Comment 2: Three comments were received suggesting the recreational and commercial fisheries should be closed at the same time to halt illegal sale of vermilion snapper by anglers when the commercial season is closed.

Response: To sell reef fish, a valid Federal commercial reef fish permit is required. Reef fish can only be sold to a dealer who has a valid Federal permit for Gulf reef fish. Thus, the sale of recreationally caught reef fish such as vermilion snapper is illegal. While keeping concurrent closed seasons for the commercial and recreational fisheries would aid enforcement of illegal sales, the Council determined that it preferred a year-round recreational fishery. A recreational closed season would only increase bycatch mortality for this mainly non-target species. To achieve the needed harvest reductions, they chose to increase the minimum size and decrease the bag limit to provide protection to the stock year-round.

The Council selected the closed season for the commercial fishery based on industry input. Commercial fishermen opposed trip limits as a means to achieve the required reductions. They suggested one 40-day closed period would not affect product value by reducing access to markets once the season re-opened, and they selected the closure to center on May because harvest was highest, the markets were glutted reducing wholesale dockside prices, and fish were aggregated for spawning and easy to catch.

Comment 3: Five commenters indicated Amendment 23 should include alternatives for monitoring and minimization of bycatch. They suggested coordinating vermilion and red snapper management practices could minimize bycatch.

Response: The Council recently approved, and NMFS is in the process of implementing, additional bycatch reporting methodologies in Amendment 22 to the FMP. These include the development of an observer program managed by NMFS for the reef fish fishery and enhancement of the Marine Recreational Fisheries Statistics Survey (MRFSS) by including headboats, using the same sampling methodology as used for charter vessels. Given these measures, NMFS does not see the need for additional reporting requirements at this time.

A bycatch practicability analysis was conducted for the vermilion snapper fishery in Amendment 23. The analysis concluded that it is not practical to further minimize bycatch in the directed vermilion snapper fishery. The economic and social costs and benefits associated with management measures intended to sustain the stock outweigh the benefits of trying to further minimize bycatch. Although all of the proposed harvest reduction measures would increase bycatch to varying degrees, increases in stock abundance would exceed losses resulting from bycatch, allowing the stock to rebuild to B MSY . Additionally, because vermilion snapper constitute a small directed fishery, it is not expected that bycatch reduction measures would greatly affect other reef fish species caught as bycatch, such as red snapper.

Linking vermilion snapper management to red snapper management, for example, through establishment of concurrent fishing seasons, would be one way to minimize vermilion snapper bycatch. However, for both the recreational and commercial vermilion snapper fisheries, this would result in greater reductions in harvest than required by the rebuilding plan. For the commercial fishery, the reductions in harvest would be well over 50 percent, and for the recreational fishery, the reduction would be approximately 30 percent (based on landings data presented in Table 4.2.3.1.8 in Amendment 23). The reduction required by the vermilion snapper rebuilding plan is 26.3 percent for the commercial fishery and 21.5 percent for the recreational fishery.

An additional factor complicating co-management of these species is that vermilion snapper is a minor component of the reef fish fishery and so is generally not targeted. This means vermilion snapper are likely to be caught on reef fish trips targeting species other than red snapper, such as grouper and amberjack. If the seasons for red snapper and vermilion snapper are linked, then reef fish fishermen catching vermilion snapper during the closed season would have to discard those fish. This could actually lead to an increase in the bycatch mortality of vermilion snapper.

Finally, an individual fishing quota (IFQ) management system is being developed for the commercial red snapper fishery. IFQs, if implemented, would give individual fishermen shares in the fishery that they could fish anytime during the fishing year. This would result in the elimination of seasonal closures for the commercial red snapper fishery.

Comment 4: Five comments were received suggesting the rebuilding period for the stock should be shorter than the currently proposed maximum allowable time period.

Response: The Council evaluated rebuilding periods shorter than the allowed maximum of 10 years. In selecting a rebuilding plan, it is necessary to balance the conservation mandate provided by national standard 1 with the directive provided by national standard 8 to minimize to the extent practicable adverse economic impacts on fishing communities.

A 3-year rebuilding period that used a no-harvest strategy was not practicable because it required eliminating all discard mortality from directed and non-directed fisheries, would actually increase discard mortality dramatically because all unavoidable commercial and recreational catch would have to be released, and would cause major economic and social hardships on the directed fishery.

The Council also evaluated 7-year rebuilding plans. While they would end overfishing within one year after the rebuilding plans are implemented and would provide a quicker recovery of the stock, the initial reductions in harvest would be approximately 30 percent or greater. This initial reduction in harvest would create too much of a negative short-term impact on the economic and social environment of the fishery.

Comment 5: Three comments indicated that the reductions in harvest applied to the commercial and recreational fisheries are not fair and equitable.

Response: As stated in Amendment 23, the rebuilding plan requires across-the-board reductions in harvest of 25.5 percent for the proposed rebuilding plan. However, the Council noted that the vermilion snapper harvest increased dramatically during the late 1980s and early 1990s due primarily to increases in commercial harvest. This increase is believed to have created the overfishing and overfished conditions that are addressed by Amendment 23. Thus, the Council determined some shift of the socioeconomic costs of rebuilding to the commercial fishery was needed. The reduction assigned to the recreational fishery was 21.5 percent, which required an increased harvest reduction for the commercial fishery of 26.3 percent. In comparison to the across-the-board 25.5 percent reduction requirement in the rebuilding plan, the percent increase in the reduction for the commercial fishery (1.3 percent more than 25.5 percent) is lower than the percent decrease in the recreational fishery (3.5 percent less than 25.5 percent) because most landings are by the commercial sector.

Comment 6: The analysis of the alternatives is based on an uncertain assessment model and uses outdated information rather than relying on the best scientific data available.

Response: Amendment 23 is based on the best available scientific information and accordingly will establish a 10-year vermilion snapper rebuilding plan ending overfishing and rebuild the stock to B MSY . The Council's Reef Fish Stock Assessment Panel (RFSAP) examined several models developed and analyzed as part of the assessment. The RFSAP determined the surplus production models, which tracked total fish biomass rather than separating them into age classes, were more appropriate because of difficulties in the age-length relationship for vermilion snapper. Moreover, the RFSAP chose what was termed the base model as the best model because of its relatively good fit to the observed data.

The rebuilding time frame and harvest reduction measures were developed from the base model for the stock assessment. However, running the assessment model to project future outcomes was complicated by new data collected since 1999 that suggest the stock is in better condition than predicted. These extended indices suggested vermilion snapper has either stabilized or increased since 1999.

In January 2004, the U.S. Congress amended section 313(j) of the Magnuson-Stevens Act through the Consolidated Appropriations Act of 2004 (Pub. L. 108-199, section 801). As amended, section 313(j)(1) requires the Secretary of Commerce to approve and implement by regulation the Crab Rationalization Program (Program), as it was approved by the North Pacific Fishery Management Council (Council) between June 2002 and April 2003, and all trailing amendments, including those reported to Congress on May 6, 2003. In June 2004, the Council consolidated its actions on the Program into the Council motion, which is contained in its entirety in Amendment 18. Additionally, in June 2004, the Council developed Amendment 19, which represents minor changes necessary to implement the Program. The Notice of Availability for these amendments was published in the Federal Register on September 1, 2004 (69 FR 53397). NMFS published a proposed rule to implement Amendments 18 and 19 on October 29, 2004 (69 FR 63200). NMFS approved Amendments 18 and 19 on November 19, 2004. NMFS published a final rule to implement Amendments 18 and 19 on March 2, 2005 (70 FR 10174). NMFS also published a final rule (March 18, 2005; 70 FR 13097) to correct OMB control numbers provided in the final rule dated March 2, 2005 (70 FR 10174).

NOAA seeks to ensure the final rule (March 2, 2005; 70 FR 10174) conforms to the statutory requirements and intent of the Program, to provide clarification regarding the Program's regulatory requirements, and to correct minor technical errors.

These corrections are made to sections of the rule that do not currently conform to the statutory requirements of the Program. Some of the dates specified in the final rule for qualifying years and eligibility years were incorrect. This correction ensures that the final rule conforms to statutory requirements.

For the Bristol Bay red king crab (BBR) Quota Share (QS) fishery, the participation seasons for Catcher Vessel Crew (CVC) and Catcher/processor Crew (CPC) QS are corrected by adding the year 1999 and removing the year 2002. On page 10293, row 1 (BBR), column D, paragraph (3) is removed. On page 10293, row 1 (BBR), column D, paragraph (2) is redesignated as paragraph (3), “October 15, 2001 through October 18, 2001.” On page 10293, row 1 (BBR), column D, paragraph (1) is redesignated as paragraph (2), “October 16, 2000 through October 20, 2000.” On page 10293, row 1 (BBR), column D, a new paragraph (1) is added, “October 15, 1999 through October 20, 1999.”

For the Bering Sea snow crab (BSS) QS fishery, the 1998 qualifying year for QS and the 1998 eligibility year for CVC and CPC QS are corrected. On page 10293, row 2 (BSS), columns B and C, paragraphs (3) are amended by removing “March 21, 1998” and adding in its place “March 20, 1998.”

For the Bering Sea Tanner crab (BST) QS fishery, the qualifying years for CVC and CPC QS are corrected. The 1991/1992 year was inadvertently omitted from the qualifying years and is added by this rule. The year November 1, 1993 through November 10, 1993 is combined with the year November 20, 1993 through January 1, 1994. On page 10293, row 3 (BST), column B, paragraphs (2) and (3) are combined as new paragraph (3), “November 1, 1993 through November 10, 1993, and November 20, 1993 through January 1, 1994.” On page 10293, row 3 (BST), column B, paragraph (1) is redesignated as paragraph (2), “November 15, 1992 through March 31, 1993.” On page 10293, row 3 (BST), column B, new paragraph (1) is added, “November 15, 1991 through March 31, 1992.” This date was inadvertently omitted in the final rule.

For the Eastern Aleutian Islands golden king crab QS fishery (EAG), the date for the 2000 eligibility year for CVC and CPC QS is corrected. On page 10294, row 4 (EAG), column C, paragraph (5) is amended by removing “September 25, 2000” and adding in its place “September 24, 2000.”

For the Western Aleutian Islands golden king crab QS fishery (WAG), the date for the 1997/1998 qualifying year for QS, the date for the 2000/2001 qualifying year for QS, 2000/2001 eligibility year for CVC and CPC QS, and the 2000/2001 recent participation season for CVC and CPC QS are corrected. On page 10294, row 7 (WAG), column B, paragraph (2) is amended by removing “August 21, 1998” and adding in its place “August 31, 1998.” On page 10294, row 7 (WAG), columns B and C, paragraphs (5) and column D, paragraph (2), are amended by removing “March 28, 2001” and adding in its place “May 28, 2001.”

For the Western Aleutian Islands red king crab QS fishery (WAI), the date for the 1993/1994 eligibility year for CVC and CPC QS is corrected and two typographical errors are corrected. On page 10295, row 8 (WAI), column C, paragraph (2) is amended by removing “November 1, 1995” and adding in its place “November 1, 1993.” On page 10295, row 8 (WAI), column C, the introductory paragraph is amended by removing a duplicate paragraph “3 of the 4 seaons beginning on:” On page 10295, row 8 (WAI), column D, the introductory paragraph is amended by removing “fishiers” and adding in its place “fisheries.”

For the Bering Sea Tanner crab QS fishery (BSS), the date of the 1998 initial issuance of crab PQS is corrected. On page 10295, row 2 Bering Sea snow crab (BSS), column B, season (2) is amended by removing “March 21, 1998” and adding in its place “March 20, 1998.”

These corrections are clarifications that explain regulatory changes that are more substantive than typographical/editorial type corrections.

Wording in the preamble of the proposed rule (69 FR 63200) regarding crab issues in the CDQ Program was correct. However, in two places, wording in the final rule regarding these same issues was inadvertently changed from “IFQ” to read “quotas” and “quota.” This rule corrects those two errors.

On page 10176, column 3, 21 lines after the heading, Community Development Quota Program and Community Allocations, replace “when IFQ have been reached” with “when quotas have been reached.”

On page 10176, column 3, 22 lines after the heading, Community Development Quota Program and Community Allocations, remove “associated with IFQ overages” and replace it with “associated with quota overages.”

Section 680.6 is corrected by removing the phrase “whether OUR CRAB or THEIR CRAB” to remove potential double counting activities during custom processing. This phrase was removed from the EDRs, but inadvertently was not removed from the regulations. The phrase “whether OUR CRAB or THEIR CRAB” is removed at the following locations:

On page 10253, column 3, paragraph 680.6(c)(5)(xii);

On page 10255, column 1, paragraph 680.6(d)(4)(xii);

On page 10256, column 3, paragraph 680.6(e)(5)(ix);

On page 10257, column 3, paragraph 680.6(f)(4)(ix);

On page 10259, column 2, paragraph 680.6(g)(5)(ix); and

On page 10260, column 1, paragraph 680.6(h)(4)(ix).

On page 10260, column 1, paragraph 680.6(h)(4)(viii) is amended by removing “over all vessel activities” and adding in its place “over all plant activities.”

On page 10261, column 1, paragraphs 680.7(e)(3) and (e)(4) are removed. Paragraph (e)(3) prohibits the receipt of Class B IFQ by transfer if a person holds PQS or IPQ. Paragraph (e)(4) prohibits the receipt of Class B IFQ by transfer if you are affiliated with a person who holds PQS or IPQ. At page 10186, column 1, 3rd full paragraph, halfway down, the clear intent of NMFS is to allow this same receipt of Class B IFQ by transfer. “The Annual Application for IFQ or IPQ” requires each applicant to annually submit their affidavit and provides a reasonable assurance that if affiliation were to change in mid-season, those changes will be reflected in the affidavit for the following year. NMFS established a time period from shortly after the annual application is due until IFQ and IPQ is issued in which no transfers of IFQ or IPQ will be approved (see paragraph 680.41(b)(4)). This will provide NMFS with time to review the affiliation information, determine the amount of Class A IFQ and Class B IFQ to be issued to each IFQ holder, and to issue that IFQ and IPQ. Once issued, transfers could occur that could result in Class B IFQ being transferred to IPQ holders or their affiliates. Because NMFS is modifying the way in which Class A IFQ and Class B IFQ is allocated to PQS or IPQ holders and their affiliates, this would be permitted.

In the proposed rule, paragraph 680.21(f)(1) stated that “transfers of QS that occur after the June 30 deadline” . . . “will not be reflected in the type or amount of IFQ permit issued to the

cooperative for the subsequent fishing season.” A new crab fishing year begins each July 1; therefore this paragraph speaks to the next fishing season. This text was revised in the final rule, paragraph 680.21(d)(1) to state that “transfers of QS that occur after the August 1 deadline” . . . “will not be reflected in the type or amount of IFQ permit issued to the crab harvesting cooperative for the subsequent fishing season.” When the date changed from June 30 to August 1, the term “subsequent” inadvertently was not changed to read “current,” to reflect that a new fishing year had begun. On page 10269, column 1, paragraph 680.21(d)(1) is amended by removing “subsequent fishing season” and adding in its place “current fishing season.”

NMFS is removing a 60 day notification deadline at Section 680.40(f)(3)(i). These regulations require that an application for PQS based on legal processing that occurred in an Eligible Crab Community (ECC), other than Adak, must include an affidavit signed by the applicant stating that notice has been provided to the ECC of the applicant's intent to apply for PQS 60 days prior to the end of the application period for receiving PQS or QS. The requirement that this notice be provided to the ECC 60 days prior to the end of the application period is being removed. The application period was specified in the Federal Register on March 8, 2004 (70 FR 11194). The application period ends on June 3, 2005. The date 60 days prior to the end of the application period is April 4, 2005.

NMFS is removing a similar 60 day notification deadline at Section 680.40(f)(3)(ii). These regulations require that an application for PQS based on legal processing that occurred in the Gulf of Alaska north of a line at 56°20′ N. lat. must include an affidavit signed by the applicant stating that notice has been provided to the City of Kodiak and Kodiak Island Borough of the applicant's intent to apply for PQS 60 days prior to the end of the application period for receiving PQS or QS. The requirement that this notification must have been provided to the ECC 60 days prior to the end of the application period is being removed.

The notification deadline was intended to ensure that potential PQS holders contacted ECCs in a timely fashion so that right of first refusal contracts specified under section 313(j) of the Magnuson-Stevens Act could be completed among the ECC entities selected by the ECCs and PQS holders prior to the end of the application period and the issuance of PQS. This deadline would unduly restrict potential PQS holders and contravenes the Magnuson-Stevens Act as amended by Congress in the Consolidated Appropriations Act of 2004 (Pub. L. No. 108-199). The 60- day deadline provided in the final rule is not specified in the Magnuson-Stevens Act amendment and nothing in that amendment would limit the ability of potential PQS holders to receive PQS if notice of the intent to apply for PQS is not provided. This notification deadline was not intended to serve as a mechanism to preclude the ability of potential PQS holders to receive PQS if they did not meet the notification deadline. This correction must be made prior to the end of the application period (June 3, 2005).

Under the final rule regulatory text, NMFS is concerned that the use caps could be interpreted in a way that could allow substantially more consolidation than the Council intended, and more specifically, it is not consistent with the preamble language where NMFS makes a specific reference to affiliation. This final rule corrects the wording to be more specific. On page 10288, column 2, paragraph 680.42(a)(4)(iii) is amended by removing “A non-individual person that holds PQS would be limited to a QS and IFQ cap that would be calculated based on the sum of all QS or IFQ held by that PQS holder and all QS or IFQ held by any entity in which that PQS holder has a 10 percent or greater direct or indirect ownership interest.” and adding in its place “A non-individual person that holds PQS, and all affiliates of that person, is limited to a QS and IFQ use cap that is calculated based on the sum of all QS or IFQ held by that PQS holder and all QS or IFQ held by any affiliate of the PQS holder.”

On page 10288, column 3, paragraph 680.42(b)(3)(iii) is amended by removing “A person that holds PQS would be limited to a PQS use cap that would be calculated based on the sum of all PQS held by that PQS holder and all PQS held by any entity in which that PQS holder has a 10 percent or greater direct or indirect ownership interest.” and adding in its place “A person that holds PQS is limited to a PQS use cap that is calculated based on the sum of all PQS held by that PQS holder and all PQS held by any affiliate of the PQS holder.”

On page 10288, column 3, paragraph 680.42(b)(3)(iv) is amended by removing “A person that holds IPQ would be limited to an IPQ use cap that would be calculated based on the sum of all IPQ held by that IPQ holder and all IPQ held by any entity in which that IPQ holder has a 10 percent or greater direct or indirect ownership interest.” and adding in its place “A person that holds IPQ is limited to an IPQ use cap that is calculated based on the sum of all IPQ held by that IPQ holder and all IPQ held by any affiliate of the IPQ holder.”

The following typographical and editorial corrections are made in this rule.

On page 10239, the ADF&G code for “Other Alaska” is amended by removing “UNK” and adding in its place “OAK.”

On page 10239, the NMFS code for “Other California” is amended by removing “1599” and adding in its place “599.”

On page 10294, column D, row 6, a “period” is added after the last word “fisheries.”

On page 10247, paragraph 680.5(a)(2)(i)(H) is amended by removing the reference to “§ 680.5(d)” and adding in its place “§ 680.5(e).”

On page 10247, paragraph 680.5(a)(2)(i)(I) is amended by removing the reference to “§ 680.5(e)” and adding in its place “§ 680.5(f).”

On page 10247, paragraph 680.5(a)(2)(i)(J) is amended by removing the reference to “§ 680.5(f)” and adding in its place “§ 680.5(g).”

On page 10247, column 2, paragraph 680.5(b)(4) is amended by removing reference to “paragraphs (c)(7), (c)(8), or (c)(9)” and adding in its place “paragraphs (d)(7), (d)(8), or (d)(9).”

On page 10248, column 2, paragraphs 680.5(d)(5) and (d)(6) are amended by removing reference to “paragraph (b)(5)” and adding in its place “paragraph (b)(7).”

On page 10248, column 2, paragraph 680.5(d)(7) is amended by removing reference to “paragraph (c)(11)” and adding in its place “paragraph (d)(9).”

On page 10248, column 2, paragraph 680.5(d)(8) is amended by removing reference to “paragraph (c)(7)” and adding in its place “paragraph (d)(7).”

On page 10248, column 3, paragraph 680.5(d)(9) is amended by removing reference to “paragraph (c)(7)” and adding in its place “paragraph (d)(7).”

On page 10260, column 3, paragraph 680.7(c)(1) is amended by removing “BSAI crab” and adding in its place “CR crab.”

On page 10260, column 3, paragraph 680.7(c)(2) is amended by removing “IFQ crab” and adding in its place “CR crab.”

On page 10267, column 1, paragraph 680.20(h)(4)(iv) is amended by removing “would be” and adding in its place “will be.”

On page 10273, column 3, paragraph 680.23(g)(5)(iv) is amended by removing “paragraph (e)(3)” and adding in its place “paragraph (f)(3).”

On page 10281, column 1, paragraph 680.40(h)(4) is amended by removing “would be” and adding in its place “will be.”

On page 10281, column 2, paragraph 680.40(h)(5) is amended by removing “would be” and adding in its place “will be.”

On page 10287, column 3, paragraph 680.42(a)(2) is amended by removing reference to “(b)(1)(ii)” and adding in its place “(a)(1)(ii).”

On page 10287, column 3, paragraph 680.42(a)(2) is amended by removing reference to “(b)(3)” and adding in its place “(a)(3).”

On page 10288, column 2, paragraph 680.42(a)(5) is amended by removing reference to “paragraph (b)” and adding in its place “paragraph (a).”

Incorrect burden estimates for 4 of the Economic Data Reports (EDRs) were provided in the final rule, although the correct burden estimates are given in the individual EDRs and in the PRA support statement. On page 10231, column 3, the EDR burden estimates are corrected as follows: remove 25 hours for Catcher processor annual EDR and replace it with 12.5 hours; remove 15 hours for Catcher vessel annual EDR and replace it with 7.5 hours; remove duplicate phrase “15 hours for Catcher vessel annual EDR;” remove 15 hours for the Stationary crab floating processor historical EDR and replace it with 20 hours; remove 15 hours for the Stationary crab floating processor annual EDR and replace it with 10 hours; remove 15 hours for Shoreside crab processor historical EDR and replace it with 20 hours. and remove 15 hours for Shoreside crab processor annual EDR and replace it with 10 hours.

The Administrator, Alaska Region, NMFS (Regional Administrator), has determined that this final rule is necessary for the conservation and management of the BSAI crab fisheries. The Regional Administrator also has determined that this final rule is consistent with the Magnuson-Stevens Act and other applicable laws.

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

Because prior notice and opportunity for public comment are not required for this rule by 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. , are inapplicable.

Pursuant to 5 U.S.C.553(b)(B), the Assistant Administrator for Fisheries, NOAA (AA) finds good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable, unnecessary, and contrary to the public interest. Through this action, NOAA seeks to ensure that the final rule conforms to the statutory requirements and intent of the Program, provide clarification regarding the Program's regulatory requirements and correct minor technical errors. Prior notice and an opportunity for public comment on this action would be impracticable, unnecessary, and contrary to the public interest for the following reasons. First, corrections to ensure the rule's conformance with the Program's statutory requirements are non-discretionary. As such, prior notice and an opportunity for public comment are unnecessary as the agency has no choice but to ensure its regulations are consistent with the statute. Second, corrections and clarifications to ensure the rule's compliance with the intent of the Program must be made immediately in order to provide the regulated community with adequate and accurate information to, among other things, apply for participation in the Program prior to the closing of the application date (June 3, 2005). Prior notice and an opportunity for public comment on these measures are impracticable and contrary to the public interest because the time necessary to provide such procedures would lead to the realization of the very harm sought to be avoided by this rule. In contrast, waiving those procedures does not affect the eligibility of those otherwise eligible under the regulations as originally promulgated and ensures that all parties who might be eligible are aware of that fact prior to the close of the application period. Finally, the editorial changes made by this rule are non-substantive. As a result, prior notice and an opportunity for comment on these changes are unnecessary.

The non-substantive changes made by this rule are not subject to the 30-day delay in effective date requirement of 5 U.S.C. 553(d). With respect to those substantive changes made by this rule, the AA also finds good cause to waive the 30-day delay in the effective date of under 5 U.S.C. 553(d)(3). The waiver of the 30-day delay in effective date requirement of 5 U.S.C. 553(d) is necessary to provide the regulated community with timely, adequate and accurate information to, among other things, apply for participation in the program prior to the closing of the application date (June 3, 2005). A 30-day delay in the effective date of this notice would lead to the realization of the very harm sought to avoided by this rule. Waiving the 30-day delay in effective date requirement does not effect the eligibility of those otherwise eligible under the regulations as originally promulgated and ensures all parties who might be eligible are aware of that fact prior to the close of the application period.