The Freedom of Information Act (FOIA) grants individuals the right to seek access to agency records and the right to appeal an initial agency denial of access to the requested records. The Privacy Act (PA) allows an individual to request records filed under his or her name, or personal identifier, and to appeal a denial of access to the records.

On April 27, 2004 (69 FR 22737), a notice of proposed rulemaking to amend 10 CFR part 9, subpart A, Freedom of Information Act Regulations, and subpart B, Privacy Act Regulations was published with a request for public comment by July 12, 2004.

The final rule amends several provisions. In January 2001, the Commission announced a reorganization that directed the Chief Information Officer (CIO) to report to the Executive Director for Operations (EDO). To conform with this reporting relationship, the appellate authority, previously delegated to the Secretary of the Commission to serve as the appellate official for denials of requests for FOIA fee waivers and requests for expedited processing of FOIA CArequests, has been reassigned to the EDO or a Deputy EDO. Also, the Executive Assistant to the Secretary of the Commission has been designated the initial denying official for records located in the Office of the Commissioners, Office of the Secretary, and with Advisory Committees because the Assistant Secretary position was abolished.

This final rule establishes agency procedures for predisclosure notification to submitters of confidential financial and commercial information.

The final rule also updates provisions relating to the location of publicly available NRC records, deletes the reference to the Chief Information Officer designating the FOIA/PA Officer, and makes several clarifications: where to send requests and appeals; how to establish an account with the PDR reproduction contractor; how to obtain access to copyrighted information; applicability of the independent determination made by the FOIA/PA Officer; and that failure of a requester to pay FOIA fees billed by another Federal agency may be a basis for not processing a request. The final rule makes several changes in the PA regulations. Reference to a specific Executive Order number that establishes criteria for classifying information has been deleted. A uniform approach for referral of PA records under the control of another Federal agency has been established. The final rule also removes the PA fee waiver provision because it is not needed. Readers are referred to the NRC Web site to find the particular exemptions applicable to a specific PA System of Records.

The NRC received comments from one individual and three organizations. The individual's comment related to nuclear weapons and was not within the scope of this rule. The other comments relate to § 9.28, a new provision that implements Executive Order 12600, issued June 23, 1987, and requires agencies to implement, by regulation, procedures for predisclosure notification to submitters of confidential business and financial information.

One commenter suggested that the notice of opportunity to object to NRC's initial disclosure determination provided in § 9.28(a) should specify the grounds on which the agency based its determination. Often, NRC's initial determination does provide the basis for its determination. However, in some cases, the reason NRC gives initial notice is that the agency does not have an adequate record to make a determination. In many of these cases documents marked or believed to contain trade secrets or confidential commercial or financial information have been in NRC files for many years, thus the basis for continued withholding from public disclosure may no longer be applicable. In these cases, NRC's initial notice often seeks additional information on which to base a determination. Language has been added to § 9.28(a) to clarify that some initial notices are for the purpose of obtaining information to support an agency determination.

Several commenters raised concerns regarding the time allowed for submitters to respond to NRC notices. Several requested that extensions be allowed. In response to these comments, § 9.28(b) has been changed to allow 30 calendar days to respond to the NRC notice, rather than the 15 days allowed in the proposed rule. Also, § 9.28(c)(3) has been changed to state that, should NRC deny the submitter's request for nondisclosure and decide to disclose the information, the disclosure date set by NRC would be 30 calendar days from the NRC's notice to the submitter, subject to a determination by the Commission that a shorter period of time to respond is necessary in a particular instance. The proposed rule stated it would be a “reasonable period of time.”

Several commenters raised issues relating to withdrawal of information when NRC disagreed with a submitter's claim that the information was a trade secret or confidential commercial or financial information or was voluntarily submitted, and to eliminate the balancing provision in 10 CFR 2.390. These suggestions have not been adopted. These same comments were received by the Commission in response to a proposed rule amending the predecessor to 10 CFR 2.390, 10 CFR 2.790 issued November 23, 1992 (57 FR 61013). The agency thoroughly discussed its reasons for rejecting these suggestions in its response to comments to a revised proposed rule (66 FR 52721; October 17, 2001) and its publication of the final rule (68 FR 18836; April 17, 2003).

A commenter suggested that § 9.28(b) be changed to ensure that the NRC considers information furnished after the NRC-imposed deadline, but before NRC makes a final determination, if practicable. The agency does not believe this change is necessary. Section 9.28(b), the provision that allows the NRC FOIA/PA Officer to grant extensions, gives an adequate opportunity for the submitter to submit information after the initial response date and have it considered by the NRC.

Another commenter suggested that the agency provide an appeal provision if the agency decides to release information a submitter claims to be trade secrets or confidential commercial or financial information. The NRC does not believe that an appeal provision is necessary because § 9.28(c)(3) states that, should NRC deny the submitter's request for nondisclosure and decide to disclose the information, the disclosure date set by NRC would be 30 calendar days from the NRC's notice to the submitter, unless the Commission determines that a shorter period of time to respond is necessary. However, the Commission would give the submitter sufficient time to seek judicial review if the submitter objected to the NRC's final decision.

Finally, a commenter suggested establishing a standard for determining when voluntarily submitted information is proprietary. This suggestion was not adopted because § 9.28 deals only with procedural provisions by which submitters of trade secrets or confidential commercial or financial information are given notice of agency determinations regarding this information once it has become subject to a FOIA request, and the submitters' rights with respect to agency determinations.

Section 9.8 includes a new § 9.28 in the list of sections that contain an information collection requirement that appears in paragraph (b).

Section 9.13 deletes the reference to the Chief Information Officer designating the FOIA/PA Officer.

Section 9.21(c)(5) reflects that an index to records made public in response to a FOIA request that are likely to become the subject of subsequent FOIA requests is publicly available at the NRC Web site. Section 552(a)(2)(E) of the FOIA requires that NRC make public an index to records made public in response to FOIA requests that are likely to become the subject of subsequent FOIA requests for substantially the same records.

Section 9.21(c)(6) addresses the requirement that the agency publish a statement in the Federal Register determining that publication of an index quarterly or more frequently is unnecessary. This section states that it is unnecessary to continue publishing the monthly index because members of the public may create their own indexes to records, including those in the categories required to be made public by 5 U.S.C. 552(a)(2), by using the search features in ADAMS. Section 5 U.S.C. 552(a)(2)(E) requires that the agency maintain and make available for public inspection and copying current indexes for records that 5 U.S.C. 552(a)(2) (A), (B), (C), and (D) require be made public and publish that index quarterly or more frequently, unless determined by order published in the Federal Register , that the publication would be unnecessary or impracticable. To meet this requirement, before making ADAMS publicly accessible, the NRC published “Documents Made Publicly Available” (NUREG-0540) on a monthly basis. With the public's ability to create their own indexes using ADAMS, the NRC determined that publication of the monthly index was no longer necessary.

Section 9.23 clarifies how a person may open an account with the NRC PDR reproduction contractor and states that payment is made directly to the PDR reproduction contractor. Also, § 9.23 clarifies that a request is not considered received under the FOIA until the date it is actually received by the Freedom of Information Act and Privacy Act Officer (FOIA/PA Officer).

Section 9.25(g) is renumbered and reorganized so that the responsibility of each denying official is described in separate paragraphs. Section 9.25(g)(2) reflects that the Executive Assistant to the Secretary of the Commission makes the initial determination to deny agency records in whole or in part under § 9.17(a) instead of the Assistant Secretary of the Commission. In addition, the Executive Assistant to the Secretary of the Commission is designated as the denying official for records for which an Advisory Committee has responsibility. Section 9.25(h) clarifies that the independent determination by the FOIA/PA Officer applies to records other than those records for which the initial disclosure determination is made by the Executive Assistant to the Secretary of the Commission, the General Counsel, or the Assistant Inspector General for Investigations.

Section 9.27(a) indicates that non-sensitive records disclosed in response to FOIA requests are made publicly available through the ADAMS.

Section 9.28 is added to establish procedures for predisclosure notification to submitters of confidential business and financial information. This implements the requirement of Executive Order 12600, that directs agencies to establish these procedures by regulation.

Section 9.29 is renumbered and reorganized so that each type of appeal or appellate official's responsibility is described in separate paragraphs. As a result of a reorganization, § 9.29(c) reflects that an appeal of a denial of a request for a waiver or reduction of fees, or denial of a request for expedited processing, is appealed to the EDO rather than to the Secretary of the Commission. Section 9.29(c) also reflects that the Executive Assistant to the Secretary of the Commission makes the initial determination to deny agency records in whole or in part under § 9.17(a) instead of the Assistant Secretary of the Commission. Also, an appeal continues to be directed to the appropriate appellate official, but is sent to the FOIA/PA Officer rather than to the appellate official to ensure that appeals directed to the EDO, Secretary of the Commission, and Inspector General are uniformly tracked.

Section 9.35(d) states that if a copyrighted publication is responsive to a FOIA request, the requester will be informed of the citation to the copyrighted publication and advised to contact the NRC's PDR to arrange to view the publication. This emphasizes the responsibility of the requester to make arrangements with the PDR staff to view a copyrighted publication.

Section 9.40(f) states that failure to pay applicable fees billed by another agency for a previous FOIA request is a basis for not processing a new request received from the same requester. This conforms NRC regulations to past NRC and government-wide practice.

As a result of a reorganization, § 9.43(d) reflects that an appeal of a denial of a request for a waiver or reduction of fees, or denial of a request for expedited processing, is appealed to the EDO rather than to the Secretary of the Commission.

Section 9.53(b) clarifies that a request is not considered received under the PA until the date it is actually received by the FOIA/PA Officer.

In § 9.54(a)(1) the term “photocopy” was changed to “copy” to ensure that copies made by any type of technology will be acceptable documentation.

Section 9.61(c)(1) eliminates the reference to a specific Executive Order number and states that the exempted information is information classified under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy. This is consistent with the statutory language that does not refer to a specific Executive Order number. Also, the reference to § 9.95 was deleted because changes to that section would delete references to specific exemptions.

Section 9.62 establishes a uniform approach for dealing with requests for PA records under control of another Government agency by indicating that the requester will be provided the name of the controlling agency, if known.

Sections 9.65 and 9.67 clarify that appeals of denials of access and Statements of Disagreement under the PA will continue to be directed to the appropriate appellate official, but are sent to the FOIA/PA Officer rather than to the appellate official to ensure that appeals directed to the EDO and to the Inspector General are uniformly tracked. Also §§ 9.65, 9.66, and 9.67 state that a PA appeal is not deemed received until it is actually received by the FOIA/PA Officer. Sections 9.65, 9.66, and 9.67 state that calendar days are used to calculate the time within which an appeal of denial of access to a record in a PA System of Records must be made and within which a Statement of Disagreement must be submitted.

Section 9.85 removes the PA fee waiver provision because it is not needed. The agency's practice is to provide a free copy of the information to the requester. It also notes that fees may be charged where the information is disclosed from PA Systems of Records under the FOIA. This normally occurs because an entire system of records containing criminal law enforcement records is exempt from being accessed under the PA exemption (j)(2). Thus, a request for records from such a system is processed under the FOIA, and the FOIA fee standards apply.

Section 9.95 indicates that specific exemptions applicable to each PA System of Record is found in the PA notice published biannually in the Federal Register and a current version is available at the NRC Web site, http://www.nrc.gov. This avoids the need to revise NRC regulations each time a change is made to an exemption section of a PA notice for a PA System of Record, and ensures that those who need this information will be able to obtain the most current information, with greater ease, from the NRC Web site.

The National Technology and Transfer Act of 1995 (Act), Pub. L. 104-113, requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with the applicable law or otherwise impractical. This rule reflects changes in officials who initially deny access to records or deny access to records whose initial denial has been appealed, and makes a change in an appellate official due to a reorganization. The rule establishes NRC procedures to give predisclosure notification to submitters of confidential business or commercial information, and makes a number of additional clarifying and conforming amendments. For these reasons, the Commission concludes that the Act does not apply to this rule.

The NRC has determined that this regulation is the type of action described in categorical exclusion 10 CFR 51.22(c)(1). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this final rule.

This final rule contains new or amended information collection requirements that are subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). These requirements were approved by the Office of Management and Budget, approval number 3150-0043.

The burden to the public for these information collections is estimated to average 10 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the information collection. Send comments on any aspect of these information collections, including suggestions for reducing the burden, to the Records and FOIA/Privacy Services Branch (T-5 F53), U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, or by Internet electronic mail to INFOCOLLECTS@NRC.GOV; and to the Desk Officer, Office of Information and Regulatory Affairs, NEOB-10202 (3150-0043), Office of Management and Budget, Washington, DC 20503.

The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting document displays a currently valid OMB control number.

A regulatory analysis has not been prepared for this rule because this rule is administrative in that it amends the regulations to reflect the current NRC organization and current responsibilities of NRC officials for denying access to requests for information and other requests made under the FOIA or PA. These amendments are considered minor, non-substantive amendments and will not have an economic impact on NRC licensees or the public.

In accordance with the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the NRC certifies that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect those who make requests for access to information under the provisions of the FOIA and PA. These are considered minor, non-substantive amendments and will not have an economic impact on NRC licensees or the public.

The NRC has determined that the backfit rule does not apply to this rule because this amendment does not involve any provisions that would impose backfits as defined. Therefore, a backfit analysis is not required.

In accordance with the Small Business Regulatory Enforcement Fairness Act of 1996, the NRC has determined that this action is not a major rule and has verified this determination with the Office of Information and Regulatory Affairs of OMB.

The FAA has determined that notice and opportunity for prior public comment hereon are impracticable because these procedures would significantly delay issuance of the design approval and thus delivery of the affected aircraft. 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.

Interested persons are invited to submit such written data, views, or arguments, as they may desire. Communications should identify the regulatory docket or notice number and be submitted in duplicate to the address specified above. All communications received on or before the closing date for comments will be considered by the Administrator. The special conditions may be changed in light of the comments received. All comments received will be available in the Rules Docket for examination by interested persons, both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerning this rulemaking will be filed in the docket. Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must include a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. CE226.” The postcard will be date stamped and returned to the commenter.

Tiger Aircraft made application to the FAA for a change to the Type Design for the Tiger AG-5B. The AG-5B is currently approved under TC No. A16EA. It is a single engine airplane originally added to TC No. A16EA on September 21, 1990. The proposed modification to the AG-5B incorporates a novel or unusual design feature, or the Garmin G1000 EFIS display system that may be vulnerable to HIRF external to the airplane.

Under the provisions of 14 CFR part 21, § 21.101, Tiger Aircraft must show that the Tiger AG-5B aircraft meets the original certification basis for the airplane, as listed on Type Data Sheet A16EA, the additional certification requirements added for the Garmin 1000, exemptions, if any; and the special conditions adopted by this rulemaking action. The regulations that were applied at a later amendment than the original certification basis for the AG-5B to accommodate the Garmin G1000 EFIS include 23.1301 at amendment 20, 23.1309 at amendment 49, 23.1311 at amendment 49, 23.1322 at amendment 43, and 23.1353 at amendment 49. Further details of the certification basis for the installation of the G1000 EFIS are available on request.

If the Administrator finds that the applicable airworthiness standards do not contain adequate or appropriate safety standards because of novel or unusual design features of an airplane, special conditions are prescribed under the provisions of § 21.16.

Special conditions, as appropriate, as defined in § 11.19, are issued in accordance with § 11.38 after public notice 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 the applicant apply for a supplemental type certificate to modify any other model already included on the same type certificate to incorporate the same novel or unusual design feature, the special conditions would also apply to the other model under the provisions of § 21.101.

Tiger Aircraft plans to incorporate certain novel and unusual design features into the AG-5B airplane for which the airworthiness standards do not contain adequate or appropriate safety standards for protection from the effects of HIRF. These features include an EFIS, which may be susceptible to the HIRF environment, that was not envisaged by the existing regulations for this type of airplane.

Protection of Systems from High Intensity Radiated Fields (HIRF): Recent advances in technology have given rise to the application in aircraft designs of advanced electrical and electronic systems that perform functions required for continued safe flight and landing. Due to the use of sensitive solid-state advanced components in analog and digital electronics circuits, these advanced systems are readily responsive to the transient effects of induced electrical current and voltage caused by the HIRF. The HIRF can degrade electronic systems performance by damaging components or upsetting system functions.

Furthermore, the HIRF environment has undergone a transformation that was not foreseen when the current requirements were developed. Higher energy levels are radiated from transmitters that are used for radar, radio, and television. Also, the number of transmitters has increased significantly. There is also uncertainty concerning the effectiveness of airframe shielding for HIRF. Furthermore, coupling to cockpit-installed equipment through the cockpit window apertures is undefined.

The combined effect of the technological advances in airplane design and the changing environment has resulted in an increased level of vulnerability of electrical and electronic systems required for the continued safe flight and landing of the airplane. Effective measures against the effects of exposure to HIRF must be provided by the design and installation of these systems. The accepted maximum energy levels in which civilian airplane system installations must be capable of operating safely are based on surveys and analysis of existing radio frequency emitters. These special conditions require that the airplane be evaluated under these energy levels for the protection of the electronic system and its associated wiring harness. These external threat levels, which are lower than previous required values, are believed to represent the worst case to which an airplane would be exposed in the operating environment.

These special conditions require qualification of systems that perform critical functions, as installed in aircraft, to the defined HIRF environment in paragraph 1 or, as an option to a fixed value using laboratory tests, in paragraph 2, as follows:

(1) The applicant may demonstrate that the operation and operational capability of the installed electrical and electronic systems that perform critical functions are not adversely affected when the aircraft is exposed to the HIRF environment defined below:

(2) The applicant may demonstrate by a system test and analysis that the electrical and electronic systems that perform critical functions can withstand a minimum threat of 100 volts per meter, electrical field strength, from 10 kHz to 18 GHz. When using this test to show compliance with the HIRF requirements, no credit is given for signal attenuation due to installation.

A preliminary hazard analysis must be performed by the applicant for approval by the FAA to identify either electrical or electronic systems that perform critical functions. The term “critical” means those functions, whose failure would contribute to, or cause, a failure condition that would prevent the continued safe flight and landing of the airplane. The systems identified by the hazard analysis that perform critical functions are candidates for the application of HIRF requirements. A system may perform both critical and non-critical functions. Primary electronic flight display systems, and their associated components, perform critical functions such as attitude, altitude, and airspeed indication. The HIRF requirements apply only to critical functions.

Compliance with HIRF requirements may be demonstrated by tests, analysis, models, similarity with existing systems, or any combination of these. Service experience alone is not acceptable since normal flight operations may not include an exposure to the HIRF environment. Reliance on a system with similar design features for redundancy as a means of protection against the effects of external HIRF is generally insufficient since all elements of a redundant system are likely to be exposed to the fields concurrently.

As discussed above, these special conditions are applicable to the Tiger Aircraft AG-5B. Should Tiger Aircraft apply at a later date for a supplemental type certificate to modify any other model on the same type certificate to incorporate the same novel or unusual design feature, the special conditions would apply to that model as well under the provisions of § 21.101.

This action affects only certain novel or unusual design features on one model of 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 these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. For this reason, and 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 upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for the AG-5B airplane modified by Tiger Aircraft, LLC to add the Garmin G1000 EFIS system.

1. Protection of Electrical and Electronic Systems from High Intensity Radiated Fields (HIRF). Each system that performs critical functions must be designed and installed to ensure that the operations, and operational capabilities of these systems to perform critical functions, are not adversely affected when the airplane is exposed to high intensity radiated electromagnetic fields external to the airplane.

2. For the purpose of these special conditions, the following definition applies: Critical Functions: Functions whose failure would contribute to, or cause, a failure condition that would prevent the continued safe flight and landing of the airplane.

This amendment adopts a new AD for Sikorsky Model S-92A helicopters that have MGB lubrication/scavenge pump, part number (P/N) 92351-15800-101, with vespel spline adapter, P/N 1584000-1, installed. This action requires, before further flight, removing the two vespel spline adapters and replacing them with airworthy vespel spline adapters, and thereafter, replacing them at intervals not to exceed 50 hours time-in-service (TIS). This amendment is prompted by a report of a loss of oil pressure during a flight to an offshore oil rig. Subsequent investigation, which is continuing, reveals that the vespel spline adapter installed on the helicopter failed due to excessive wear. The actions specified in this AD are intended to prevent loss of lubrication to the MGB, which could cause failure of one or both engine input drives, or planetary gear to sun gear tooth mesh failure, resulting in loss of power to the rotor system and subsequent loss of control of the helicopter.

We have reviewed Sikorsky Aircraft Corporation Alert Service Bulletin (ASB) No. 92-63-001, dated April 1, 2005, which describes procedures for removing and replacing the vespel spine adapter. This AD differs from the manufacturer's ASB in that we are incorporating only the necessary portion of the Accomplishment Instructions of the ASB and do not require returning the replaced parts to the manufacturer, nor do we require providing a report to the manufacturer.

This unsafe condition is likely to exist or develop on other helicopters of the same type design. Therefore, this AD is being issued to prevent loss of lubrication to the MGB, which could cause failure of one or both engine input drives, or planetary gear to sun gear tooth mesh failure, resulting in loss of power to the rotor system and subsequent loss of control of the helicopter. This AD requires removing the left-hand and right-hand main lubrication/scavenge pumps to access the vespel spline adapters and removing and replacing the vespel spline adapters before further flight and thereafter, at intervals not to exceed 50 hours TIS. Accomplish the actions in accordance with the ASB described previously.

The short compliance time involved is required because the previously described critical unsafe condition can adversely affect the controllability of the helicopter. Therefore, the initial replacement is required before further flight, and the repetitive replacements are required at intervals not to exceed 50 hours TIS, both of which are very short time periods, and this AD must be issued immediately.

Since a situation exists that requires the immediate adoption of this regulation, it is found that notice and opportunity for prior public comment hereon are impracticable, and that good cause exists for making this amendment effective in less than 30 days.

We estimate that this AD will affect 4 helicopters of U.S. registry. Replacing both vespel spline adapters will take approximately 3 work hours to accomplish at an average labor rate of $65 per work hour. Required parts will cost approximately $350 for each of the two adapters, however, the manufacturer has stated that they will provide the replacement parts at no charge until the end of the warranty period for the vespel spline adapter. Based on these figures, we estimate the total cost impact of the AD on U.S. operators to be $2,180, assuming that one vespel spline adapter that is not covered by manufacturer's warranty is replaced on each helicopter.

This AD is a final rule that involves requirements that affect flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to submit any written data, views, or arguments regarding this AD. Send your comments to an address listed under ADDRESSES. Include “Docket No. FAA-2005-21373; Directorate Identifier 2005-SW-13-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the AD. We will consider all comments received by the closing date and may amend the AD in light of those comments.

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

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.

Boeing advises that, since 1993, it has received 17 reports of cracks, loose and broken bolts, and shim migration in the joint between the aft torque bulkhead and the strut-to-diagonal brace fitting on Boeing Model 757-200 series airplanes. Those conditions, if not corrected, could result in damage and consequent loss of the strut and engine from the airplane.

On May 25, 2004, we issued AD 2004-12-07, amendment 13666 (69 FR 33561, June 16, 2004). That AD applies to Boeing Model 757 series airplanes, line numbers 1 through 735 inclusive, equipped with Rolls Royce RB211 engines.

That AD requires modification of the nacelle strut and wing structure; and inspections for loose/missing fasteners of certain aft bulkhead fasteners, proper alignment of the middle gusset of the inboard side load fitting, cracking of certain fastener holes; and corrective action if necessary. That AD cites various revision levels of Boeing Service Bulletin 757-54-0035 as the appropriate source of service information for the required actions.

That AD also mandated inspections of the 20 fasteners that are subject to this new AD. The threshold for those initial inspections is 15,000 total flight cycles. We have received reports of missing or loose fasteners in the affected joint as low as approximately 7,500 total flight cycles. In addition, that AD mandated inspections of the 20 fasteners of airplanes modified in accordance with Boeing Service Bulletin 757-54-0035 (original), but did not mandate inspections for airplanes modified in accordance with Revisions 1 or 2 of that service bulletin or airplanes that had been modified in production. Loose or missing fasteners have been found on airplanes with all versions of the modification.

The actions required by that AD were intended to prevent fatigue cracking in primary strut structure and consequent reduced structural integrity of the strut, but based on this service experience, we have concluded that the inspection requirements of that AD are not adequate.

We have reviewed Boeing Service Bulletin 757-54A0047, Revision 1, dated March 24, 2005. The service bulletin describes procedures for repetitive detailed inspections of the shim installation between the vertical flange and bulkhead. Specifically, the service bulletin provides procedures to:

• Inspect for damaged sealant around the shim;

• Inspect for signs of shim movement;

• Measure the horizontal and vertical movement of the shim from the installed position to determine the total cumulative movement of the shims;

• Inspect for signs of movement of the four fasteners in the vertical flange; and

• Detect signs of damaged paint and/or sealant or signs of movement of the 16 fasteners that hold the bulkhead assembly to the horizontal flange of the strut-to-diagonal brace fitting.

The service bulletin also describes four different interim repairs, depending on the amount of shim movement revealed during the inspections. The various interim repair actions include doing an eddy current inspection of the fastener holes for cracks, for which the service bulletin recommends contacting the manufacturer for repair instructions; replacing the shims with new shims; oversizing the holes and replacing discrepant fasteners with oversize fasteners; and applying sealant/primer on the shim of the vertical flange.

For airplanes modified in accordance with Service Bulletin 757-54-0035, the compliance time for the initial inspection is 6,000 flight cycles/36 months after the modification, with a grace period of 3,000 flight cycles/18 months. For unmodified airplanes, the compliance time is 90 days. The repetitive intervals range from 6,000 to 9,000 flight cycles/36 to 54 months. Interim repairs are due before further flight after a positive finding.

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

The unsafe condition described previously is likely to exist or develop on other airplanes of the same type design. Therefore, we are issuing this AD to detect and correct cracks, loose and broken bolts, and shim migration in the joint between the aft torque bulkhead and the strut-to-diagonal brace fitting. These conditions could result in damage to the strut and consequent separation of the strut and engine from the airplane. This AD requires accomplishing the actions specified in the service information described previously, except as discussed below.

The service bulletin specifies compliance times relative to the issue date of the service bulletin; this AD requires corresponding compliance times relative to the effective date of the AD.

The service bulletin specifies that you may contact the manufacturer for instructions on how to repair certain conditions, but this proposed AD would require you to repair those conditions using either a method that we approve, or data that meet the certification basis of the airplane and have been approved by an Authorized Representative for the Boeing Delegation Option Authorization Organization whom we have authorized to make those findings.

For Group 2 airplanes, the service bulletin specifies an inspection threshold relative to the date of issuance of the “original Airworthiness Certificate * * *” For these same airplanes, however, this AD requires an inspection threshold relative to the date of issuance of the “original standard airworthiness certificate * * *” We find that the addition of the term “standard” will establish this date with certainty.

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

This AD is a final rule that involves requirements that affect flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to submit any relevant written data, views, or arguments regarding this AD. Send your comments to an address listed under ADDRESSES. Include “Docket No. FAA-2005-21358; Directorate Identifier 2005-NM-088-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the AD. We will consider all comments received by the closing date and may amend the AD in light of those comments.

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

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

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

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

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

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

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

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

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

The FAA proposed to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) with an AD to supersede AD 2003-14-04, amendment 39-13223 (68 FR 41063, July 10, 2003). The existing AD applies to certain Boeing Model 737-200, 737-300, 737-400, 737-500, 737-600, 737-700, 737-800, 737-900, 757-200, and 757-300 series airplanes; and McDonnell Douglas Model DC-10-10F, DC-10-30, DC-10-30F, DC-10-40, MD-10-30F, MD-11, and MD-11F airplanes. The proposed AD was published in the Federal Register on September 3, 2004 (69 FR 53848), to continue to require modification of the reinforced flight deck door. The proposed AD would also expand the applicability of the existing AD and require other actions related to the reinforced flight deck door. These other actions include modifying the door, inspecting and modifying wiring in the area, and revising the maintenance program to require more frequent testing of the decompression panels of the flight deck door.

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

One commenter supports the intent and language of the proposed AD.

A second commenter supports the proposed AD, provided that an adequate supply of parts is available for the modification to be accomplished within the proposed 18-month compliance time.

C&D Aerospace has indicated that they will be able to supply an adequate number of parts during the proposed compliance time. We have not changed the AD in this regard.

One commenter does not support reducing the interval for the repetitive functional test of the decompression panels of the flight deck door, which would be required by paragraph (i) of the proposed AD. (Paragraph (i) of the proposed AD would require revising the FAA-approved maintenance inspection program to include the information in C&D Aerospace Report CDRB22-69, Revision E, dated November 8, 2002. Revision E of that report reduces the repetitive interval for functional testing of the decompression panels of the flight deck door.) The commenter states that the proposed AD does not state a justification for a reduction in the testing intervals. The commenter states that the current inspection interval is sufficient. The commenter recommends that we gather and review more operational data before we increase the testing interval.

We do not concur. Our decision to require incorporating Revision E of C&D Aerospace Report CDRB22-69, and the increased testing frequency specified in that document, is based on analysis by the manufacturer, not on in-service findings. Testing of the decompression panels has been required only for a short time, and few inspections have been accomplished. For this reason, a lack of detected failures would not justify maintaining the current inspection interval. We also note that reinforced flight deck doors delivered after November 8, 2002 (the issue/approval date of Revision E of C&D Aerospace Report CDRB22-69), are already subject to the reduced repetitive testing interval. We have not changed the final rule in this regard.

One commenter requests that we do not require strengthening the smoke screen on the flight deck door's decompression panels. The commenter states that this action is not cited in the proposed AD, and no service bulletin has been issued to support the strengthening of the smoke screen.

We do not agree. We find that it is necessary to require strengthening of the smoke screen on the flight deck door's decompression panels. This action is included in the modification required by paragraph (j) of this AD. The rationale for this decision is stated in the “Actions Since Existing AD Was Issued” section of the proposed AD: “* * * strengthening the smoke screens will allow the smoke screens to close properly and prevent smoke from entering the flight deck in the event of a fire in the airplane. Smoke in the flight deck could hinder the flightcrew's ability to continue to fly the airplane safely.” The Relevant Service Information section of the proposed AD specifies that procedures for modifying the smoke screens are included in C&D Aerospace Service Bulletin B211200-52-02, Revision 2, dated September 29, 2003 (for certain McDonnell Douglas Model DC-10, MD-10, and MD-11 airplanes), and in C&D Aerospace Service Bulletin B251200-52-01, dated April 30, 2003 (for certain Model MD-11 airplanes). Table 3 of this AD references these service bulletins. We have not changed this AD in this regard.

One commenter requests that we omit from paragraph (j) of the proposed AD the proposed requirement to install a placard. The commenter points out that the service bulletins specified in Table 3 of the proposed AD for Boeing Model 737 and 757 series airplanes include instructions for installing placards to show that the service bulletin has been done. The commenter states that it has contacted C&D Aerospace and C&D Aerospace is unable to provide additional placards should the original one be lost or need replacement. The commenter is concerned that the proposed wording of the AD would require it to install and maintain the placards to be in compliance with the proposed AD.

We agree that installing the placard is not necessary to address the unsafe condition. We have revised paragraph (j) of this AD to state that, where the service bulletins referenced in Table 3 of this AD specify installing a placard to show that the service bulletin has been accomplished, this AD does not require that action.

One commenter does not support the proposed requirement in paragraph (l)(1) that would require reworking the wiring for the flight deck door. The commenter feels that the rework is not needed, even though the door manufacturer has provided information to modify the airplane. The commenter states that its established operational procedures, including but not limited to a pre-flight operational check of the flight deck door by the flightcrew, obviate the need for the proposed wiring rework. Moreover, the commenter states that other operational procedures make it unlikely that security would be adversely affected if we were to omit the requirement to rework the wiring.

We do not agree. As we stated in the proposed AD, we have determined that an unsafe condition exists related to certain wiring in the area of the flight deck door on affected airplanes. For an unsafe condition such as this one, we can better ensure long-term continued operational safety by requiring modifications or design changes to remove the source of the problem, rather than by requiring repetitive inspections or operational tests. Long-term inspections or tests may not provide the degree of safety necessary for the transport airplane fleet. This, coupled with a better understanding of the human factors associated with numerous repetitive inspections/tests, has led us to consider placing less emphasis on special procedures and more emphasis on design improvements. The requirement in this AD to rework wiring in the area of the flight deck door is consistent with these considerations. We have not changed the AD in this regard.

One commenter requests that we give credit for actions required by paragraph (j) of this AD that were accomplished in accordance with the issues of the service bulletins listed in the table below. The commenter states that the instructions for the modifications in these previous revisions are similar to the instructions in the service bulletins listed in Table 3 of the proposed AD.

(The pages of C&D Aerospace Service Bulletin B231001-52-02, Revision 3, are each dated February 7, 2003. However, the Revision Transmittal Sheet is dated March 7, 2003. Since Revision 2 of that service bulletin is dated February 20, 2003, we have determined that March 7, 2003, is the correct date for Revision 3 of the service bulletin.)

We concur with the intent of the commenter's request. Actions accomplished before the effective date of this AD in accordance with the applicable service bulletin revisions identified by the commenter are acceptable for compliance with the corresponding requirement of paragraph (j) of this AD. However, after the effective date of this AD, required actions must be accomplished in accordance with the applicable service bulletin identified in Table 3 of this AD. We have added a new paragraph (l) to this AD (and re-identified subsequent paragraphs accordingly) and have added Table 4 to this AD to give credit for actions accomplished before the effective date of this AD.

One commenter requests that we revise paragraph (l)(1) of the proposed AD (which is identified as paragraph (m)(1) of this AD) to require C&D Aerospace Alert Service Bulletin B221001-52A05, Revision 3, dated October 3, 2003. Paragraph (l)(1) of the proposed AD refers to C&D Aerospace Alert Service Bulletin B221001-52A05, Revision 2, dated June 19, 2003, as the appropriate source of service information for the actions required by that paragraph. The commenter also requests that we give credit for actions done in accordance with C&D Aerospace Alert Service Bulletin B221001-52A05, dated April 17, 2003; Revision 1, dated May 14, 2003; and Revision 2.

We concur with the intent of the commenter's request. The procedures in C&D Aerospace Alert Service Bulletin B221001-52A05, Revision 3, are similar to those in Revision 2 of that service bulletin. We have revised paragraph (m)(1) of this AD to require the rework of wiring be done in accordance with Revision 3 of the service bulletin. We have also revised paragraph (m)(1) to give credit for actions done before the effective date of this AD in accordance with the original issue, Revision 1, or Revision 2 of that service bulletin. However, only Revision 3 of the service bulletin is acceptable for actions accomplished on or after the effective date of this AD.

One commenter requests that we revise the proposed AD to correct incorrect references. The commenter notes that the Costs of Compliance section and Table 3 of the proposed AD refer to C&D Aerospace Service Bulletin B251200-52-01, dated April 30, 2003, as an “alert” service bulletin. The commenter points out that C&D Aerospace Service Bulletin B251200-52-01 was not released as an alert service bulletin. We have revised all references to this service bulletin in this AD to remove “alert.”

The commenter also notes that Table 1 does not refer to the correct supplemental type certificate (STC) that applies to Boeing Model 757 series airplanes. The commenter notes that the applicable STC number is ST01334LA. We have revised Table 1 of this AD accordingly.

One commenter requests that we revise Table 2 of the proposed AD to refer to C&D Aerospace Service Bulletin B211200-52-02, Revision 2, dated September 29, 2003, instead of Revision 1, dated June 3, 2003. The commenter notes that Revision 2 is the latest issue of that service bulletin.

We do not concur with this request. Table 2 of this AD restates the applicability of AD 2003-14-04 to establish which airplanes are subject to the actions required by paragraphs (f) and (g) of this AD. (Paragraphs (f) and (g) restate the requirements of AD 2003-14-04.) C&D Aerospace Service Bulletin B211200-52-02, Revision 1, was the issue referenced in the applicability of AD 2003-14-04. We note that paragraph (f)(3) of this AD, which requires accomplishment of certain actions in C&D Aerospace Service Bulletin B211200-52-02, references both Revisions 1 and 2 of that service bulletin. We have made no change in this regard.

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

There are about 3,423 airplanes of the affected design worldwide.

The following table provides the estimated costs for U.S. operators to comply with the currently required actions that this AD will continue to require, at an average labor rate of $65 per work hour.

The following table provides the estimated costs for U.S. operators to comply with the new actions that will be required by this AD, at an average labor rate of $65 per work hour.

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

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

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

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

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

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

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

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

What events have caused this AD? The Luftfahrt-Bundesamt (LBA), which is the airworthiness authority for Germany, recently notified FAA that an unsafe condition may exist on all GROB Model G120A airplanes. The LBA reports cracks found on the nose landing gear (NLG) swivel tube on one of the affected airplanes during routine maintenance.

What is the potential impact if FAA took no action? If not detected and corrected, cracks and defects in the nose landing gear assembly could cause the nose landing gear to fail. This failure could lead to a hard landing and/or loss of control of the airplane during landing operations.

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 all GROB Model G120A airplanes. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on April 13, 2005 (70 FR 19340). The NPRM proposed to require you to repetitively inspect the nose landing gear (NLG) assembly, paying special attention to the NLG swivel tube and the engine truss in the area of the NLG attachment, for cracks and damaged (defective) welding seams. The NPRM also proposed to require you to replace any cracked or defective part.

Is there a modification I can incorporate instead of repetitively inspecting the nose landing gear assembly? The FAA has determined that long-term continued operational safety would be better assured by design changes that remove the source of the problem rather than by repetitive inspections or other special procedures. With this in mind, FAA will continue to work with GROB to collect information and perform fatigue analysis in determining whether a future design change is feasible.

Was the public invited to comment? We provided the public the opportunity to participate in developing this AD. We received no comments on the proposal or on the determination of the cost to the public.

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 minor editorial corrections. We have determined that these minor corrections:

• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

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 6 airplanes in the U.S. registry.

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

The cost for replacing any cracked or defective part based on the results of the inspections will be covered under warranty by the manufacturer.

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-2005-20589; Directorate Identifier 2005-CE-12-AD” in your request.

FAA issued AD 99-11-13 (64 FR 29781, June 3, 1999), requiring inspections of the forward, aft, and auxiliary wing spars for cracks on Cessna Models 402C airplanes with repair or replacement as necessary. AD 99-11-13 also required the operator to report the results of the inspections to FAA. AD 99-11-13 resulted from an accident where the right wing of a Cessna 402C failed just inboard of the nacelle at Wing Station (WS) 87. Investigation revealed fatigue cracking of the forward main spar that initiated at the edge of the front spar forward lower spar cap. FAA determined the spar cap cracking could continue to develop over the life of the affected airplanes and issued AD 2000-23-01, Amendment 39-11971 (65 FR 70645, November 27, 2000), to require repetitive inspections of the forward, aft, and auxiliary wing spars for cracks on Cessna Models 402C airplanes with repair or replacement as necessary.

Accomplishment of the actions mandated by AD 2000-23-01 required following Cessna Service Bulletin MEB99-3, dated May 6, 1999.

Cessna analyzed the wing, including fatigue and crack growth analyses, on the affected airplanes. Analysis included:

Based on the analysis, Cessna found that the eddy current method will not find the crack until it is .03 inch longer than the critical crack length. When the crack reaches the critical length, it is not reliably detectable because it is under the head of the fastener. Once the main spar cap is severed, the remaining structure will no longer meet the residual strength requirements. Wing separation could then occur under loading conditions less than those established for the design limit load.

Cessna reported only one instance where use of the NDI eddy current procedure detected cracks. There are other reported instances where cracks were detected visually on the aft flange in the wheel well area. The access doubler flanges cover a large percentage of the forward spar flange, hampering the effectiveness of visual inspections.

To meet industry NDI standards, cracks need to be found on Cessna Models 402C and 414A airplanes through NDI inspection methods with a 90-percent probability of detection at a 95-percent confidence level.

Cessna's analysis indicates the probability and confidence levels are not being met. The FAA concurs.

We issued proposals to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include two ADs that would apply to Cessna Models 401, 401A, 401B, 402, 402A, 402B, 402C, 411, 411A, and 414A airplanes. These proposals (Docket Nos. 2002-CE-05-AD and 2002-CE-57-AD) published in the Federal Register as notices of proposed rulemaking (NPRMs) on May 15, 2003 (68 FR 26239 and 68 FR 26244). The NPRMs proposed the following:

• Docket No. 2002-CE-05-AD: applied to Cessna Models 401, 401A, 401B, 402, 402A, 402B, 411, and 411A airplanes and proposed to supersede AD 79-10-15 with a new AD that would require one of the following (depending on the aircraft configuration):

The FAA invited interested persons to participate in the development of these amendments during the original 75-day comment periods. We extended the comment periods for another 30 days and then reopened the comment periods for another 60 days. We received numerous comments on the NPRMs.

In addition, FAA held two public meetings: One on March 3 and 4, 2004, in Herndon, Virginia, and another on August 18, 2004, in Kansas City, Missouri. The public meetings allowed an open flow of communication among FAA, the public, and industry on issues related to the NPRMs.

After analyzing all information related to this subject, FAA decided not to issue the ADs as proposed, and that the best way to address the unsafe condition is for FAA, the public, and industry to develop alternative solutions to address the unsafe condition.

Therefore, FAA withdrew the two NPRMs and gathered the necessary information to address the situation. That information led to FAA's determination, at that time, to initiate AD action against the Models 401, 401A, 401B, 402, 402A, 402B, 411, and 411A airplanes; and not against the Models 402C and 414A airplanes. The plan was to address the action through the regular rulemaking process with a notice of proposed rulemaking.

In 2005, the FAA received reports of (and analyzed data from) cracks found in the wings of two Cessna Model 402C airplanes.

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

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

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

Logbook records indicated that both airplanes with cracked spars were in compliance with AD 2000-23-01. The FAA received a third report of another cracked spar found at WS 114 on one of the two Model 402C incident airplanes.

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

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

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

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

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

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

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

Cessna developed new inspection techniques (eddy current) for the forward spar that are more effective at detecting cracks before the structural integrity of the wing is compromised. These inspection techniques allow for longer intervals between repetitive inspections than in emergency AD 2005-05-51. Based on this, FAA issued AD 2005-05-52, Amendment 39-14022 (70 FR 13362, dated March 21, 2005).

However, based on the analysis and recent service history, the FAA has determined that the long-term operational safety of the Cessna airplanes addressed by AD 2005-05-52 can only be assured through the incorporation of a spar strap modification and long-term repetitive inspections. Since the Models 402C and 414A airplanes have a similar type design to that of Models 401, 401A, 401B, 402, 402A, 402B, 411, and 411A airplanes, FAA is also issuing AD 2005-12-12 to require the spar strap modification and long-term repetitive inspections on those airplanes.

What is the potential impact if FAA took no action? Wing spar cap failure caused by undetected fatigue cracks could result in loss of a wing with consequent loss of airplane control.

Is there service information that applies to this subject? Cessna has issued the following: Cessna Multi-engine Service Bulletin MEB02-5, Revision 2, dated August 2, 2004, and Service Kit SK402-47B, dated August 2, 2003.

This service information includes procedures for inspecting lower wing spar caps and incorporating a spar strap modification.

What has FAA decided? We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other products of this same type design.

Since the unsafe condition described previously is likely to exist or develop on other Cessna Aircraft Company Models 402C and 414A airplanes of the same type design, we are issuing this AD to detect and correct wing spar cap failure caused by undetected fatigue cracks. Such failure could result in loss of a wing with consequent loss of airplane control.

What does this AD require? This AD supersedes AD 2005-05-52 with a new AD that incorporates the actions in the previously-referenced service bulletins and retains the actions of AD 2005-05-52 until you do the modifications of this AD.

Why do the compliance times of this AD range between 400 hours TIS and 800 hours TIS? We have established the compliance times based on risk analysis that also allows for compliance scheduling. The compliance time range is based on total hours TIS, which will address those high-usage airplanes first.

We are issuing this AD as a final rule; request for comments instead of a notice of proposed rulemaking (NPRM). We have evaluated comments from the previous AD actions on this subject and the two public meetings as well as the incidents that have occurred since ( e.g. , the actions of Emergency AD 2005-05-52). Based on this, FAA has determined that addressing the unsafe condition with public comment prior to issuing this AD action is impracticable. The FAA will evaluate any new comments received and amend the AD as necessary.

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

Will I have the opportunity to comment before you issue the rule? This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to submit any written relevant data, views, or arguments regarding this AD. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-05-21177; Directorate Identifier 2005-CE-26-AD” in the subject line of your comments. If you want us to acknowledge receipt of your mailed comments, send us a self-addressed, stamped postcard with the docket number written on it; we will date-stamp your postcard and mail it back to you. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify it. If a person contacts us through a nonwritten communication, and that contact relates to a substantive part of this AD, we will summarize the contact and place the summary in the docket. We will consider all comments received by the closing date and may amend the AD in light of those comments.

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

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

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

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

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

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

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

We prepared a summary of the costs to comply with this AD (and 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 “AD Docket FAA-05-21177; Directorate Identifier 2005-CE-26-AD” in your request.

Reports of fatigue cracks of the wing spar lower cap areas caused FAA to issue AD 79-10-15, Amendment 39-3711 against Cessna Models 401, 401A, 401B, 402, 402A, 402B, 411, and 411A airplanes. AD 79-10-15 currently requires repetitive inspections of the right and left wing spar lower cap areas for fatigue cracks and wing spar cap repair or replacement as necessary.

Accomplishment of the actions mandated by AD 79-10-15 currently requires following Cessna Service Bulletin ME79-16, Revision 3, dated February 8, 1980.

AD 79-10-15 allows for the incorporation of Cessna Service Kit SK402-36 or SK411-56 on the front wing spar lower cap as terminating action for the repetitive inspections on the applicable wing.

In addition to AD 79-10-15, FAA issued AD 99-11-13 (64 FR 29781, June 3, 1999), requiring inspections of the forward, aft, and auxiliary wing spars for cracks on Cessna Models 402C airplanes with repair or replacement as necessary. AD 99-11-13 also required the operator to report the results of the inspections to FAA. AD 99-11-13 resulted from an accident where the right wing of a Cessna 402C failed just inboard of the nacelle at Wing Station (WS) 87. Investigation revealed fatigue cracking of the forward main spar that initiated at the edge of the front spar forward lower spar cap. FAA determined the spar cap cracking could continue to develop over the life of the affected airplanes and issued AD 2000-23-01, Amendment 39-11971 (65 FR 70645, November 27, 2000), to require repetitive inspections of the forward, aft, and auxiliary wing spars for cracks on Cessna Models 402C airplanes with repair or replacement as necessary. The Model 402C airplanes have a similar type design to that of the Models 401, 401A, 401B, 402, 402A, 402B, 411, 411A, and 414A airplanes.

Cessna analyzed the wing, including fatigue and crack growth analyses, on the affected airplanes. Analysis included:

The inspections required by AD 79-10-15 following Cessna Service Bulletin ME79-16, Revision 3, use a nondestructive inspection (NDI) surface eddy current method.

Based on the analysis, Cessna found that the eddy current method will not find the crack until it is .03 inch longer than the critical crack length. When the crack reaches the critical length, it is not reliably detectable because it is under the head of the fastener. Once the main spar cap is severed, the remaining structure will no longer meet the residual strength requirements. Wing separation could then occur under loading conditions less than those established for the design limit load.

Cessna reported only one instance where use of the NDI eddy current procedure detected cracks. There are other reported instances where cracks were detected visually on the aft flange in the wheel well area. The access doubler flanges cover a large percentage of the forward spar flange, hampering the effectiveness of visual inspections.

To meet industry NDI standards, cracks need to be found on Cessna Models 401, 401A, 401B, 402, 402A, 402B, 411, and 411A airplanes through NDI inspection methods with a 90-percent probability of detection at a 95-percent confidence level.

Cessna's analysis indicates the probability and confidence levels are not being met. The FAA concurs.

We issued proposals to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include two ADs that would apply to Cessna Models 401, 401A, 401B, 402, 402A, 402B, 402C, 411, 411A, and 414A airplanes. The proposals (Docket Nos. 2002-CE-05-AD and 2002-CE-57-AD) published in the Federal Register as notices of proposed rulemaking (NPRMs) on May 15, 2003 (68 FR 26239 and 68 FR 26244). The NPRMs proposed the following:

• Docket No. 2002-CE-05-AD: applied to Cessna Models 401, 401A, 401B, 402, 402A, 402B, 411, and 411A airplanes and proposed to supersede AD 79-10-15 with a new AD that would require one of the following (depending on the aircraft configuration):

• Docket No. 2002-CE-57-AD: applied to Cessna Models 402C and 414A airplanes and proposed to supersede AD 2000-23-01 with a new AD that would require you to:

The FAA invited interested persons to participate in the development of these amendments during the original 75-day comment periods. We extended the comment periods for another 30 days and then reopened the comment periods for another 60 days. We received numerous comments on the NPRMs.

In addition, FAA held two public meetings: One on March 3 and 4, 2004, in Herndon, Virginia, and another on August 18, 2004, in Kansas City, Missouri. The public meetings allowed an open flow of communication among FAA, the public, and industry on issues related to the NPRMs.

After analyzing all information related to this subject, FAA decided not to issue the ADs as proposed, and that the best way to address the unsafe condition is for FAA, the public, and industry to develop alternative solutions to address the unsafe condition.

Therefore, FAA withdrew the two NPRMs and gathered the necessary information to address the situation. That information led to FAA's determination, at that time, to initiate AD action against the Models 401, 401A, 401B, 402, 402A, 402B, 411, and 411A airplanes; and not against the Models 402C and 414A airplanes. The plan was to address the action through the regular rulemaking process with a notice of proposed rulemaking.

In 2005, the FAA received reports of (and analyzed data from) cracks found in the wings of two Cessna Model 402C airplanes. The Model 402C airplanes have a similar type design to that of the Models 401, 401A, 401B, 402, 402A, 402B, 411, 411A, and 414A airplanes.

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

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

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

Logbook records indicated that both airplanes with cracked spars were in compliance with AD 2000-23-01. The FAA received a third report of another cracked spar found at WS 114 on one of the two Model 402C incident airplanes.

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

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

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

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

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

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

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

Cessna developed inspection techniques (eddy current) for the forward spar that are more effective at detecting cracks before the structural integrity of the wing is compromised. These inspection techniques allow for longer intervals between repetitive inspections than in emergency AD 2005-05-51. Based on this, FAA issued AD 2005-05-52, Amendment 39-14022 (70 FR 13362, dated March 21, 2005). The inspection techniques addressed by AD 2005-05-52 for the Cessna Models 402C and 414A airplanes are similar to those required by AD 79-10-15 for the Models 401, 401A, 401B, 402, 402A, 402B, 411, and 411A airplanes.

However, based on the analysis and recent service history, the FAA has determined that the long-term operational safety of the Cessna airplanes addressed by both AD 2005-05-52 and AD 79-10-15 can only be assured through the incorporation of a spar strap modification and long-term repetitive inspections. Since Models 402, 401A, 401B, 402, 402A, 402B, 411, and 411A have a similar type design to that of Models 402C and 414A airplanes, FAA is also issuing AD 2005-12-13 to require the spar strap modification and long-term inspections on those airplanes.

What is the potential impact if FAA took no action? Wing spar cap failure caused by undetected fatigue cracks could result in loss of a wing with consequent loss of airplane control.

Is there service information that applies to this subject? Cessna has issued the following:

This service information includes procedures for inspecting lower wing spar caps and incorporating a spar strap modification.

What has FAA decided? We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other products of this same type design.

Since the unsafe condition described previously is likely to exist or develop on other Cessna Aircraft Company Models 401, 401A, 401B, 402, 402A, 402B, 411, and 411A airplanes of the same type design, we are issuing this AD to detect and correct wing spar cap failure caused by undetected fatigue cracks. Such failure could result in loss of a wing with consequent loss of airplane control.

What does this AD require? This AD supersedes AD 79-10-15 with a new AD that incorporates the actions in the previously referenced service bulletins.

Why do the compliance times of this AD range between 100 hours TIS and 800 hours TIS? We have established the compliance times based on risk analysis that also allows for compliance scheduling. Some of these airplanes utilize “for hire” operations and could accumulate as many as 200 hours TIS in a month. The compliance time range is based on total hours TIS, which will address those high-usage airplanes first.

We are issuing this AD as a final rule; request for comments instead of a notice of proposed rulemaking (NPRM). We have evaluated comments from the previous AD actions on this subject and the two public meetings as well as the incidents that have occurred since ( e.g. , the actions of Emergency AD 2005-05-52). Based on this, FAA has determined that addressing the unsafe condition with public comment prior to issuing this AD action is impracticable. The FAA will evaluate any new comments received and amend the AD as necessary.

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

Will I have the opportunity to comment before you issue the rule? This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to submit any written relevant data, views, or arguments regarding this AD. Send your comments to an address listed under ADDRESSES. Include “Docket No. FAA-05-21176; Directorate Identifier 2005-CE-25-AD” in the subject line of your comments. If you want us to acknowledge receipt of your mailed comments, send us a self-addressed, stamped postcard with the docket number written on it; we will date-stamp your postcard and mail it back to you. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify it. If a person contacts us through a nonwritten communication, and that contact relates to a substantive part of this AD, we will summarize the contact and place the summary in the docket. We will consider all comments received by the closing date and may amend the AD in light of those comments.

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

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

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

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

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

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

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

We prepared a summary of the costs to comply with this AD (and 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 “AD Docket FAA-05-21176; Directorate Identifier 2005-CE-25-AD” in your request.

The Direction Generale de L'Aviation Civile (DGAC), which is the airworthiness authority for France, notified us that an unsafe condition may exist on Turbomeca S.A. Arrius 2 B1, 2 B1A, 2 B1A-1, and 2 B2 turboshaft engines. The DGAC advises that a case of simultaneous loss of automatic control of the two Arrius 2 B1 engines occurred during a flight, on a Eurocopter Deutschland EC 135 helicopter. Simultaneous transition of both engines from automatic control to manual control could lead to subsequent loss of control of the helicopter. The engine control system's intolerance to the loss of steps on the fuel metering valve actuator causes the loss of automatic control. Loss of steps can lead to a FADEC FAIL indication of the full authority digital electronic control (FADEC) and cause the fuel flow metering valve to freeze up and transition to manual fuel flow control.

We have reviewed and approved the technical contents of Turbomeca Mandatory Service Bulletin (MSB) No. 319 73 2080, Update No. 1, MSB No. 319 73 2081, Update No. 1, MSB No. 319 73 2082, Update No. 1, and MSB No. 319 73 2090, all dated February 13, 2004. These MSBs describe procedures for upgrading the engine control system software. This upgrade is applied by either replacing the EECU or by uploading the software. This upgrade improves the engine control system's ability to detect loss of pitch tolerances, and ability to tolerate the loss of steps on the fuel metering valve actuator. The DGAC classified these MSBs as mandatory and issued airworthiness directive F-2004-017 R1, dated March 3, 2004, in order to ensure the airworthiness of these Turbomeca turboshaft engines in France.

These engine models are manufactured in France and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Under this bilateral airworthiness agreement, the DGAC kept the FAA informed of the situation described above. We have examined the findings of the DGAC, 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.

The unsafe condition described previously is likely to exist or develop on other Turbomeca S.A. Arrius 2 B1, 2 B1A, 2 B1A-1, and 2 B2 turboshaft engines of the same type design. We are issuing this AD to prevent simultaneous loss of automatic control of both engines and subsequent loss of control of the helicopter. This AD requires within 90 days after the effective date of the AD, simultaneously, on both engines of the helicopter, performing a onetime upgrade of the software version, by either replacing the EECU or by uploading software. You must use the service information described previously to perform the actions required by this AD.

Since an unsafe condition exists that requires the immediate adoption of this AD, we have found that notice and opportunity for public comment before issuing this AD are impracticable, and that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to send us any written relevant data, views, or arguments regarding this AD. Send your comments to an address listed under ADDRESSES . Include “AD Docket No. FAA-2005-21443; Directorate Identifier 2005-NE-08-AD” in the subject line of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify it.

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

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

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

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

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

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

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

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

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

We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES.

The FAA proposed to amend 14 CFR part 39 with a proposed airworthiness directive (AD). The proposed AD applies to TCM S-20, S-1200, D-2000, and D-3000 series magnetos equipped with impulse coupling assemblies. We published the proposed AD in the Federal Register on December 22, 2004 (69 FR 76632). That action proposed to require:

• An initial visual inspection of riveted-impulse coupling assemblies that have 100 or more hours time-since-new (TSN) or time-since-last-inspection (TSLI) on the effective date of the proposed AD, within 10 hours time-in-service (TIS) after the effective date of this AD, or

• An initial visual inspection of riveted-impulse coupling assemblies that have fewer than 100 hours TSN or TSLI on the effective date of the proposed AD, before accumulating 100 hours TSN or TSLI, and

• Repetitive inspections of riveted-impulse coupling assemblies within intervals of 100 hours TSLI.

• An initial visual inspection of snap-ring impulse coupling assemblies that have 450 or more hours TSN or TSLI on the effective date of the proposed AD, within 50 hours TIS after the effective date of the AD, or

• An initial visual inspection of snap-ring impulse coupling assemblies that have fewer than 450 hours TSN or TSLI before accumulating 500 hours TSN or TSLI, and

• Repetitive inspections of snap-ring impulse coupling assemblies within intervals of 500 hours TSLI.

• Replacing impulse coupling assemblies that fail the inspection.

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

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

One commenter requests that we not change the eligibility from the current AD. The commenter states that experience has shown that the current AD is preventing failures and there is no difference between the wear or reliability of the impulse coupling assemblies installed on one make and model of engine, or another.

We do not agree. Responses we received to the Airworthiness Concern Sheet and Special Airworthiness Information Bulletin from owners and operators, and the manufacturer's data, indicate that there is a significant difference in the wear and reliability of magnetos installed on Lycoming 540 series engines as compared with other engines. Based on these responses, we have appropriately reduced the inspection interval for magnetos with riveted-impulse coupling assemblies installed on Lycoming 540 series engines.

One commenter states that without the current AD, owners and operators will not have the manufacturer's recommended maintenance performed, and safety will suffer.

We do not agree. While a small percentage of operators may not voluntarily comply with the manufacturer's recommended maintenance, we anticipate virtually all will comply. The response to the Airworthiness Concern Sheet, Special Airworthiness Information Bulletin, and manufacturer's data, indicates the AD is only needed for the Lycoming 540 series engines. This action does not negate the 500-hour inspection recommended by TCM. That inspection is part of the total inspection program to ensure the continued airworthiness of the engine. Therefore, we anticipate that safety will not suffer.

To assist owners and operators, we have added the description of the magneto numbering system used for TCM S-20, S-1200, D-2000, and D-3000 series magnetos to the compliance section of the AD.

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

We estimate that this AD will affect about 4,200 magnetos installed on airplanes of U.S. registry. We also estimate that it will take about 1 work hour per magneto to perform the actions, and that the average labor rate is $65 per work hour. The reduced inspection interval will require doing the inspections about four times more often. Based on these figures, we estimate the total cost of the AD to U.S. operators to be $1,092,000.

Paragraph (d) of the current AD, AD 96-12-07, contains a paragraph pertaining to special flight permits. Even though this final rule does not contain a similar paragraph, we have made no changes with regard to the use of special flight permits to operate the airplane to a repair facility to do the work required by this AD. In July 2002, we published a new 14 CFR part 39 that contains a general authority regarding special flight permits and airworthiness directives; see Docket No. FAA-2004-8460, Amendment 39-9474 (69 FR 47998, July 22, 2002). Thus, when we now supersede ADs we will not include a specific paragraph on special flight permits unless we want to limit the use of that general authority granted in section 39.23.

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

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

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

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

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

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

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

We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES. Include “AD Docket No. 93-ANE-07-AD” in your request.

On October 21, 2003, the FAA published in the Federal Register a notice of proposed rule making to modify Class E airspace at Wray, CO (69 FR 32295). New RNAV GPS SIAPs at Wray Municipal Airport, Wray, CO, make it necessary to increase the controlled airspace.

Interested parties were invited to participate on this rule making proceeding by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace designations 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 part 71.1. The Class E airspace designations listed in this document will be published subsequently in that order.

This amendment to 14 CFR part 71 revises Class E airspace at Wray Municipal Airport, Wray, CO. New RNAV GPS SIAPs at Wray Municipal Airport make it necessary to increase the Class E airspace. This additional controlled airspace extending upward from 700 feet or more above the surface of the earth is for the containment and safety of IFR aircraft transitioning to/from the en route environment and executing these RNAV GPS SIAP procedures.

The FAA has determined that this regulation only involved 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 “signficant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

1. This Final Rule deletes from the Commission's regulations the requirement that the nuclear plant decommissioning trust fund report that public utilities furnish to the Commission each year must show all purchases and sales of trust fund investments. This Final Rule instead requires that public utilities must include in their annual trust fund report, only a summary amount for purchases of fund investments and a summary amount for sales of fund investments. All other requirements in the regulations pertaining to nuclear plant decommissioning trust funds remain in place, including maintaining records of each purchase or sale of a trust fund investment so that, as appropriate, the Commission may review them. These changes in the Commission's nuclear plant decommissioning trust fund regulations resulted from a review of the Commission's regulations conducted by the Commission's Information Assessment Team (FIAT) that was tasked to assess the Commission's information needs. The tasks identified to meet this mission included identifying all of the Commission's current information collections, through forms and filing requirements (electric, hydropower, natural gas, oil and general) and evaluating their original purposes and current uses, and proposing ways to reduce the reporting burden on industry through elimination, reduction, streamlining or reformatting of current collections. The modifications to the Commission's nuclear plant decommissioning trust fund regulations contained in this final rule will reduce the reporting burden on the electric industry, while simultaneously simplifying reports filed with and reviewed by the Commission.

2. On June 16, 1995, the Commission issued Order No. 580, 1 establishing requirements for the formation, organization, and operation of nuclear plant decommissioning trust funds (Fund) and for Fund investments. Order No. 580 established requirements for the organization and operation of the Fund, and for the particular investments which the Fund may make.

3. Order No. 580 provided, among other things, that a Fund must be an external Fund and that a Fund Trustee must be independent of the public utility, have a net worth of at least $100 million, exercise the care that a reasonable person would exercise in the same circumstances, keep accurate and detailed records, and open the Fund to inspection and audit.

4. Order No. 580 further provided that the Trustee may not invest in any securities of the public utility that owns the nuclear plant or in that public utility's affiliates, associates, successors or assigns and may only use the Fund to decommission the nuclear plant to which the Fund relates and to pay the administrative and other expenses of the Fund, including taxes. Public utilities are to deposit all decommissioning collections into the Fund at least quarterly and to refund all excess collections to customers in the manner that the Commission prescribes.

5. As relevant here, the public utility must submit to the Commission, by March 31 of each year, one original and three conformed copies of a financial report that shows for the previous calendar year: (a) The activity of the Fund during the period, including amounts received from the public utility, purchases and sales of investments, gains and losses from investment activity, disbursements from the Fund for decommissioning activity, and payment of Fund expenses, including taxes; and (b) Fund assets and liabilities at the beginning and end of the period (excluding the liability for decommissioning).

6. The intent of this Final Rule is to clarify exactly what information should be submitted in the annual financial report to the Commission. Many public utilities include in their yearly reports of Fund activity every purchase and sale transaction that the Fund engaged in over the course of the year. This practice results in trust fund reports that are hundreds, and sometimes thousands, of pages long. It is difficult, and sometimes impossible, to find pertinent information. Some of the computerized files that the public utilities are forwarding to the Commission from their Trustees are so large that the Commission cannot open them, or they take an inordinately long time to access. While it is important for public utilities (and the Trustees) to maintain complete records, it is not necessary that the Commission routinely receive this volume of information each year for each Fund.

7. The difficulty arises from the inclusion of the phrase “purchases and sales of investments” in 18 CFR 35.33(d)(2). What the Commission needs is typically not information on every individual transaction, but summaries of purchases and sales transactions of Fund investments. When describing the activity of the Fund during the reporting period, public utilities with nuclear plants should only report to the Commission the amounts that the Fund received from the public utility, the gains and losses from overall investment activity, disbursements from the Fund for decommissioning activity, payment of Fund expenses, including taxes, and the Fund assets and liabilities (excluding the liability for decommissioning) at the beginning and end of the reporting period. This is the information that the Commission routinely needs.

8. Accordingly, the Commission is deleting the phrase “purchases and sales of investments” from 18 CFR 35.33(d)(2) and substituting the requirement that public utilities must include in their filing a summary amount for purchases of Fund investments and a summary amount for sales of Fund investments.

9. The Commission is also adding an express requirement that, consistent with section 35.32(a)(7) of the Commission's regulations, 2 public utilities owning nuclear plants must maintain records of individual purchases and sales transactions until after decommissioning has been completed and any excess jurisdictional amounts have been returned to ratepayers in a manner that the Commission determines. Public utilities need not include these records in the yearly report furnished to the Commission. It was understood in Order No. 580 that the public utilities would maintain records of purchases and sales of Fund investments. 3 They must do this to administer the Fund prudently. The Commission is now expressly incorporating this requirement into its regulations. That is, the Commission will now expressly require that public utilities continue to maintain records of individual purchases and sales of investments. At any time, of course, the Commission can review these records to ensure that the Fund is conforming to the Commission's nuclear plant decommissioning trust fund guidelines. 4

10. Office of Management and Budget (OMB) regulations require OMB to approve certain information collection requirements imposed by agency rule. 5 Comments are solicited on the Commission's need for this information, whether the information will have practical utility, the accuracy of provided burden estimates, ways to enhance the quality, utility and clarity of the information to be collected, and any suggested methods for minimizing respondents' burden, including the use of automated information techniques. The information collection requirements for this final rule are contained in FERC-516, “Electric Rate Filings” (1902-0096).

11. This final rule clarifies the Commission's requirements regarding the organization and operation of Funds and the investment of Fund assets. The Commission estimates that the public reporting requirements for the information collection requirements at issue contained in this rule average two hours per response. Public utilities submit this information to the Commission on an annual basis. The Commission estimates that the number of respondents is 53. As there are an average of two responses per year by each affected public utility (a separate annual report is filed for each nuclear plant, and some respondents have interests in more than one nuclear plant), the annual burden associated with this information requirement is 212 hours. The burden estimate includes the time required to implement the revised standards, search existing data sources, gather and maintain the data needed, and complete and review the information.

12. As noted immediately above, the Commission currently receives reports from 53 companies. 6 The Commission estimates that, under its current rules, it takes four hours to prepare and submit a report. By reducing the content of the report from filing each purchase and sales transaction to filing summary amounts for purchases and sales of fund investments, this final rule reduces the amount of time necessary to prepare and submit a report from four to two hours. The estimates shown in the table below reflect the total burden that the final rule will impose.

1. The Federal Energy Regulatory Commission (Commission or FERC) is revising the “FERC Form No. 73, Oil Pipeline Service Life Data” which is used to collect service life depreciation data from oil pipeline companies. 1 This final rule will allow for filing in an Excel spreadsheet, eliminate the filing requirement for utility codes, which are no longer used by the Commission, and update the filing instructions to delete references to outdated filing formats. These modifications resulted from a review conducted by the Commission's FERC Information Assessment Team (FIAT) of the Commission's current reporting and information collections to evaluate their original purposes and current uses and to propose ways to reduce the reporting burden on industry through the elimination, reduction, streamlining or reformatting of current collections. The Commission's objectives in issuing this rule are to reduce the reporting burden on oil pipeline companies and to make it easier for the Commission to process the data used in the analysis of oil pipeline depreciation rates and service lives.

2. Commission jurisdiction over oil pipelines was transferred from the Interstate Commerce Commission (ICC) pursuant to sections 305 and 402 of the Department of Energy Organization Act (DOE Act)  2 and Executive Order No. 12,009. 3 The scope of this Commission's jurisdiction over oil pipelines includes the authority to regulate their rates and charges for the transportation of oil in interstate commerce, and the authority to establish valuations. Section 705(a) of the DOE Act provides that the rules and regulations relating to functions transferred to this Commission will continue in effect until modified by the Commission. Commission regulations governing oil pipeline depreciation accounting for carrier property are set forth in the General Instructions to Title 18 CFR Part 352. 4

3. Oil pipeline companies are required to submit depreciation information to the Commission pursuant to 1-8(b)(2) and 1-8(b)(3) of the General Instructions found at 18 CFR Part 352. These instructions require oil pipeline carriers to compute percentage rate studies for their depreciable property accounts, and to maintain records as to the service life and net salvage value of their property and property retirements.

4. The Commission uses the information reported via FERC Form No. 73 to conduct depreciation rate investigations of oil pipelines. The Commission also uses the information to determine appropriate oil pipeline service lives and book depreciation rates. 5 Oil pipeline companies use book depreciation rates to compute the depreciation portion of their operating expenses when determining their cost of service.

5. This rule eliminates certain data currently collected from oil pipeline companies by modifying the Filing Instructions to conform to modern data automation formats and oil pipeline identification protocols. The changes associated with FERC Form No. 73 will reduce the amount of time required by Commission Staff to process the data and reduce the reporting burden on affected pipelines.

6. The current Filing Instructions request that pipelines submit all data on magnetic computer tape. The revised Filing Instructions eliminate this outdated electronic format. The Commission has eliminated all references to magnetic tape from the filing instructions. In addition, the Commission has added an option to provide FERC Form No. 73 data using an Excel spreadsheet format.

7. The Commission has reduced the Filing Instructions from 20 to 14 pages primarily as a result of the removal of the magnetic tape filing requirements. In addition, the Commission has revised the definitions code sequences for the A1 and S1 Schedule's definitions and reformatted the sample layouts for Schedules A1 and S1 to make them clearer and easier to read. Lastly, the Commission has updated the Filing Instruction's address for submitting completed Form 73's.

8. The Commission is eliminating the requirement to submit utility codes. These codes were used in an analytical model previously used.

9. Office of Management and Budget (OMB) regulations require OMB to approve certain information collection requirements imposed by agency rule. 6 The Commission solicits comments on the Commission's need for this information, whether the information will have practical utility, the accuracy of provided burden estimates, ways to enhance the quality, utility and clarity of the information to be collected, and any suggested methods for minimizing respondents' burden, including the use of automated information techniques.

10. The Commission estimates that, on average, it will take respondents 40 hours per response and that approximately two percent of current oil pipelines would experience a change in status justifying a new depreciation schedule in any given year.

11. The estimate contained in the Final Rule for the time necessary to comply with the reporting requirement is an average. While such a submission may take more than 40 hours in some cases, we believe that in most instances compliance will take less time.

As a result of changes in the Final Rule, we anticipate a burden hour reduction of 30 percent.

Title: Oil Pipeline Data for Depreciation Analysis.

Action: Amend filing instruction requirements.

OMB Control No. 1902-0019.

Respondents: Businesses or other for profit.

Frequency of Responses: On occasion.

Necessity of Information: To satisfy the reporting requirement, the Commission expects respondents to submit a transmittal letter including a description of the oil pipeline facilities' change in status and a narrative explaining whether (and, if so how) this change in status reflects a departure from the characteristics relied upon by the Commission in originally granting oil pipeline companies depreciation schedule changes. This information assists the Commission in its determination of appropriate oil pipeline service lives and book depreciation rates.

Internal review: The Commission has reviewed the proposed amendment to its regulations to establish a reporting obligation for changes in status of oil pipeline facilities and has determined that these regulations are necessary to ensure the accurate calculation of oil pipeline service lives and book depreciation rates. These regulations conform to the Commission's plan for efficient information collection, communication, and management within the oil pipeline industry. The Commission has assured itself, by means of internal review, that there is specific, objective support for the burden estimates associated with the information/data retention requirements.

12. Interested persons may obtain information on the reporting requirements by contacting: Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, Attention: Michael Miller, Office of the Executive Director, phone: (202) 502-8415, fax: (202) 273-0873, e-mail: michael.miller@ferc.gov. Comments on the proposed requirements of the subject rule may also be sent to the Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503, Attention: Desk Office for the Federal Energy Regulatory Commission, phone: (202) 395-4650.

13. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment. 7 The Commission has categorically excluded certain actions from this requirement as not having a significant effect on the human environment. Included in the exclusion are rules that are clarifying, corrective, or procedural or that do not substantially change the effect of the regulations being amended. 8 This final rule is procedural in nature and therefore falls under this exception; consequently, no environmental assessment has been prepared for this rulemaking.

14. The Regulatory Flexibility Act of 1980 (RFA)  9 generally requires a description and analysis of final rules that will have significant economic impact on a substantial number of small entities. The Commission is not required to make such analyses if a rule would not have such an effect.

15. The Commission concludes that the final rule would not have such an impact on small entities. Based on past experience, most of the oil pipelines having changes in status that would likely trigger a filing under the amended regulations would be entities that do not meet the RFA's definition of a small entity. 10 Therefore, the Commission certifies that this final rule will not have a significant economic impact on a substantial number of small entities.

16. In addition to publishing the full text of this document in the Federal Register , the Commission provides all interested persons an opportunity to view and print the contents of this document via the Internet through the Commission's Home Page (http://www.ferc.gov) and in the Commission's Public Reference Room during normal business hours (8:30 a.m. to 5 p.m. eastern time) at 888 First Street, NE., Room 2A, Washington, DC 20426.

17. From the Commission's Home Page on the Internet, this information is available in eLibrary. The full text of this document is available in eLibrary both in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field.

18. User assistance is available for eLibrary and the Commission's Web site during our normal business hours. For assistance contact FERC Online Support at FERCOnlineSupport@ferc.gov or toll-free at (866) 208-3676, or for TTY, contact (202) 502-8659. E-mail the Public Reference Room at public.referenceroom@ferc.gov or 202-502-8371.

19. The Administrative Procedure Act (APA)  11 requires rulemakings to be published in the Federal Register . The APA also mandates that an opportunity for comment be provided when an agency promulgates regulations. However, notice and comment are not required under the APA when the agency for good cause finds that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. 12 The Commission finds that notice and comment are unnecessary to this rulemaking. As explained above, the Commission is merely clarifying the scope of its regulations regarding the reporting of information on oil pipeline facility service life. This clarification does not change existing law or policy. It merely interprets an existing regulation in order to reduce a filing requirement thereby reducing the reporting burden on the oil pipeline industry. Accordingly, this rule is effective August 15, 2005.

20. The Commission has determined, with the concurrence of the Administrator, Office of Information and Regulatory Affairs of the Office of Management and Budget, that this rule is not a “major rule” within the meaning of section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996. 13 The Commission will submit this Final Rule to both houses of Congress and the General Accounting Office. 14

21. These regulations are effective August 15, 2005.

On November 26, 2002, the President signed into law the Terrorism Risk Insurance Act of 2002 (Pub. L. 107-297, 116 Stat. 2322). The Act was effective immediately. The Act's purposes are to address market disruptions, ensure the continued widespread availability and affordability of commercial property and casualty insurance for terrorism risk, and to allow for a transition period for the private markets to stabilize and build capacity while preserving state insurance regulation and consumer protections. Title I of the Act establishes a temporary Federal program of shared public and private compensation for insured commercial property and casualty losses resulting from an act of terrorism, which as defined in the Act is certified by the Secretary of the Treasury, in concurrence with the Secretary of State and the Attorney General. The Act authorizes Treasury to administer and implement the Terrorism Risk Insurance Program, and to issue regulations and procedures. The Program provides a Federal reinsurance backstop for three years. The Program ends on December 31, 2005. Thereafter, the Act provides Treasury with certain continuing authority to take actions as necessary to ensure payment, recoupment, adjustments of compensation, and reimbursement for insured losses arising out of any act of terrorism (as defined under the Act) occurring during the period between November 26, 2002, and December 31, 2005.

Each entity that meets the definition of “insurer” (well over 2000 firms) must participate in the Program. The amount of the Federal share of compensation for an insured loss resulting from an act of terrorism is to be determined based upon insurance company deductibles and excess loss sharing with the Federal Government, as specified by the Act and the implementing regulations. An insurer's deductible increases each year of the Program, thereby reducing the Federal Government's share prior to expiration of the Program. An insurer's deductible is calculated based on a percentage of the value of direct earned premiums collected over certain statutory periods. Once an insurer has met its deductible, the Federal payments cover 90 percent of insured losses above the deductible, subject to an annual industry-aggregate limit of $100 billion.

Under the Act and regulations, “affiliates” are treated collectively as one insurer for purposes of calculating the insurer deductible for a Program Year. Treasury issued a proposed rule on insurer affiliations, with a request for comment, on January 18, 2005 (70 FR 2830). The proposed rule would have clarified subpart F of 31 CFR part 50, the claims procedures for insurers seeking the Federal share of compensation for insured losses. The proposed rule added new section 50.55, which provided that for purposes of subpart F, an insurer's affiliates for any Program Year are to be determined based on the insurer's circumstances as of the date of the first certified act of terrorism in that Program Year. This clarification was needed because affiliations of insurers may change over the course of a Program Year and there may be more than one certified act of terrorism in a Program Year. After careful consideration of comments on the proposed rule, Treasury is now issuing this final rule.

Treasury received one comment on the proposed rule from an ad hoc industry working group that included members from eight national property-casualty insurance trade associations, collectively representing insurers, reinsurers and producers. The commenter disagreed with the proposed rule, asserting that adoption of the “fixed” affiliate status approach would lead to unintended compliance and administrative consequences for the industry and Treasury in the event of multiple terrorist acts during a Program Year. The working group recommended that Treasury adopt a regulation that would: “(a) tie Treasury or insurer action ( e.g. , reporting, claim payment) pursuant to TRIA to an insurer's affiliate status as of the date of that action; and (b) determine an insurer's TRIA deductible based on affiliate status as of the date of each certified terrorism event in any given Program Year.”

Treasury appreciates the concerns raised by the commenter and has thoroughly reviewed the material provided. With the potential for changes in insurer affiliations during the year, an annual deductible presents implementation problems no matter how a final rule is constructed. However, the Act defines an insurer deductible on a Program Year basis. As further explained below in response to specific concerns, Treasury believes that, overall, fixing affiliations as of one event in a Program Year presents a more comprehensive solution to all of the potential implementation problems. After reviewing the comment provided, however, Treasury is modifying the proposed rule in certain respects to clarify and improve how the regulation would be applied. Specifically, the final rule provides that an insurer's affiliates are determined by the circumstances existing on the date of occurrence of the act of terrorism that is the first act of terrorism in a Program Year to be certified by the Secretary for that Program Year. In addition, based on the comment presented, Treasury intends to provide for enough flexibility in its administration of the claims and payment process to accommodate, where possible, particular insurer circumstances.

To assist in explaining its position, the commenter constructed several hypothetical scenarios which served to illustrate the concerns with the proposed rule.

1. The industry working group presented Treasury with an example to illustrate how deductible and Federal share calculations would be applied with its suggested approach to affiliations, i.e. , considered as of each certified act. In Treasury's view, the suggested approach of calculation of the deductible at each event essentially produces an approach that blends a “per event” methodology with a methodology based on insurer affiliations as of the last certified act of terrorism in a Program Year. As more specifically explained in (a)-(d) below, after careful review of the example, Treasury continues to believe that the first certified act of terrorism must be the point in time that establishes insurer affiliations.

(a) The working group's approach relies on Treasury having to assume how the Federal payments for a first event are distributed within the insurer group in order to determine the appropriate deductible applicable to the new configuration of affiliations as of a second event. Specifically, the example provided assumes that Federal payments are allocated among affiliates in proportion to their share of the total insured losses of their insurer group. This may not be the way payments are actually allocated.

(b) The example presents a simplified scenario where all claims from a first certified act of terrorism have been settled and paid prior to an insurer seeking the Federal share for claims arising from a second certified act. In a real situation it is much more likely that claims from the first event will continue to be submitted even as claims from the second event are presented. Thus, in such a scenario, it is unclear what deductible should be applied for losses arising out of the first event. Treasury anticipates that the administrative burden in processing such a mixture of claims exceeds the reasonable capabilities of the reporting and processing systems.

(c) The working group's approach shifts deductible amounts based on the direct earned premium for an individual insurer within an insurer group to another insurer group as affiliations change. The suggested methodology for determining the group deductible for the new affiliation at the time of a subsequent certified act of terrorism can lead to duplicative application of deductible amounts within a single Program Year. This is contrary to the Act's requirement of applying a single calendar year deductible to the insured losses of insurers.

(d) As noted above, the Act requires the application of a single calendar year deductible to the insured losses of each insurer. Since Treasury has no separate contracts with insurers, there is less flexibility in dealing with the allocations and calculations proposed by the commenter than what the commenter suggests. The working group's approaches to allocating the deductible and to calculating the Federal share seem more appropriate as items subject to negotiation in crafting the terms of a merger or acquisition agreement than a Federal rulemaking.

2. The working group noted that pursuant to the proposed rule, in a Program Year with multiple certified acts of terrorism, even a minimal first event involving insured losses for only one insurer would fix affiliations for the entire industry. The working group also noted that the order in which events are actually certified as acts of terrorism may be different than the order in which such events occurred. Consequently, the proposed rule could result in claims reporting and Federal payments being made under a set of affiliations that does not match the affiliations that were in place at the time of the first act of terrorism in a Program Year.

Treasury has extensively reviewed both of these concerns. Having concluded that calculating the insurer deductible and processing the Federal share of compensation requires insurer affiliations to be fixed at a single point in a Program Year, Treasury examined how, within that constraint, the commenter's two concerns could be addressed. To address the first concern, i.e. , minimal first event fixing affiliations for the entire industry, Treasury reconsidered the alternative discussed in the preamble of the proposed rule of establishing affiliations as of the first event for which an insurer, or any affiliates, actually had insured losses. In reexamining this alternative in conjunction with addressing the second concern, i.e. , the order in which acts of terrorism are certified may be different than the order in which the acts occur, it became apparent that crafting a final rule that would address both concerns raised by the working group resulted in an overly complex process for determining affiliations. Treasury has concluded that it is more important to clarify that the first certified act of terrorism will be based on the certification date, not the occurrence date of the underlying act giving rise to certification. This will allow for the expeditious processing of claims for the Federal share without having to depend on a certification being made for a prior terrorist event that may still be under investigation. For the final rule, Treasury has thus clarified the regulation to provide generally that an insurer's affiliations are determined by the circumstances on the date of occurrence of the act that is the first act of terrorism certified by the Secretary for the Program Year. This is illustrated in the following example.

A possible act of terrorism occurs in March for which investigations begin. In the meantime a second terrorist event occurs in September that is readily identifiable as an act of terrorism under the Act and is certified by the Secretary in October. The March event is certified by the Secretary in November. In this case, the first certified act used to determine affiliations for the Program Year would be the September terrorist event. Affiliations would be fixed for the entire Program Year as of the occurrence date of the act of terrorism in September.

3. The working group stated that the proposed rule would not treat insurers equitably because as affiliations change, the effective deductible for an insurer deviates from the Act's mandated 15 percent for Program Year 3. Treasury disagrees that the proposed or final rule results in inequitable treatment of insurers. The working group's example calculations, based on its hypothetical scenarios, purport to show that the proposed rule results in the insurer deductible deviating from the mandated 15 percent of “direct earned premium” (DEP) for a second act of terrorism. This point is based on the premise that the deductible can vary as of each event based on the affiliations at the time of each event. This is not possible with an annual deductible as mandated by the Act. The commenter's proposal would result in the re-computation of deductibles and payments for losses for the entire Program Year based on affiliations as of the last act of terrorism in the Program Year. The same logic used in the example could then be applied to the prior event to show that now the deductible in that first event deviated from the required 15 percent insurer deductible. Treasury's rule applies the deductible, set at 15 percent of DEP for the affiliated structure at the time of the first terrorism event, consistently throughout the Program Year.

4. The working group asserted that complications would arise from the proposed rule's impact on producers because disclosure requirements may have been met by sending the disclosures through producers. The commenter noted that the proposed rule's “fictional” affiliations could require an agent to assist an insurer in certifying compliance with the Act's notice requirements where the agent no longer has any legal relationship with the insurer. Treasury appreciates the concern raised by producers that they may be called upon to assist an insurer in certifying compliance. The issue that is raised, however, is not related to the Program's proposed treatment of affiliations, but is rooted in the fact that affiliations may change over time, even in the aftermath of a single event or independent of any event. Treasury expects an insurer to be able to certify that disclosures have been made and that records are available for audit, if necessary. Treasury has recognized that insurers may or may not carry out their disclosure responsibilities through producers. Whatever approach is taken is an insurer decision on how to comply with the Act's disclosure requirements. In any case, Treasury believes the decision to call upon producers to certify or otherwise document insurer compliance with the Program's disclosure requirements is a prerogative of the insurer.

The final rule adds new section 50.55 and provides that for the purposes of subpart F (Claims Procedures), an insurer's affiliates for any Program Year shall be determined by the circumstances existing on the date of occurrence of the act of terrorism that is the first act of terrorism in a Program Year to be certified by the Secretary. The final rule also includes a technical change to the definition of “affiliate” in section 50.5(c) to provide a cross-reference to section 50.55.

This final rule provides additional guidance to insurers on how affiliations will be viewed for purposes of calculating the insurer deductible under the Act and otherwise meeting requirements of subpart F. By clarifying insurer rights and obligations that were cited as concerns by the working group, this rulemaking makes available information relevant to insurers evaluating and addressing risks associated with corporate restructuring. Treasury recognizes that claim submissions and Federal payments for insured losses may continue for years following a certified act of terrorism. Consequently, over time, processing difficulties may arise from a change in an insurer's affiliation status whether or not more than one certified act of terrorism occurs in a Program Year. Within the scope of this rule and other constraints on Treasury in administering the claims process, Treasury will strive for ease of operations. This could, for example, involve recognition of alternative reporting structures where there is no impact on insurer deductibles and/or the amount of the Federal share of compensation owed to affected insurers. Treasury may make adjustments in its procedures, promulgate revised rules, or on a case-by-case basis enter into agreements with the involved parties to address administrative difficulties arising from changes in insurer affiliations once insured losses have been incurred.

Executive Order 12866, “Regulatory Planning and Review”. This rule is not a significant regulatory action for purposes of Executive Order 12866, “Regulatory Planning and Review,” and therefore has not been reviewed by the Office of Management and Budget.

Regulatory Flexibility Act. Pursuant the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. , it is hereby certified that the final rule will not have a significant economic impact on a substantial number of small entities. Treasury is required to pay the Federal share of compensation to insurers for insured losses in accordance with the Act. A condition of Federal payment is that the insurer must submit to Treasury, in accordance with procedures established by Treasury, a claim for payment and certain certifications. The Act itself requires all insurers receiving direct earned premium for any type of property and casualty insurance, as defined in the Act, to participate in the Program. This includes all insurers regardless of size or sophistication. The Act also defines property and casualty insurance to mean commercial lines of insurance without any reference to size or scope of the insurer or the insured. Accordingly, any economic impact associated with the proposed rule flows from the Act and not the proposed rule. The rule merely clarifies the point in time at which insurer affiliations are determined for purposes of the Program. A regulatory flexibility analysis is thus not required.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. The City of Biloxi has recently become responsible for maintenance of this bridge and upon initial inspection, discovered that remedial structural repairs must be done expediently to prevent the waterway from being obstructed. As a result, publishing an NPRM would be contrary to the public interest.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective in less than 30 days after publication in the Federal Register . The required repairs must be done expediently because there is a substantial risk that emergency breakdowns will occur, causing the waterway to be obstructed for lengthy periods of time.

The City of Biloxi has requested a temporary rule changing the operation of the bascule span drawbridge across the Tchoutacabouffa River, mile 8.0 at Cedar Lake, Harrison County, Mississippi. Recently, maintenance responsibility for the bridge was transferred from Harrison County to the City of Biloxi. City bridge engineers conducted an inspection of the bridge and found that the swing span of the bridge had numerous badly deteriorated steel structural members. In order to maintain the operation of the swing span in a safe, efficient manner, expedient remedial repair is needed. The contractor for the City of Biloxi plans to remove and replace existing structural members from June 27 through August 1, 2005. This will require closures of five days at a time. During the period between August 1 and September 23, 2005, the bridge will need to be closed to navigation to facilitate replacing steel members and adding additional steel members then balancing the swing span. During the period between September 23 and October 28, 2005, the contractor will sand blast and paint the entire structure. This rule allows the draw of the bridge to remain closed to navigation continuously, Monday through Friday from June 27 through October 28, 2005. It will open on signal with twenty-four hours notice every weekend during this period, except from August 1, 2005 through September 23, 2005 when it will open on signal with twenty-four hours notice every other weekend beginning with the weekend of August 13, 2005.

The bridge has a vertical clearance of 5 feet above mean high water in the closed-to-navigation position and unlimited in the open-to-navigation position. Bridge tender logs show that the bridge opens to pass navigation approximately four times per month during the summer and fall. The majority of vessels that require an opening of the draw are recreational vessels. Bridge tender logs show that during the period between June 27, 2004 and October 28, 2004, the bridge was opened only four times for commercial fishing vessels and none for tugs with tows. The City of Biloxi has contacted the primary waterway users of the waterway, including commercial users, and advised them of the planned closures. The City of Biloxi has indicated to the Coast Guard that the waterway users will be able to schedule their operations when the bridge will be able to open to pass marine traffic.

Presently, title 33, Code of Federal Regulations (CFR), part 117.685 states: The draw of the Cedar Lake Road Bridge over the Tchoutacabouffa River, mile 8.0, shall open on signal if at least twenty-four hours notice is given.

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).

There is not expected to be a significant impact due to the infrequency of vessel transits through the bridge. The City of Biloxi has contacted the users of the waterway who have indicated that they will be able to schedule their transits during the periods when the bridge will open to pass marine traffic.

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 temporary rule will not have a significant economic impact on a substantial number of small entities.

This rule may affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit through the Cedar Lake Road Bridge across the Tchoutacabouffa River during the closure. As stated above, there is not expected to be a significant impact due to the infrequency of vessel transits through the bridge. The City of Biloxi has contacted the users of the waterway who have indicated that they will be able to schedule their transits during the periods when the bridge will open to pass marine traffic.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency?s responsiveness to small business. If you wish to comment on actions by employees of the Coast 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 will not result in such an expenditure, we do discuss the effects of this rule elsewhere in the preamble.

This rule will not affect 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 cause 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 temporary rule is categorically excluded, under figure 2-1, paragraph (32)(e), of the Instruction, from further environmental documentation because it modifies an existing bridge operation regulation.

Regulatory Information

We did not publish a notice of rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. This safety zone is temporary in nature and limited time existed for an NPRM. Under 5 U.S.C. 553(d)(3), the Coast Guard also finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying this rule would be impracticable and contrary to public interest since immediate action is needed to minimize potential danger to the public during the boat parade.

Temporary safety zones are necessary to ensure the safety of vessels and spectators from the hazards associated with boat parades. Based on recent accidents that have occurred in other Captain of the Port zones, the Captain of the Port Buffalo has determined that boat parades in close proximity to other watercraft pose significant risks to public safety and property. The combination of large numbers of inexperienced recreational boaters, congested waterways and alcohol use, could easily result in serious injury or fatalities.

The Coast Guard is establishing a safety zone consisting of all navigable waters of Rochester Harbor and the Genesee River, Rochester, New York. The Coast Guard will notify the public in advance, by way of Ninth Coast Guard District Local Notice to Mariners, marine information broadcasts, and for those who request it from Marine Safety Office Buffalo, by facsimile (fax).

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed this rule 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 determination is based on the minimal time that vessels will be restricted from the zones, and all of the zones are in areas where the Coast Guard expects insignificant adverse impact to mariners from the zones” activation.

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.

This rule would affect the following entities, some of which might be small entities: The owners or operators of commercial vessels intending to transit a portion of an activated safety zone.

This safety zone would not have a significant economic impact on a substantial number of small entities for the following reasons: This safety zone is only in effect from 9 p.m. until 10 p.m. on the day of the event and vessel traffic can safely pass outside the safety zone during the event. In cases where traffic congestion is greater than expected and/or blocks shipping channels, traffic may be allowed to pass through the safety zone under a Coast Guard or assisting agency escort with the permission of the Captain of the Port Buffalo. Additionally, the Coast Guard has not received any negative reports from small entities affected during these displays in previous years.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Marine Safety Office Buffalo ( see ADDRESSES ).

This rule would call 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 this preamble.

This rule would 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 would not create an environmental risk to health or risk to safety that might disproportionately affect children.

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

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

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

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

We have analyzed this rule under Commandant Instruction M16475.1D, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f) and have made a preliminary determination 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, we believe that this rule should be categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction from further environmental documentation. Paragraph (34)(g) is applicable to this event because the intent of this rule is to establish a safety zone.

A preliminary “Environmental Analysis Check List” is available in the docket where indicated under ADDRESSES. Comments on this section will be considered before we make the final decision on whether the rule should be categorically excluded from further environmental review.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553 (b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. An NPRM was not published for this regulation because the final details regarding the nature of the zone were not determined with sufficient time to draft and publish an NPRM. Any delay encountered in the regulation's effective date would be contrary to public interest since the safety zone is needed to prevent traffic from transiting a portion of the Charles River, Boston, Massachusetts, during the fireworks display and to provide for the safety of life on navigable waters. Under 5 U.S.C. 553 (d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . The zone should have minimal negative impact on vessel use of the Charles River because vessels will only be excluded from the area of the safety zone for 4.5 hours and will be able to operate in other areas of the river during this time.

Boston's Fourth of July is holding a fireworks display as part of Boston's celebration in honor of Independence Day. This regulation establishes a temporary safety zone on the waters of the Charles River within a four hundred (400) yard radius around the fireworks launch site located midway between the Longfellow and Massachusetts Avenue Bridges, specifically at 42°21.28′ N, 071°05.00′ W.

This safety zone is necessary to protect the life and property of the maritime public from the dangers posed by this event. It will protect the public by prohibiting entry into or movement within this portion of the Charles River during the fireworks display.

The safety zone is in effect from 7 p.m. EDT until 11:30 p.m. EDT July 4, 2005 with a rain date of July 5, 2005. Marine traffic may transit safely outside of the safety zone during the event thereby allowing navigation of the entire river except for the portion delineated by this rule.

Due to the size of the river and the size of this safety zone, the Captain of the Port anticipates minimal negative impact on vessel traffic due to this event. Public notifications will be made prior to the effective period via local media, local notice to mariners and marine information broadcasts.

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 under of the regulatory policies and procedures of DHS is unnecessary.

Although this regulation prevents vessel traffic from transiting into a portion of the Charles River during this event, the effect of this regulation will not be significant for several reasons: vessels will only be excluded from the area of the safety zone for 4.5 hours; although vessels will not be able to transit the river in the vicinity of the zone, they will be able to operate in other areas of the river during the effective period; and advance notifications will be made to the local maritime community by marine information broadcasts and Local Notice to Mariners.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit or anchor in a portion of the Charles River from 7 p.m. EDT until 11:30 p.m. EDT July 4, 2005 with a rain date of July 5, 2005. This safety zone will not have a significant economic impact on a substantial number of small entities for the reasons described under the Regulatory Evaluation section.

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

This rule would call 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 State, local or tribal governments, 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 would not affect 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 pose 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 Considering 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 standard.

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 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. This rule fits the category selected from paragraph (34)(g), as it would establish a safety zone. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” will be available in the docket where indicated under ADDRESSES.

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

On March 18, 2005 (70 FR 13125), EPA proposed to approve a draft version of the following permit condition into the Arizona SIP.

On April 26, 2005, the submittal of the permit condition in Table 1 was found to meet the completeness criteria in 40 CFR part 51, appendix V, which must be met before formal EPA review. The submitted version is substantively identical to the draft version proposed for EPA approval. We proposed to approve this permit condition because we determined that it complied with the relevant CAA requirements. Our proposed action contains more information on the rule and our evaluation.

EPA's proposed action provided a 30-day public comment period. During this period, we did not receive any comments.

No comments were submitted to change our assessment that the submitted permit condition complies with the relevant CAA requirements. Therefore, as authorized in section 110(k)(3) of the CAA, EPA is fully approving the permit condition into the Arizona SIP.

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 15, 2005. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

The use of “we,” “us,” or “our” in this document refers to EPA.

On June 30, 2004, the Georgia Environmental Protection Division (EPD) submitted a SIP revision addressing the Severe Area VMT requirement (section 182(d)(1)(A) of the Act) for the Atlanta 1-hour ozone nonattainment area. Section 182(d)(1)(A) requires severe ozone nonattainment areas to submit a SIP revision that identifies whether it is necessary to adopt transportation control measures (TCMs) to offset growth in emissions attributable to growth in VMT. On April 12, 2005, (70 FR 19031), EPA published a proposed rule proposing to approve Georgia's VMT SIP submittal because the State had demonstrated that emissions increases from increases in VMT, or the numbers of vehicle trips, within the Atlanta area did not rise above an established ceiling by 2004, the year the area attained the 1-hour ozone NAAQS. Please see the proposed rule for a detailed discussion of the VMT submittal and of EPA's rationale for its proposed approval.

In addition, on February 1, 2005, EPD submitted a request to redesignate the 1-hour ozone NAAQS nonattainment area of Atlanta, Georgia, to attainment, and a request for EPA approval of a Georgia SIP revision containing a 10-year maintenance plan for the 13-county Atlanta area. The 10-year maintenance plan includes new motor vehicle emissions budgets (MVEB) for the year 2015. Georgia EPD also requested that EPA make a determination that certain SIP submittal requirements related to attainment demonstrations, contingency measures, and reasonable further progress are not applicable requirements because the Atlanta area has attained the 1-hour ozone NAAQS based on ambient air monitoring data for the 3-year period including the years 2002, 2003, and 2004.

On April 20, 2005, (70 FR 20495), EPA published a proposed rule proposing four actions: To find that the Atlanta area has attained the 1-hour ozone NAAQS; to find that certain attainment demonstration and reasonable further progress requirements, along with other related requirements of part D of title I of the CAA, are not applicable to the Atlanta area for so long as it continues to attain the 1-hour ozone standard; to approve the 10-year maintenance plan, including the 2015 MVEBs; and to approve the 1-hour ozone redesignation request for the Atlanta area. Please see the proposed rule for a detailed discussion of EPD's submittals and of EPA's rationale for its proposed actions.

Today, EPA is granting final approval of two of the four actions proposed by EPA on April 20, 2005, (70 FR 20495), and granting final approval of EPD's VMT submittal which was proposed by EPA on April 12, 2005, (70 FR 19031). First, EPA is determining that the Atlanta area has attained the 1-hour ozone NAAQS based on air quality monitoring data for the 2002 through 2004 ozone season. Based on this determination, EPA is also determining that certain CAA SIP submittal requirements related to attainment demonstrations and reasonable further progress, along with other related requirements of part D of title I of the CAA, are not currently applicable to the Atlanta area because the area is attaining the 1-hour ozone standard. If an area has in fact attained the 1-hour ozone standard, the stated purpose of CAA SIP submissions relating to attainment demonstrations and reasonable further progress ( i.e. to ensure timely attainment of the 1-hour ozone standard) has already been fulfilled and there is no need for an area to make further submissions containing additional measures to achieve attainment, so long as the area remains in attainment. See Memorandum from John S. Seitz, Office of Air Quality Planning and Standards, entitled, “Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard,” dated May 10, 1995 (Seitz Memorandum).

Second, EPA is granting final approval to Georgia's Severe Area VMT SIP submittal which satisfies the requirements of section 182(d)(1)(A) of the Act.

In this rulemaking, EPA is not taking action on its April 20, 2005, proposed approval of the redesignation request and 10-year maintenance plan for the Atlanta area. Final action on the redesignation request and 10-year maintenance plan will be taken in a separate rulemaking.

EPA interprets the CAA's general nonattainment provisions of subpart 1 of part D of title I (sections 171 and 172) and the more specific attainment demonstration and related provisions of subpart 2 (section 182), relating to SIP requirements for ozone nonattainment areas to not require the submission of SIP revisions concerning reasonable further progress (RFP), attainment demonstrations, or contingency measures for areas where the monitoring data show that the area is attaining the 1-hour ozone standard. See Sierra Club v. EPA , 99 F.3d 1551 (10th Cir. 1996). The rationale behind this interpretation is discussed in the Seitz Memorandum.

EPA believes it is reasonable to interpret the provisions regarding RFP and attainment demonstrations, along with other certain related provisions, not to require SIP submissions if an ozone nonattainment area subject to those requirements is monitoring attainment of the ozone standard ( i.e. , attainment of the NAAQS demonstrated with three consecutive years of complete, quality-assured, air quality monitoring data). EPA believes this interpretation is reasonable because the stated purpose of CAA provisions addressing or relating to RFP and attainment demonstrations is to ensure attainment of the standard by the applicable attainment date. If an area has in fact attained the standard, the stated purpose of the requirement will have been fulfilled and there will be no need for an area to make a further submission containing additional measures to achieve attainment. EPA has explained at length in other actions its rationale for the reasonableness of this interpretation of the CAA and incorporates those explanations by reference. See (68 FR 25418) ( St. Louis, MO., May 12, 2003); (68 FR 4847, 4848) (St. Louis, MO., January 30, 2003); (66 FR 27483, 27486) (Louisville, Kentucky, May 17, 2001); (67 FR 49600) (Cincinnati-Hamilton, Kentucky, July 31, 2002); (66 FR 53095) (Pittsburgh-Beaver Valley, Pennsylvania, October 19, 2001); (65 FR 37879) (Cincinnati-Hamilton, Ohio and Kentucky, June 19, 2000); (61 FR 20458) (Cleveland-Akron-Lorain, Ohio, May 7, 1996); (60 FR 36723) (Salt Lake and Davis Counties, Utah, July 18, 1995); (60 FR 37366) (July 20, 1995); (61 FR 31832-31833) (June 21, 1996) (Grand Rapids, MI). The United States Court of Appeals for the Tenth Circuit has upheld EPA's interpretation. See Sierra Club v. EPA , 99 F.3d 1551 (10th Cir. 1996); see also Sierra Club v. EPA , 375 F.3d 537 (7th Cir. 2004) (rejecting a challenge to the interpretation).

EPA has reviewed the ambient air monitoring data for 1-hour ozone (consistent with the requirements contained in 40 CFR part 58 and recorded in EPA's Aerometric Information Retrieval System (AIRS)) for the Atlanta ozone nonattainment area from the 2002 through 2004 ozone seasons. On the basis of this review, EPA is making its final determination that the area has attained the 1-hour ozone standard during the 2002 through 2004 period and continues to attain the standard. On the basis of this final determination of 1-hour ozone attainment, the State of Georgia is not required to make the following submittals for the Atlanta area: section 172(c)(2) reasonable further progress requirements, section 172(c)(9) and section 182(c)(9) contingency measures, sections 182(b)(1)(A) and 182(c)(2)(B) reasonable further progress requirements, sections 172(c)(1), 182(c)(2)(A), and section 182(j) attainment demonstration and reasonably available control measures requirements, section 182(c)(5) demonstrations, and section 182(g) milestones. See 70 FR 20500-20501 (April 20, 2005). The Atlanta area does not need any other measures to attain the 1-hour ozone standard, so long as the area continues to monitor attainment of the 1-hour standard. When and if a violation occurs, the requirements referenced above would need to be addressed.

The State of Georgia must continue to operate an appropriate network, in accordance with 40 CFR part 58, to verify the attainment status of the Atlanta area. The air quality data relied upon to determine that the area is attaining the 1-hour ozone standard must be consistent with 40 CFR part 58 requirements and other relevant EPA guidance and recorded in EPA's AIRS.

On April 12, 2005, (70 FR 19031), EPA published a proposed rule proposing to find that Georgia's Severe Area VMT SIP revision had addressed the requirement of section 182(d)(1)(A) of the Act that severe ozone nonattainment areas submit a SIP revision that identifies whether it is necessary to adopt TCMs to offset growth in emissions attributable to growth in VMT. EPA's longstanding policy is that the purpose of the VMT SIP requirement is to prevent a growth in motor vehicle emissions from canceling out the emissions reduction benefits of the federally mandated programs of the CAA. See 60 FR 48,896, 48,897 (Sept. 21, 1995) (EPA final approval of Illinois' VMT SIP). EPA interprets this provision to require that sufficient measures be adopted so that projected motor vehicle volatile organic compound (VOC) emissions will never be higher during the ozone season in one year than during the ozone season in the year before. When growth in VMT and vehicle trips would otherwise cause a motor vehicle emissions upturn, this upturn must be prevented. The emissions level at the point of upturn becomes a ceiling on motor vehicle emissions. This requirement applies to projected emissions in the years between the submission of the SIP revision and the attainment deadline, and is above and beyond the separate requirements for the RFP and the attainment demonstrations. The ceiling line is defined, therefore, up to the point of upturn, as motor vehicle emissions that would occur in the ozone season of that year, with VMT growth, if all measures for that area in that year were implemented as required by the CAA. When this curve begins to turn up due to growth in VMT or vehicle trips, the ceiling becomes a fixed value. The ceiling line would include the effects of federal measures such as new motor vehicle standards, phase II reid vapor pressure (RVP) controls, and reformulated gasoline, as well as the CAA-mandated SIP requirements.

For each year from 1999 to 2004, typical summer day highway mobile source emissions inventories were estimated for the Atlanta 13-county 1-hour ozone nonattainment area. These inventories, which reflect the most recent planning assumptions available and include all federal and State mobile source control rules, demonstrate that motor vehicle emissions of both VOC and nitrogen oxide (NO X ) decreased each year, for a six-year period, through the 2004 attainment year for the Atlanta severe 1-hour ozone nonattainment area. Therefore, pursuant to the Act and EPA policy, the adoption of additional TCMs is not required for Atlanta to demonstrate attainment of the 1-hour NAAQS standard for ozone or to satisfy the requirements of section 182(d)(1)(A). EPA is granting final approval to Georgia's Severe Area VMT SIP revision in this action.

EPA finds that there is good cause for the determination of attainment and the determination of non-applicability of certain CAA SIP submittal requirements to become effective June 14, 2005, because a delayed effective date is unnecessary due to the nature of the determinations, which relieve the Atlanta area from certain CAA requirements that would otherwise apply to it for so long as the area remains in attainment of the 1-hour ozone standard. The expedited effective date for these actions is authorized under both 5 U.S.C. 553(d)(1), which provides that rulemaking actions may become effective less than 30 days after publication if the rule “grants or recognizes an exemption or relieves a restriction” and section 553(d)(3), which allows an effective date less than 30 days after publication “as otherwise provided by the agency for good cause found and published with the rule.”

As indicated above, EPA's September 26, 2003, final rule reclassified the Atlanta area to a “severe” nonattainment area and established a schedule for submission of SIP revisions fulfilling the requirements for severe ozone nonattainment areas. Upon the effective date of this rule, the State of Georgia will be relieved of the obligation to develop and submit several of these SIP revisions, which are specifically identified above, for so long as the area remains in attainment of the 1-hour ozone standard. The relief from these obligations is sufficient reason to allow an expedited effective date of this rule under 5 U.S.C. 553(d)(1). In addition, Georgia's relief from these SIP submittal obligations provides good cause to make this rule effective June 14, 2005, pursuant to 5 U.S.C. 553(d)(3). The purpose of the 30-day waiting period prescribed in 5 U.S.C. 553(d) is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. Where, as here, the final rule relieves obligations rather than imposes obligations, affected parties such as the State of Georgia do not need time to adjust and prepare before the rule takes effect.

For these same reasons, EPA also finds that there is good cause for the final approval of Georgia's Severe Area VMT SIP to become effective June 14, 2005. The final approval relieves Georgia from adopting additional TCMs to offset growth in emissions attributable to growth in VMT. This relief is sufficient reason to allow an expedited effective date of this rulemaking under 5 U.S.C. 553(d)(1) and 553(d)(3).

On April 12, 2005, (70 FR 19031), EPA published a proposed approval of Georgia's submittal regarding severe area VMT for the Atlanta 1-hour severe ozone nonattainment area. The comment period ended on May 12, 2005. EPA received no adverse comment.

On April 20, 2005, (70 FR 20495), EPA published a proposed rule proposing four actions: To find that the Atlanta area has attained the 1-hour ozone NAAQS; to find that certain attainment demonstration and reasonable further progress requirements, along with other related requirements of part D of title I of the CAA, are not applicable to the Atlanta area for so long as it continues to attain the 1-hour ozone standard; to approve the 10-year maintenance plan; and to approve the 1-hour ozone redesignation request for the Atlanta area. The comment period ended on May 20, 2005. One comment, discussed below, was received regarding the maintenance plan portion of EPA's April 20, 2005, proposed rule. The comment, however, contained a footnote addressing emissions increases and a monitoring violation of the 1-hour ozone standard. While EPA does not believe that the footnote was directly submitted as a comment on the attainment determination, we are providing the following clarification on this footnote in this rulemaking.

The Renewable Fuels Association submitted comments with respect to the showing of maintenance which will be addressed by EPA in a separate rulemaking action on the redesignation request and maintenance plan. The comments included a footnote (footnote 3) asserting that “Georgia submitted data related to only 11 monitors in ten of the thirteen counties. In 2002, however, there was a twelfth monitor located within the 13-county area—Waleska in Cherokee County * * * The monitoring data show that the ozone levels at this monitor were steadily increasing from 2000 to 2002, resulting in a violation in 2002.”

In response, EPA notes that there was a special purpose monitor (SPM) in Cherokee County, Georgia, (Waleska site) that operated from 1999-2002. 1 This monitor recorded only one exceedance of the 1-hour ozone standard during this period that occurred in 2002. This one exceedance does not constitute a violation of the 1-hour ozone standard. 2 The monitor at the Waleska site was terminated by the State due to siting issues (potential interference by trees and a school's chemistry laboratory). The Waleska site was designated a SPM, and for this type of monitor the states are not required to obtain EPA concurrence for its termination.

Georgia's request for redesignation and a determination of attainment did include data from all ozone monitors in the Atlanta area with complete data for the period of 2002-2004, showing no violations of the 1-hour ozone standard. Thus, there were no recorded violations of the 1-hour ozone standard omitted from Georgia's redesignation request as implied by the commentator.

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

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

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272) 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 June 14, 2005. A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 15, 2005. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Throughout this document, the terms “we,” “us,” and “our” mean U.S. EPA.

On March 21, 2005 (70 FR 13425), we published a notice of proposed rulemaking for the State of Arizona. The notice proposed approval of the State's submittals of revisions to the Arizona state implementation plan (SIP) for the Phoenix metropolitan 1-hour ozone nonattainment area and the State's redesignation request for this area from “nonattainment” to “attainment”.

Specifically, we proposed approval of three sets of SIP revisions adopted and submitted to us by the Arizona Department of Environmental Quality (ADEQ). First, under sections 182(c)(4)(B) and 110(k)(3) of the Clean Air Act (CAA or “the Act”), we proposed to approve the State of Arizona's 1998 request to “opt-out” of the clean fuel fleet (CFF) program and to approve the cleaner burning gasoline (CBG) program as a substitute measure. Second, we proposed to approve, under section 110(k)(3) of the Act, the State's 2000 submittal of the Final Serious Area Ozone State Implementation Plan for Maricopa County (“Serious Area Ozone Plan”), which provides a demonstration of compliance with the requirements under the CAA for the Phoenix metropolitan “serious” 1-hour ozone nonattainment area. Third, we proposed to approve, under sections 107(d)(3)(D) and 110(k)(3), the State's 2004 submittal of the One-Hour Ozone Redesignation Request and Maintenance Plan for the Maricopa County Nonattainment Area (“Redesignation Request and Maintenance Plan”), which was developed and adopted locally by the Maricopa Association of Governments (MAG), as meeting CAA requirements for redesignation requests and maintenance plans.

Our proposed approval of these three sets of SIP revisions provided us the basis upon which to propose a finding that the Phoenix metropolitan nonattainment area has fully met the requirements for redesignation found at section 107(d)(3)(E) of the CAA for redesignation of an area from nonattainment to attainment for the 1-hour ozone national ambient air quality standard (NAAQS). 1

We have previously approved the principal control measures relied on in the Serious Area Ozone Plan and the Redesignation Request and Maintenance Plan for attainment and maintenance of the 1-hour ozone NAAQS in the Phoenix metropolitan nonattainment area, including various Maricopa County Volatile Organic Compound (VOC) Reasonable Available Control Technology (RACT) rules (see Table 3 in our proposed rule and footnote 1 in this notice), stage II vapor recovery requirements (see 59 FR 54521, November 1, 1994), the area's enhanced inspection and maintenance program (see 68 FR 2912, January 22, 2003), and cleaner burning gasoline program (see 69 FR 10161, March 4, 2004).

In addition, under section 107(d)(3)(A) of the Act, we proposed a revision of the boundary of the Phoenix metropolitan 1-hour ozone nonattainment area to exclude the Gila River Indian Reservation. Upon reconsideration, we have decided to withdraw the March 21, 2005 proposal as it relates to the revision of the boundary of the Phoenix metropolitan 1-hour ozone nonattainment area and will instead address this issue in a separate rulemaking. We are withdrawing the boundary change part of the proposal because, as a result of certain errors made at the time of initial designation, we have decided to consider the boundary change pursuant to the error correction provisions of CAA section 110(k)(6), rather than pursuant to CAA section 107(d)(3)(A) as we had proposed.

A more complete description of Arizona's SIP revisions and redesignation request and the rationale for our related approvals was presented in our March 21, 2005 proposed rule and will not be restated here. The reader is referred to the proposed rule for more details.

EPA received one comment letter during the 30-day comment period. This letter, dated April 20, 2005, was submitted by the Arizona Center for Law in the Public Interest (ACLPI) on behalf of a private citizen and the Grand Canyon Chapter of the Sierra Club. The comments and EPA responses are as follows:

While we do not dispute that the Phoenix area has not officially violated the 1-hour ozone standard for the past six years, and has not had an exceedance since 1996, we note that several of the monitoring sites continue to record some very high values. Over the past two summers, for example, Maricopa County issued a significant number of ozone alerts. Thus, while the Valley has officially “attained” the one-hour standard, it has not attained the 8-hour standard and ozone continues to be a serious problem that requires vigilant attention.

EPA agrees that, while the Phoenix area has attained the 1-hour ozone standard, the Phoenix area continues to be designated “nonattainment” for the 8-hour ozone NAAQS, which is more stringent than the 1-hour ozone NAAQS. See 69 FR 23858, at 23860, 23878-23879 (April 30, 2004). The 8-hour ozone NAAQS is not relevant to redesignation for the 1-hour standard, and this redesignation will not affect the continued nonattainment designation with respect to the 8-hour standard. The State of Arizona will be obligated to submit further SIP revisions for the purpose of attaining and maintaining the 8-hour ozone NAAQS within the Phoenix-Mesa 8-hour ozone nonattainment area, notwithstanding this redesignation for the 1-hour standard. We intend to identify the specific additional planning and control requirements for 8-hour ozone nonattainment areas in our upcoming Phase 2 implementation rule. The action we are taking today relates only to the 1-hour standard and does not affect the area's designation for the 8-hour ozone standard nor the obligations that will flow from that designation.

In the past, we have expressed concern about the adequacy of the Phoenix area ozone monitoring network. (See Letter dated June 19, 2000 from Jennifer Anderson to Frances Wicher re determination of attainment of the one-hour standard). Thus, we were interested to learn in the proposed rule that changes had been made to the network. In the proposed rule, EPA refers to the description of the monitoring network in the Redesignation Request and Maintenance Plan, but then notes that in recent years, the network has changed and that the current monitoring network is comprised of fewer and different sites that presumably meet EPA regulations. (70 FR 13428). We were unable to locate anything in the rulemaking materials that described which monitor sites were discontinued or which sites were relocated. We are informed only that the number of sites has been reduced from 21 to 18 and that locations have changed. Id.

This is of particular concern for a couple of reasons. First, as noted in the proposed rule, one of the control measures implemented by the State as part of the Redesignation Request and Maintenance Plan is the expansion of the nonattainment area. Common sense suggests that an expansion of the nonattainment area should lead to an increase in the number of monitors, not a decrease. Second, as EPA is well aware, the Phoenix metropolitan area continues to experience significant growth, both in population and footprint. In particular, there are huge residential developments planning for the West Valley in the Buckeye area. These developments, some of which represent the largest master-planned communities in the country, will convert thousands of acres of vacant desert to commercial and residential development, resulting in a significant increase in the mobile source emissions in that area. Consequently, having sufficient sites that will adequately monitor the ozone in this area is critical. However, the information provided in the proposed rule is insufficient to allow us to evaluate the adequacy of the system with respect to this concern. We do not believe it is appropriate for EPA to approve the Redesignation Request and Maintenance Plan if it does not accurately describe the current monitoring network.

The commenter incorrectly states that expansion of the nonattainment area is one of the control measures implemented by the State as part of the Redesignation Request and Maintenance Plan. We want to clarify that the State does not intend to expand the 1-hour ozone nonattainment area itself but rather to extend the applicability of certain control measures beyond the boundaries of the 1-hour ozone nonattainment area to areas designated as “unclassifiable/attainment.” These expanded control measures will provide additional support for continued maintenance of the 1-hour ozone NAAQS in the Phoenix metropolitan area.

With respect to monitoring networks in general, we note that there are on-going considerations that affect the design of any network ( i.e. , number, capabilities and locations of stations that comprise the network) in any given year, and thus, a net decrease in the overall number of monitoring stations does not in itself call into question the utility or reliability of the monitoring network or the data it generates. These considerations include, among others, the existence of redundant monitors, the persistent measurement of low concentrations at a given site, and lost access to site locations. These are practical issues that are considered annually by air monitoring agencies as they conduct the Annual Monitoring Network Reviews required by EPA regulations at 40 CFR 58.20 and 58.25. Maricopa County has published its last four monitoring network reviews (2001 to 2004) on the Web at http://www.maricopa.gov/aq/AIRDAY/airmon.asp. The monitoring network reviews explain anticipated changes in the network and record actual changes in the network.

With respect to the ozone monitoring network in the Phoenix area, changes reflect an effort undertaken several years ago by ADEQ, Maricopa County, Pinal County, and the tribes in the Phoenix area to take a more holistic view of the ozone monitoring network, in part due to concerns about 8-hour ozone concentrations. EPA supported this effort to reassess the ozone network in light of the new 8-hour ozone NAAQS and encouraged other areas to conduct the same type of assessment. The designation of the Phoenix area as an 8-hour ozone nonattainment area caused Maricopa County Environmental Services Department (MCESD), ADEQ, Pinal County and the tribes to make changes to the monitoring network to better track ozone concentrations in the 8-hour ozone nonattainment area, which is larger than the 1-hour ozone nonattainment and which includes the West Valley area.

Specifically, the commenter notes that, in our proposal, we indicate that the number of ozone monitoring sites in the Phoenix metropolitan area had been reduced from 21 in 2002 to 18 in 2004 and that some locations had changed but provide no further information describing these changes to the monitoring network. As discussed below, the actual net change in the number of ozone monitoring stations from 2002 to 2004 was from 21 stations to 20 stations. In our proposal, we inadvertently did not include one of the stations ( i.e. , the Tonto National Monument station) that had been listed for 2002 in our 2004 data table, and one of the other stations that had been listed in 2002 was in the process of being re-located during 2004 and thus was not included in the 2004 data table either. We note that these network changes are documented on an annual basis in the Annual Monitoring Network Reviews prepared by Maricopa County and made available to the public through the Web link cited above.

With respect to the changes in the ozone monitoring network between 2002 and 2004, we should have included the Tonto National Monument site in our summary of ozone data in table 1 of the proposed rule (70 FR 13429). 2 In that table, we did not include either the Maryvale station (closed in March 2004) that had been part of the 2002 network or the Buckeye station (to which the Maryvale station was re-located) in the fast-growing West Valley area because no data was gathered at either site for much of the 2004 ozone season (the Buckeye station opened in August 2004). 3 Thus, the reduction in the number of stations from 21 to 18 that was cited in the proposed rule was actually a reduction from 21 to 20. Other changes in the network between 2002 and 2004 included: (1) In mid-2003, the “Surprise” station was relocated due to power and access problems to another site within the City of Surprise referred to as the “Dysart” site; and (2) the ozone monitor at the Mesa site was permanently shut down in November 2002 to conserve personnel and equipment resources but also in recognition of the redundancy of ozone data from that particular site given that the Tempe station, which is merely three miles away, also monitors ozone. The relocation of the monitoring sites within the City of Surprise resulted in no net change in the number of ozone monitoring stations while the closing of the Mesa ozone site accounts for the net decrease of one station between 2002 and 2004 in the ozone monitoring network in the Phoenix area. We believe that the closing of a single monitoring station that was deemed redundant where there are still 20 monitoring stations remaining in operation does nothing to undermine our conclusion that the Phoenix area ozone monitoring network and the data it generates are adequate for the purposes of SIP development and redesignation under the Clean Air Act. Given that the data from the remaining 20 monitors supports a finding of attainment, EPA concludes that the monitoring network fully supports this redesignation.

Although, in principle, we do not object to the substitution of the CBG program for the clean fuel fleet requirement (provided the requirement that the substitute program will result in at least equivalent reductions in ozone), recent actions by the Governor's office call into question the State's commitment to the CBG program in the long term. Just last week, the Arizona Republic reported that Governor Janet Napolitano intends to seek a waiver of the CBG requirement this coming summer due to high gas prices. See “Napolitano May Seek Gas Price Relief,” Arizona Republic, April 11, 2005. We do not believe that high gas prices are a proper basis for such a waiver and fully anticipate the EPA will reject the request; however, in the article, the Governor's spokeswoman was quoted as saying “[t]he governor will continue to hammer on the Federal Government that we need to figure this out.” Id. Clearly, these comments call into question any commitments the State has made with respect to the CBG program and suggest that given the high price of gasoline (which is only expected to increase), approval of the State's request to opt out of the CFF requirement at this time may be ill-advised and short sighted. Rather than approving the CBG program only to field repeated waiver requests, it may be more appropriate for EPA to encourage the State to pursue the use of alternative fuels by implementing a clean fuel fleet program.

The commenter has not objected to the substitution of the CBG program for the Clean Fuel Fleet requirement, provided there is at least an equivalent reduction in ozone. EPA's proposed approval of the substitution made a demonstration of equivalency, as required by the CAA, and the commenter does not dispute this demonstration.

The commenter does, however, express concern about the State's commitment to the CBG program, given recent publicity that the State has considered requesting a waiver of the CBG requirements due to rising gasoline prices. We note that the CBG program is a control measure which EPA has approved into the Arizona SIP (in a Federal Register notice dated February 10, 1998 and a subsequent approval notice dated March 4, 2004), making it a federally enforceable measure. There are no waiver provisions under the SIP-approved CBG program for the summertime ( i.e. , ozone season) gasoline formulation nor are any such waiver provisions being approved as part of this action. Thus, if the State wants to make revisions to, or to temporarily suspend, the summertime gasoline formulation requirements of the CBG program, the State must follow CAA requirements applicable to any SIP revision, including provisions of section 110(l) regarding interference with attainment and applicable requirements, and requirements for public notice and comment, and EPA must follow similar notice and comment requirements for its action on such a SIP revision request.

In the past two years, the State has on several occasions requested and in two cases received from EPA a grant of enforcement discretion notifying CBG suppliers that EPA would not enforce the CBG requirements due to serious supply problems. In cases where EPA has granted such enforcement discretion, the discretion was of a temporary nature ( i.e. , 30 days or less) and was granted due to emergency situations such as a pipeline break, which resulted in legitimate problems with getting supplies of CBG to the Phoenix area, and not solely due to high gasoline prices. Thus, the commenter's objection does not relate to the justification for the proposed substitution of the CBG program and does not undermine EPA's belief in the future validity of the program as a viable component of the maintenance demonstration. EPA concludes that the justification for approving the substitution of emissions reductions from the CBG program for the Clean Fuel Fleet program is still sound.

Finally, we disagree that the Redesignation Request and Maintenance Plan properly includes contingency measures. As EPA acknowledges in the proposed rule, the measures designated as “contingency measures” in the Redesignation Request and Maintenance Plan are already implemented. According to CAA section 175A(d), the purpose of contingency provisions is to assure that the State will promptly correct any violation of the standard which occurs after the redesignation of the area as an attainment area. Obviously, if the so called “contingency measures” are already being implemented when a violation occurs, there is nothing to suggest that their continued implementation would ensure that the situation will be corrected. Rather, the Act clearly envisions additional measures which are automatically and immediately implemented if and when a violation occurs. If and when a violation occurs, the fact that the State did not rely upon these measures in its maintenance demonstration is meaningless. If a violation occurs, protection of the public health is paramount and the Clean Air Act contemplates and requires an immediate response that does not require additional EPA or State action. The State's commitment to adopt nonspecific additional contingency measures over a 15 to 21 month period if the “trigger” of at least four 0.120 ppm readings is met falls far short of this requirement of the Act. We believe that EPA's approval of the Redesignation Request and Maintenance Plan without requiring meaningful and appropriate contingency provisions would be arbitrary and capricious and contrary to law.

The commenter is correct in that the contingency provisions of the Redesignation Request and Maintenance Plan rely on measures that have already been implemented; however, we disagree that such measures, together with an enforceable mechanism to identify, adopt and implement additional contingency measures, do not suffice for the purposes of a maintenance plan under CAA section 175A(d).

Section 175A(d) of the Act requires that each maintenance plan “contain such contingency provisions as the Administrator deems necessary to assure that the State will promptly correct any violation of the standard which occurs after the redesignation of the area as an attainment area.” (emphasis added). First, as a general matter, we note that the italicized language clearly indicates that Congress expressly delegated authority to EPA to determine what contingency provisions in maintenance plans are necessary. More specifically, we have consistently held that section 175A(d) does not require that the contingency provisions developed for maintenance plan purposes contain fully adopted measures that will take effect (upon the occurrence of a given event) without further action by the State or EPA. Memorandum from John Calcagni, Director, Air Quality Management Division, Office of Air Quality Planning and Standards, U.S. EPA, “Procedures for processing Requests to Redesignate Areas to Attainment” (September 4, 1992) (“Calcagni memo”) at 12. 4 In this regard, we distinguish the contingency provision requirements for maintenance plans from those for nonattainment plans. For the latter, the CAA requires fully adopted measures that will take effect (upon the occurrence of a given event) without further action by the State or EPA. See CAA sections 172(c)(9), 182(c)(9), and 187(a)(3).

However, we note that the contingency provisions in a maintenance plan do become an enforceable part of the SIP (upon approval by EPA) and that the provisions should ensure that contingency measures are adopted expediently once they are triggered. We believe that the contingency provisions in a maintenance plan should clearly identify measures to be adopted, a schedule and procedure for adoption and implementation, and a specific time limit for action by the State. As a necessary part of the plan, the State should also identify specific indicators, or triggers, which will be used to determine when the contingency measures need to be implemented. Calcagni memo, page 12.

We reviewed the contingency provisions in the Redesignation Request and Maintenance Plan with the above considerations in mind and found them acceptable. The contingency provisions in the Redesignation Request and Maintenance Plan identify three specific measures for implementation: expansion of Area A boundaries, gross polluter option for vehicle inspection and maintenance (I/M) program waivers, and increased waiver repair limit options. See pages 3-17 and 3-18 of the Redesignation Request and Maintenance Plan and 70 FR 13425, at 13438-13439 (March 21, 2005). The Redesignation Request and Maintenance Plan anticipates that these measures would be implemented “early,”  5 and in fact, all of these measures have been implemented and continue to provide emissions reductions within the Phoenix metropolitan 1-hour ozone nonattainment area. Although these measures have been implemented, they will continue to provide additional reductions in future years. The Redesignation Request and Maintenance Plan also describes when these measures were adopted and how they are being implemented. See pages VI-18 through VI-21 in MAG's Technical Support Document for Ozone Modeling in Support of the One-Hour Ozone Redesignation Request and Maintenance Plan for the Phoenix Metropolitan Nonattainment Area, November 2003 (included as Exhibit 2 of Appendix A of the Redesignation Request and Maintenance Plan). Because they were expected to be (and have been) implemented “early,” there is no need to identify a triggering event for them. Further, we note that none of the three contingency measures was needed to attain the 1-hour ozone NAAQS nor are they relied upon for the purposes of the maintenance demonstration. 6

The positive effects of these contingency measures are continuing in nature, and are surplus, permanent and federally enforceable. The continuing reduction credits from the contingency measures are, in effect, set aside to be applied in the event that maintenance is not achieved. EPA has historically allowed early reductions under section 172(c)(9)—that is, reductions achieved before the contingency measure is “triggered”—to be used as contingency measures, because if it did not do so it would discourage areas from implementing “all reasonably available control measures as expeditiously as practicable” as required by CAA section 172(c)(1). See also the August 13, 1993 memorandum: “Early Implementation of Contingency Measures for Ozone and Carbon Monoxide (CO) Nonattainment Areas.” Were areas to hold such measures in reserve to serve as contingency measures, EPA would approve them. EPA sees only air quality benefits in allowing areas to implement such measures early and to get additional reductions in advance, potentially preventing any future violations.

We believe that it would be illogical to penalize maintenance areas that are taking extra steps ( i.e. , through “early” implementation of contingency measures) to ensure maintenance of the NAAQS by requiring them to adopt yet additional contingency measures now to backfill for the early activation of contingency measures. 7 Our interpretation of the contingency measure requirement and acceptance of “early” implementation of contingency measures in fulfillment of that requirement under section 172(c)(9) was recently upheld by the Fifth Circuit Court of Appeals. See La. Envtl. Action Network v. United States Envtl. Protection Agency , 382 F.3d 575 (5th Cir. 2004) (EPA approval of contingency measures vacated on different grounds). In the La. Envtl. Action Network case, the court stated, “Here, the EPA's allowance of early reductions to be used as contingency measures comports with a primary purpose of the CAA—the aim of ensuring that nonattainment areas reach NAAQS compliance in an efficient manner—and necessary requirements of the CAA.” Id at 581. While the La. Envtl. Action Network case specifically addressed the nonattainment plan contingency measure requirements under section 172(c)(9), we would expect a court to apply similar logic in reviewing EPA's acceptance of “early implementation” of contingency measures under section 175A(d) in support of the aim of ensuring that attainment areas continue to maintain the NAAQS as well.

Of course, if an area experiences a NAAQS violation despite early implementation of contingency measures, then additional contingency measures would be needed to promptly correct the violation, and the contingency provisions of the Redesignation Request and Maintenance Plan provide a mechanism under which such additional measures will be identified, adopted and implemented. This procedure is triggered by the occurrence of a fourth highest daily maximum hourly measurement exceeding 0.120 (at any given station over a three-year period) whereby additional measures ( i.e. , in addition to those already implemented) will be considered. 8 Once the triggering event occurs, the Redesignation Request and Maintenance Plan establishes that (1) verification of the monitoring data is to be completed within three months of the triggering event; (2) the additional measure is to be considered for adoption six months after verification of the data (nine months after the triggering event); and (3) the measure is to be implemented within six to 12 months after adoption, i.e. , 15 to 21 months after the triggering event. The Redesignation Request and Maintenance Plan does not identify the specific additional measures that would be adopted and implemented but notes that the existing contingency measures may be strengthened to provide additional emissions reductions as needed. This mechanism provides further assurance that the 1-hour ozone NAAQS will not be violated after redesignation of the Phoenix metropolitan area to attainment (by establishing a triggering event short of a violation) but that, if such a violation were to occur, it will be promptly corrected. The selection of a triggering event short of a violation would allow the State “to take early action to address potential violations of the NAAQS before they occur.” Calcagni memo, page 12.

The commenter appears to assert that it is possible that a violation could occur of such severity that the contingency provisions would be insufficient, and therefore inadequate. This interpretation of the statute is unreasonable. EPA cannot expect Arizona to provide contingency provisions that, by themselves, address every hypothetical violation of the NAAQS, no matter how severe. The State is not compelled to develop contingency provisions that are capable of addressing any imaginable violation, no matter how severe. EPA is applying a reasonable interpretation, considering the contingency provisions in the context of a reasonable range of possible violations. In the event that the specified contingency measures are less than is necessary to avoid a violation, Arizona has committed to adopt and implement additional measures. Moreover, it is evident in section 110(k)(5), as well as within section 175A(d) itself, that Congress contemplated that there may be situations in which the contingency provisions are insufficient to address a violation. Section 110(k)(5) authorizes EPA to require a State to revise its SIP where EPA finds that the SIP is substantially inadequate to maintain the NAAQS. The final sentence of section 175A(d) contemplates that EPA may, in its discretion, determine that a violation of the NAAQS requires a revision to the State SIP. Had Congress intended contingency provisions to successfully address every conceivable violation of the standard, additional revisions to the SIP in response to a violation of the NAAQS would be unnecessary. Thus, we continue to believe that the contingency provisions in the Redesignation Request and Maintenance Plan, including both specific contingency measures that have already been implemented as well as a mechanism for identifying, adopting and implementing additional contingency measures, fully comply with the statutory requirements of such provisions under section 175A(d) of the Act.

No comments were submitted that change our assessment that the State of Arizona's “opt-out” request, serious area plan, maintenance plan and redesignation request for the Phoenix metropolitan 1-hour ozone nonattainment area comply with the CAA and EPA regulations. Therefore, under the Clean Air Act, we are fully approving three sets of revisions to the Arizona SIP that have been submitted to us in connection with the Phoenix metropolitan 1-hour ozone nonattainment area and the State's redesignation request for this area from “nonattainment” to “attainment.”

First, under sections 182(c)(4)(B) and 110(k)(3) of the CAA, we are approving the State of Arizona's 1998 submittal of a request to “opt-out” of the Clean Fuel Fleet program and to approve the cleaner burning gasoline (CBG) program as a substitute measure.

Second, under section 110(k)(3) of the Act, we are approving the State's 2000 submittal of the Serious Area Ozone Plan as meeting the applicable requirements for serious 1-hour ozone nonattainment areas. As part of our overall approval of the Serious Area Ozone Plan, we approve the following specific plan elements:

• Periodic (ozone season) inventory update for 1996 as required under section 182(a)(3)(A); and

• Enhanced monitoring as required under section 182(c)(1).

Third, under sections 107(d)(3)(D) and 110(k)(3), we are approving the State's 2004 submittal of the Redesignation Request and Maintenance Plan as meeting CAA requirements for redesignation requests and maintenance plans under sections 107(d)(3)(E) and 175A and are redesignating the Phoenix metropolitan area from nonattainment to attainment for the 1-hour ozone NAAQS. In this regard, we find that:

• The Phoenix metropolitan 1-hour ozone nonattainment area has continued to attain the 1-hour ozone NAAQS based on quality-assured data for the years 2002 through 2004 (thus, certain requirements of title I, part D, as set forth in the proposed notice at 70 FR 13431-13432 (March 21, 2005), including the attainment demonstration, non-RACT reasonably available control measures (RACM), reasonable further progress, contingency measures, and other related requirements, continue to be inapplicable to the area);  9

• The SIP for the Phoenix metropolitan 1-hour ozone nonattainment area has been fully approved by EPA under section 110(k);

• The improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP (principally, the VOC RACT rules, stage II vapor recovery rules, the enhanced vehicle inspection and maintenance program, and the cleaner burning gasoline program), and applicable Federal air pollution control regulations;

• The Redesignation Request and Maintenance Plan meets the requirements of section 175A of the CAA;

• The State of Arizona has met all requirements applicable to the Phoenix metropolitan 1-hour ozone nonattainment area under section 110 and part D of title I of the CAA; and

• For the reasons described in the proposal, the State has satisfied all of the requirements for redesignation under section 107(d)(3)(E).

As part of our overall approval of the Redesignation Request and Maintenance Plan, we approve the following specific plan elements:

• Periodic (ozone season) inventory update for 1999 as required under section 182(a)(3)(A);

• 1998 and 1999 base cases (episodic), 2006 interim year, and 2015 maintenance year emissions inventories and maintenance demonstration;

• Implementation of the following control measures for maintenance purposes: CARB Phase 2 and Federal Phase II Reformulated Gasoline with a maximum 7 psi vapor pressure requirement from May through September, coordination of traffic signal systems, tougher enforcement of vehicle registration and emission test compliance, one-time waiver from vehicle emissions test, development of intelligent transportation systems, phased-in emission test cutpoints, and Maricopa County Rule 348 (related to aerospace manufacturing and rework operations).

• Contingency provisions, including the following measures: expansion of Area A boundaries, gross polluter option for I/M program waivers, and increased waiver repair limit options, as well as a mechanism (based on ambient ozone concentration readings) for triggering consideration of additional (or strengthened) contingency measures;

• Commitments by ADEQ and the Maricopa County Environmental Services Department (MCESD) to continue to operate an appropriate air quality monitoring network of National Air Monitoring Stations (NAMS) and State and Local Air Monitoring Stations (SLAMS) in accordance with 40 CFR part 58 to verify continued attainment of the 1-hour ozone standard;

• Commitment by Maricopa County to prepare periodic emission inventories every three years in coordination with ADEQ, the Arizona Department of Transportation, and MAG (this commitment extends to a review and evaluation of changes in the inventory through the regional air quality planning process to determine if additional measures should be considered);

• Commitment by MAG to prepare a revised maintenance plan eight years after redesignation to attainment; and

• VOC and NO X motor vehicle emissions budgets (corresponding to a weekday in August) for transportation conformity purposes under CAA section 176(c): 71.9 metric tons per day (mtpd) for VOC and 104.8 mtpd for NO X in 2006 and 48.7 mtpd for VOC and 53.6 mtpd for NO X in 2015.

Lastly, as noted above, we are withdrawing the March 21, 2005 proposal as it relates to the revision of the boundary of the Phoenix metropolitan 1-hour ozone nonattainment area to exclude the Gila River Indian Reservation and will instead address this issue in a separate rulemaking.

EPA finds that there is good cause for approval of this redesignation to attainment and SIP revision to become effective immediately upon publication because a delayed effective date is unnecessary due to the nature of a redesignation to attainment which relieves the area from certain Clean Air Act requirements that would otherwise apply to it. The immediate effective date for this redesignation is authorized under both 5 U.S.C. 553(d)(1), which provides that rulemaking actions may become effective less than 30 days after publication if the rule “grants or recognizes an exemption or relieves a restriction” and section 553(d)(3), which allows an effective date less than 30 days after publication “as otherwise provided by the agency for good cause found and published with the rule.”

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 redesignates the area to attainment for air quality planning purposes 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).

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), 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” are 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.”

Under section 5(b) of Executive Order 13175, EPA may not issue a regulation that has tribal implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal Government provides the funds necessary to pay the direct compliance costs incurred by tribal governments, or EPA consults with tribal officials early in the process of developing the proposed regulation. Under section 5(c) of Executive Order 13175, EPA may not issue a regulation that has tribal implications and that preempts tribal law, unless the Agency consults with tribal officials early in the process of developing the proposed regulation.

As indicated above, EPA had proposed to revise the boundary of the Phoenix metropolitan 1-hour ozone nonattainment area to exclude the Gila River Indian Reservation, but has decided to withdraw that part of the proposal and to address the boundary issue in a separate rulemaking. Consistent with EPA policy, EPA has communicated this change to representatives of the Gila River Indian Community and explained our rationale for withdrawing the proposal and conducting a separate rulemaking. EPA finds that this action, which no longer includes the boundary change, will neither impose substantial direct compliance costs on tribal governments, nor preempt tribal law. Thus, the requirements of sections 5(b) and 5(c) of the Executive Order do not apply to this rule.

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 redesignates the area to attainment for the purposes of air quality planning 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 as defined in Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this rule present a disproportionate risk to children.

In reviewing SIP submissions and redesignation requests, 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 or redesignation request for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission or redesignation request, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 15, 2005. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. ( See CAA section 307(b)(2).)

On March 18, 2005, U.S. EPA published a proposed rule (70 FR 13127) proposing to grant Texas authorization for changes to its Resource Conservation and Recovery Act program, listed in section D of that notice, which was subject to public comment. No comments were received. We hereby determine that Texas' hazardous waste program revisions satisfy all of the requirements necessary to qualify for final authorization.

States which have received final authorization from the EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, States must change their programs and ask the EPA to authorize the changes. Changes to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to the EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 266, 268, 270, 273, and 279.

We conclude that Texas' application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we propose to grant Texas Final authorization to operate its hazardous waste program with the changes described in the authorization application. Texas has the responsibility for permitting treatment, storage, and disposal facilities within its borders (except in Indian Country) and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates under the authority of HSWA take effect in authorized States before they are authorized for the requirements. Thus, EPA will implement those requirements and prohibitions in Texas, including issuing permits, until the State is granted authorization to do so.

The decision means that a facility in the State of Texas subject to RCRA will now have to comply with the authorized State requirements instead of the equivalent Federal requirements in order to comply with RCRA. The State of Texas has enforcement responsibilities under its State hazardous waste program for violations of such program, but the EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to:

• Do inspections, and require monitoring, tests, analyses, or reports; and

• Enforce RCRA requirements and suspend or revoke permits.

This action does not impose additional requirements on the regulated community because the regulations for which the State of Texas is being authorized by today's action are already effective under State law, and are not changed by today's action.

On March 18, 2005, (70 FR 13127), EPA published a proposed rule. In that rule we proposed granting authorization of changes to Texas' hazardous waste program and opened our decision to public comment. The Agency received no comments on this proposal. EPA found Texas' RCRA program to be satisfactory.

Texas received final authorization to implement its Hazardous Waste Management Program on December 12, 1984, effective December 26, 1984 (49 FR 48300). This authorization was clarified in a notice published in the Federal Register on March 26, 1985 (50 FR 11858). Texas received final authorization for revisions to its program in notices published in the Federal Register on January 31, 1986, effective October 4, 1985 (51 FR 3952); and on December 18, 1986, effective February 17, 1987 (51 FR 45320). EPA authorized the following revisions: March 1, 1990, effective March 15, 1990 (55 FR 7318); on May 24, 1990, effective July 23, 1990 (55 FR 21383); on August 22, 1991, effective October 21, 1991 (56 FR 41626); on October 5, 1992, effective December 4, 1992 (57 FR 45719); on April 11, 1994, effective June 27, 1994, (59 FR 16987); on April 12, 1994, effective June 27, 1994 (59 FR 17273); On September 12, 1997, effective November 26, 1997 (62 FR 47947); and on August 18, 1999 effective October 18, 1999 (64 FR 44836) and July 13, 2000; effective September 11, 2000 (65 FR 43246). EPA incorporated by reference the State of Texas Base Program and additional program revisions in RCRA Clusters III and IV into the CFR on September 14, 1999 (64 FR 49673); effective November 15, 1999. The TCEQ partially adopted the Hazardous Remediation Waste Management Requirements (HWIR-Media). The following are the Federal rules: 40 CFR 260.10, 261.4(g) through 261.4(g)(2)(ii), 264.1(j)(3)(i) through 264.1(j)(3), 264.554 through 264.554(m), 265.1(b), 268.2(c), 268.50(g) and 270.42 Appendix I . The HWIR-Media rule is an optional rule; states can partially adopt the rule if the State has in place other mechanism to address those hazardous wastes. The TCEQ did not adopt 40 CFR 270.11(d)(1)-(3), 270.68, 270.73(a), 270.79, 270.80(a)-(f), 270.85(a)-(c), 270.95, 270.100, 270.105, 270.110 introduction through 270.110(i), 270.115, 270.120, 270.125, 270.130(a)-(b), 270.135 introduction through 270.135(c), 270.140 introduction through 270.140(c), 270.145(a) introduction through 270.145(d)(3), 270.150(a)-(g), 270.155(a) introduction through 270.155(b), 270.160 introduction through 270.160(c), 270.165, 270.170, 270.175(a) introduction through 270.175(c), 270.180(a)-(b), 270.185, 270.190(a)-(d), 270.195, 270.200, 270.205, 270.210 introduction through 270.210(b), 270.215(a), 270.215(a)-(d), 270.220(a)-(b), 270.225, and 270.230(a) through 270.230(e)(2). Therefore, these Federal rules listed in this document that the State did not adopt are not part of the authorized program. However, the TCEQ has an Office of Remediation which is responsible for the cleanup of releases of hazardous waste and pollutants so that threats to human health and the environment are controlled or eliminated. The TCEQ rules which address the Remedial Action Plan requirement of the HWIR-media rule are covered in the Texas Risk Reduction Program rules at 30 Tex. Admin. Code Ch. 350 and 30 Tex. Admin. Code Section 350.75. The Texas Risk Reduction Rules are not part of Texas' authorized Federal RCRA program.

On March 28, 2002, the State of Texas submitted a final complete program revision application, seeking authorization of their changes in accordance with 40 CFR 271.21. Texas' revisions consist of regulations which specifically govern Federal Hazardous Waste promulgated from July 1, 1995, to June 30, 2000 ( RCRA Clusters VII through X). We now make a final decision, that Texas' hazardous waste program revision satisfies all of the requirements necessary to qualify for Final authorization. Therefore, we propose to grant Texas Final authorization for the following program changes:

The site to be deleted from the NPL is: Surface Soils of the South Tacoma Field Operable Unit of the Commencement Bay-South Tacoma Channel. A Notice of Intent to Delete for this Site was published in the Federal Register on April 11, 2005 (70 FR 18347). The closing date for comments was May 11, 2005. One public comment was received expressing general support of the proposed decision and does not require a responsiveness summary. Also during the public comment period, EPA received written concurrence on the proposed decision from the Agency for Toxic Substances and Disease Registry (ATSDR).

EPA identifies sites that appear to present a significant risk to public health, welfare, or the environment and it maintains the NPL as the list of those sites. Any site deleted from the NPL remains eligible for Fund-financed remedial action in the unlikely event that conditions at the site warrant such action. Section 300.425(e)(3) of the NCP states that Fund-financed actions may be taken at sites deleted from the NPL. Deletion of a site from the NPL does not affect responsible party liability or impede agency efforts to recover costs associated with response efforts.

The site to be deleted from the NPL is: Naval Magazine Indian Island, Port Hadlock, Washington. A Notice of Intent to Delete for this Site was published in the Federal Register on April 15, 2005 (70 FR 19915). The closing date for comments was May 16, 2005. No comments were received therefore, EPA has not prepared a Responsiveness Summary.

EPA identifies sites that appear to present a significant risk to public health, welfare, or the environment and it maintains the NPL as the list of those sites. Any site deleted from the NPL remains eligible for remedial actions in the unlikely that conditions at the site warrant such action. Deletion of a site from the NPL does not affect responsible party liability or impede agency efforts to recover costs associated with response efforts.

On December 20, 2004, the Research and Special Programs Administration (RSPA)—the predecessor agency to the Pipeline and Hazardous Materials Safety Administration (PHMSA, we)—published a final rule under Docket HM-215G (69 FR 76044) revising the HMR to maintain alignment with recent changes corresponding provisions in international standards. Changes to the International Maritime Dangerous Goods Code (IMDG Code), the International Civil Aviation Organization's Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions), and the United Nations Recommendations on the Transport of Dangerous Goods (UN Recommendations) necessitated amendments to domestic regulations to provide consistency and facilitate the transport of hazardous materials in international commerce. This final rule corrects various errors made during the development of the December 20, 2004 final rule and printing process. Because the amendments adopted herein impose no new regulatory burden on any person, these amendments are being made effective without the usual 30-day delay following publication.

We are correcting entries in the HMT as follows:

• The entry “Adhesives, containing a flammable liquid, ” UN1133, PG I is revised by correcting the Column (8C) Bulk Packaging entry “143” to read “243.”

• The entry “Aerosols, corrosive, Packing Group II or III, (each not exceeding 1 L capacity),” UN1950, is revised by correcting the Column (7) Special provisions to remove “153.”

• The entry “Aerosols, flammable, (each not exceeding 1 L capacity),” UN1950, is revised by correcting the Column (7) Special provisions to remove “153.”

• The entry “Aerosols, flammable, n.o.s. (engine starting fluid) (each not exceeding 1 L capacity),” UN1950, is revised by correcting the Column (7) Special provisions to remove “153.”

• The entry “Aerosols, non-flammable, (each not exceeding 1 L capacity),” UN1950, is revised by correcting the Column (7) Special provisions to remove “153.”

• The entry “Aerosols, poison, each not exceeding 1 L capacity,” UN1950, is revised by correcting the Column (7) Special provisions to remove “153.”

• For the Packing Group III entry for “Alcohols, flammable, toxic, n.o.s.,” UN1986 is revised by correcting the Column (8A) Packaging Exceptions entry “None” to read “150.”

• The entry “Alkaloids, solid, n.o.s. [or] Alkaloid salts, solid, n.o.s. [poisonous],” UN1544 is revised by correcting the Column (2) Hazardous materials description and proper shipping name to read “Alkaloids, solid, n.o.s. or Alkaloid salts, solid, n.o.s. poisonous.” The correction appears as a “Remove/Add” in this rulemaking.

• The entry “Aluminium alkyl halides, solid,” UN3641 is revised by correcting the Column (2) Hazardous materials description and proper shipping name to read “Aluminum alkyl halides, solid.” The correction appears as a “Remove/Add” in this rulemaking.

• The entry “Ammonium nitrate emulsion or Ammonium nitrate suspension or Ammonium nitrate gel, intermediate for blasting explosives, ” UN3375 is revised by correcting the Column (6) Label Codes to add “5.1.”

• The entry “5-tert-Butyl-2,4,6-trinitro-m-xylene or Musk xylene,” UN2956 is revised by correcting the Column (10B) Vessel stowage, Other entry “D12” to read “12.”

• The entry “Calcium arsenate,” UN1573 is revised by correcting the Column (8A) Packaging Exceptions entry “152” to read “153.”

• The entry “Calcium arsenate and calcium arsenite, mixtures, solid,” UN1574 is revised by correcting Column (8A) Packaging Exceptions entry “152” to read “153.”

• The entry “Cartridges power device (used to project fastening devices) ,” is revised by placing the entry in the correct alphabetical order in the HMT. The correction appears as a “Remove/Add” in this rulemaking.

• The entry “Chlorate and magnesium chloride mixture, solid,” UN1459 is revised by placing the Packing Group III entry immediately following the Packing Group II entry. The correction appears as a “Remove/Add” in this rulemaking.

• The entry “Chloroacetonitrile,” UN2668 is revised by correcting Column (7) Special provisions entry “IB99” to read “IB9.”

• The entry “Chloroacetophenone, liquid CN, ” UN3416 is revised by correcting the Column (2) Hazardous materials description and proper shipping name to read “Chloroacetophenone, liquid CN.” The correction appears as a “Remove/Add” in this rulemaking.

• The entry “Chloroacetophenone, solid (CN),” UN1697 is revised by correcting the Column (2) Hazardous materials description and proper shipping name to read “Chloroacetophenone, solid CN.” The correction appears as a “Remove/Add” in this rulemaking.

• The entry “Chlorodinitro-benzenes, solid,” UN3441 is revised by correcting the Column (1) Symbols to add “+.” In addition, the Column (2) Hazardous materials description and proper shipping name entry is corrected to read “Chlorodinitrobenzenes, solid. The correction appears as a “Remove/Add” in this rulemaking.

• The packing group I entry “Corrosive liquids, toxic, n.o.s.,” UN2922 is revised by correcting the Column (7) Special provisions entries “A7, A6” to read “A6, A7.”

• The entry “Cyclotrimethylenenitramine and octogen, mixtures, wetted or desensitized see RDX and HMX mixtures, wetted or desensitized etc .,” by correcting the Column (2) Hazardous materials description and proper shipping name to read “Cyclotrimethylenenitramine and oxygen mixtures, wetted or desensitized see RDX and HMX mixtures, wetted or desensitized etc. ” The correction appears as a “Remove/Add” in this rulemaking.

• The entry “Cyclotrimethylenenitramine and HMX mixtures, wetted or desensitized see RDX and HMX mixtures, wetted or desensitized etc .,” is revised by placing the entry in the correct alphabetical order in the HMT. The correction appears as a “Remove/Add” in this rulemaking.

• The entry “Detonators, non-electric, for blasting ,” UN0455 is revised by correcting the Column (10A) Vessel stowage, Location entry “5” to read “05.”

• The entry “2-Dimethylaminoacetonitrile,” UN2378 is revised by correcting the Column (10B) Vessel stowage, Other entry “52, 40” to read “40, 52.”

• The entry “Dinitrotoluenes, molten,” UN1600 is revised by placing the entry in the correct alphabetical order in the HMT. The correction appears as a “Remove/Add” in this rulemaking.

• The entry “Dinitrotoluenes, solid,” UN3454 is revised by placing the entry in the correct alphabetical order in the HMT. The correction appears as a “Remove/Add” in this rulemaking.

• The entry “Diphenyl-chloroarsine, solid,” by correcting the Column (2) Hazardous materials description and proper shipping name to read “Diphenylchloroarsine, solid.” The correction appears as a “Remove/Add” in this rulemaking.

• The entry “N-Ethylbenzyltoluidines, solid,” UN3460 is revised by placing the entry in the correct alphabetical order in the HMT. The correction appears as a “Remove/Add” in this rulemaking.

• The entry “Explosive, blasting, type A,” UN0081 is revised by correcting the Column (10B) Vessel stowage, Other entry “21E, 29E” to read “19E, 21E.”

• The entry “Explosive, blasting, type B,” UN0082 is revised by correcting the Column (10B) Vessel stowage, Other entry “29E” to read “19E.”

• The entry “Explosive, blasting, type B or Agent blasting, Type B,” UN0331 is revised by correcting the Column (10B) Vessel stowage, Other entry “29E” to read “19E.”

• The entry “Explosive, blasting, type E,” UN0241 is revised by correcting the Column (10B) Vessel stowage, Other entry “19E, 29E” to read “19E.”

• The entry “Explosive, blasting, type E or Agent blasting, Type E,” UN0332 is revised by correcting the Column (10B) Vessel stowage, Other entry “29E” to read “19E.”

• The entry “Fibers, animal or Fibers, vegetable burnt, wet or damp ,” UN1372 is revised by correcting the Column (6) Label Codes to add “4.2.”

• The entry “Fibers, vegetable, dry,” UN3360 is revised by correcting the Column (5) PG to add “III.”

• The entry “Fumigated transport vehicle or freight container see 173.9,” is revised by correcting the Column (2) Hazardous materials description and proper shipping name to read “Fumigated transport vehicle or freight container see § 173.9.” The correction appears as a “Remove/Add” in this rulemaking.

• The entry “Gasoline,” UN1203 is revised by correcting Column (7) Special provisions entries “139, B33, B101, T8” to read “144, B33, T8.”

• The entry “Hydrogen iodide solution, see Hydriodic acid solution,” is revised by correcting the Column (2) Hazardous materials description and proper shipping name to read “Hydrogen iodide solution, see Hydriodic acid.” The correction appears as a “Remove/Add” in this rulemaking.

• The entry “Hydrogen peroxide and peroxyacetic acid mixtures, stabilized with acids, water and not more than 5 percent peroxyacetic acid ,” UN3149 is revised by correcting Column (7) Special provisions entries to remove “IP5.”

• The entry “Hydrogen peroxide, aqueous solutions with not less than 20 percent but not more than 40 percent hydrogen peroxide (stabilized as necessary) ,” UN2014 is revised by correcting Column (7) Special provisions entries to remove “IP5.”

• The entry “Hydrogen peroxide, aqueous solutions with not less than 8 percent but not more than 20 percent hydrogen peroxide (stabilized as necessary) ,” UN2984 is revised by correcting Column (7) Special provisions entries to remove “IP5.”

• The entry “Hypochlorite solutions,” UN1791, PG II is revised by correcting Column (7) Special provisions entries to remove “IP5.”

• The entry “Isopropyl nitrate,” UN1222 is revised by correcting Column (7) Special provisions entry “IB99” to read “IB9.”

• The entry “Lead perchlorate, solution,” UN3408 is revised to correctly list the PG II entry before the PG III entry. The correction appears as a “Remove/Add” in this rulemaking.

• The entry “Lithium alkyls, liquid,” UN2445 is revised by correcting Column (7) Special provisions to add “173.”

• The entry “Lithium alkyls, solid,” UN3433 is revised by correcting Column (7) Special provisions to add “173.”

• The entry “Lithium batteries, contained in equipment,” UN3091 is revised by correcting Columns (9A) and (9B) Quantity limitations to read “See A102, A104” and “35 kg” respectively. In a December 15, 2004 interim final rule (69 FR 75215), we imposed a limited prohibition on offering for transportation and transportation of primary (non-rechargeable) lithium batteries and cells as cargo aboard passenger-carrying aircraft and equipment containing or packed with large primary lithium batteries. In addition, a typographical error which occurred, in Column (9B), during the printing process is corrected.

• The entry “Lithium batteries packed with equipment,” UN3091 is revised by correcting Column (9A) Quantity limitations to read “See A101, A103.” In a December 15, 2004 interim final rule (69 FR 75215), we imposed a limited prohibition on offering for transportation and transportation of primary (non-rechargeable) lithium batteries and cells as cargo aboard passenger-carrying aircraft and equipment containing or packed with large primary lithium batteries.

• The entry “Lithium battery,” UN3090 is revised by correcting Column (9A) Quantity limitations to read “See A100.” In a December 15, 2004 interim final rule (69 FR 75215), we imposed a limited prohibition on offering for transportation and transportation of primary (non-rechargeable) lithium batteries and cells as cargo aboard passenger-carrying aircraft and equipment containing or packed with large primary lithium batteries.

• The entry “Magnesium diphenyl,” UN2005 is revised by correcting Column (7) Special provisions to add “173.”

• The entry “2-Methlybutanal,” UN3371 is revised by correcting Column (6) Label Codes to add “3.” In addition, Column (7) Special provisions was revised by correcting the entry “3IB2” to read “IB2.”

• The entry “ Methyl mercaptopropionaldehyde, see Thia-4-pentanal,” is revised by correcting the Column (2) Hazardous materials description and proper shipping name to read “ Methyl mercaptopropionaldehyde, see 4-Thiapentanal.” The correction appears as a “Remove/Add” in this rulemaking.

• The entry “beta-Naphthylamine,” UN1650 is removed. New proper shipping names “beta-Naphthylamine, solid” and “beta-Naphthylamine, solution” were added (69 FR 76115).

• The entries for “Nitriles, toxic, liquid, n.o.s.,” UN3276, PG I, II and III are revised to correctly list the entries in accordance with their packing groups. The correction appears as a “Remove/Add” in this rulemaking.

• The entries for “Nitriles, toxic, solid, n.o.s.,” UN3439, PG I, II, and III are revised to correctly list the entries in accordance with their packing groups. The correction appears as a “Remove/Add” in this rulemaking.

• The entries “Nitrocresols, solid,” UN2446 and “Nitrocresols, liquid,” UN3434 are revised by correcting the Column (2) Hazardous materials description and proper shipping name to correctly list these entries in alphabetical order. The correction appears as a “Remove/Add” in this rulemaking.

• The entry “ Nitrogen peroxide, see Dinitrogen tetroxide, ” is revised by correcting the Column (2) Hazardous materials description and proper shipping name to read “ Nitrogen peroxide, see , Dinitrogen tetroxide.” The correction appears as a “Remove/Add” in this rulemaking.

• The entry “4-Nitrophenylhydrazine, with not less than 30% water, by mass ,” UN3376 is revised by correcting the Column (2) Hazardous materials description and proper shipping name to correctly list this entry in alphabetical order. The correction appears as a “Remove/Add” in this rulemaking.

• The entry “2,5-Norbornadiene, stabilized, see Bicyclo 2,2,1 hepta-2,5-diene, stabilized,” is revised by correcting the Column (2) Hazardous materials description and proper shipping name to read “ 2,5-Norbornadiene, stabilized, see Bicyclo 2,2,1 hepta-2,5-diene, stabilized,” and to correctly list this entry in alphabetical order. This correction appears as a “Remove/Add” in this rulemaking.

• The entry “Organoarsenic compound, liquid, n.o.s.,” UN3280, PG I, Columns (9A) and (9B) are revised to read “1 L and 30 L,” respectively. The typographical errors in the two quantity limitations occurred during the printing process.

• The entry “Organoarsenic compound, liquid, n.o.s.,” UN3280, PG II, Columns (9A) and (9B) are revised to read “5 L and 60 L,” respectively. The typographical errors in the two quantity limitations occurred during the printing process.

• The entry “Organoarsenic compound, liquid, n.o.s.,” UN3280, PG III, Columns (9A) and (9B) are revised to read “60 L and 220 L,” respectively. The typographical errors in the two quantity limitations occurred during the printing process.

• The entry “Organometallic compound, toxic, liquid, n.o.s.,” UN3282, PG I, Columns (9A) and (9B) are revised to read “1 L and 30 L,” respectively. The typographical errors in the two quantity limitations occurred during the printing process.

• The entry “Organometallic compound, toxic, liquid, n.o.s.,” UN3282, PG II, Columns (9A) and (9B) are revised to read “5 L and 60 L,” respectively. The typographical errors in the two quantity limitations occurred during the printing process.

• The entry “Organometallic compound, toxic, liquid, n.o.s.,” UN3282, PG III, Columns (9A) and (9B) are revised to read “60 L and 220 L,” respectively. The typographical errors in the two quantity limitations occurred during the printing process.

• The entry “Organometallic substance, liquid, water-reactive,” UN3398, PG I, is revised by correcting the Column (9B) Quantity limitations entry “Forbidden” to read “1 L.”

• The entry “Organometallic substance, liquid, water-reactive, flammable,” UN3399, PG I, is revised by correcting the Column (9B) Quantity limitations entry “Forbidden” to read “1 L.”

• The entry “Organometallic substance, liquid, water-reactive, flammable,” UN3399, PG II, is revised by correcting the Column (7) Special provisions to add “IP2” and correcting the Columns (9A) and (9B) Quantity limitations entry “Forbidden” to read “1 L and 5 L” respectively.

• The entry “Organometallic substance, liquid, water-reactive, flammable,” UN3399, PG III, is revised by correcting the Column (7) Special provisions to add “IP4” and correcting the Columns (9A) and (9B) Quantity limitations entry “Forbidden” to read “5 L and 60 L” respectively.

• The entries “Phenyl urea pesticides, liquid, toxic,” UN3002, PG I, II and III are added to the HMT respectively. The entries were inadvertently removed during the printing process.

• The entry “Phosphorus,” UN2198 is revised by correcting the Column (2) Hazardous materials description and proper shipping name to read “Phosphorus Pentafluoride.” The correction appears as a “Remove/Add” in this rulemaking.

• The entry “ Potassium metal, liquid alloy, see Alkali metal alloys, liquid, n.o.s.,” is removed. New proper shipping names “Potassium metal alloys, liquid” and “Potassium metal alloys, solid” were added (69 FR 76129).

• The entries “Potassium sodium alloys, solid,” UN3404 and “Potassium sodium alloys, liquid,” UN1442 are revised by correcting the Column (2) Hazardous materials description and proper shipping name to correctly list these entries in alphabetical order. The correction appears as a “Remove/Add” in this rulemaking.

• The entry “n-Propyl nitrate,” UN1865 is revised by correcting Column (7) Special provisions entry “IB99” to read “IB9.”

• An erroneous entry immediately following the entry “Receptacles, small, containing gas (gas cartridges) non-flammable, without release device, not refillable and not exceeding 1 L capacity ,” UN2037 is removed. The correction appears as a “Remove/Add” in this rulemaking.

• The entry “Refrigerating machines, containing non-flammable, non-toxic, or ammonia solution (UN2672) ,” UN2857 is revised by correcting the Column (2) Hazardous materials description and proper shipping name to read “Refrigerating machines, containing non-flammable, non-toxic gases, or ammonia solutions (UN2672) .” The correction appears as a “Remove/Add” in this rulemaking.

• The entries for “Rubber solution,” UN1287, PG II, and III to correctly list the entries in accordance with their packing groups. The correction appears as a “Remove/Add” in this rulemaking.

• The entry for “Samples, explosive, other than initiating explosives,” UN1090, is added to the HMT. The entry was inadvertently removed during the printing process.

• The entries for “Selenium compound, liquid, n.o.s.,” UN3440, PG I, II and III are revised to correctly list the entries in accordance with their packing groups. The correction appears as a “Remove/Add” in this rulemaking.

• The entries for “Selenium compound, solid, n.o.s.,” UN3283, PG I, II, and III are revised to correctly list the entries in accordance with their packing groups. The correction appears as a “Remove/Add” in this rulemaking.

• The entry “Self-reactive liquid type F,” UN3229 is revised by correcting Column (7) Special provisions to remove “T23.”

• The entry “Sulfur,” NA1350 is revised by correcting Column (7) Special provisions entry “10” to read “30.”

• The entry “Sulfur, molten,” UN2448 is revised by correcting the Column (10B) Vessel stowage, Other entry “61” to read “74.”

• The entry “Sulfuric acid, fuming with less than 30 percent free sulfur trioxide ,” UN1831 is revised by correcting Column (7) Special provisions entry “B84, N34, T20, TP2, TP12, TP13” to read “A3, A7, B84, N34, T20, TP2, TP12, TP13.”

• The entry “Sulfuric acid, fuming with 30 percent or more free sulfur trioxide ,” UN1831 is revised by correcting Column (7) Special provisions entry “2, A3, A6, A7, B9, B14, B32, B74, B77, B84, N34, T20, TP2, TP12, TP13” to read “2, B9, B14, B32, B74, B77, B84, N34, T20, TP2, TP12, TP13.”

• The entry “Toxic by inhalation liquid, n.o.s. with an inhalation toxicity lower than or equal to 1000 ml/m 3 and saturated vapor concentration greater than or equal to 10 LC 50 ,” UN3382 is revised by correcting and typographical error in Column (2) and correcting Column (7) Special provisions entry “2, B9, B14, B32, B74, T20, TP2, TP13, TP27, TP38, TP4527, TP38, TP4513” to read “2, B9, B14, B32, B74, T20, TP2, TP13, TP27, TP38, TP45.” The correction appears as a “Remove/Add” in this rulemaking.

• The entry “Toxins, extracted from living sources, solid, n.o.s.,” UN3462 is revised by correcting Column (1) Symbols to add “G.”

• The entries “1,1,1-Trifluoroethane or Refrigerant gas, R 143a,” UN2035 and “Trifluoromethane, refrigerated liquid,” UN3136 are revised by correcting the Column (2) Hazardous materials description and proper shipping name to correctly list these entries in alphabetical order. The correction appears as a “Remove/Add” in this rulemaking.

• The entry “Trinitrobenzene (picryl chloride), wetted, with not less than 10% water by mass ,” UN3365 is revised by correcting the Column (2) Hazardous materials description and proper shipping name to read “Trinitrochlorobenzene (picryl chloride), wetted, with not less than 10% water by mass. ” The correction appears as a “Remove/Add” in this rulemaking.

We are correcting entries in the Special Provisions as follows:

• In paragraph (c)(1), Special Provision 173 is added. In the final rule we adopted an array of new generic UN entries for organometallic substances to harmonize with the UN Recommendations. These new generic entries are intended to be used for all organometallic substances, with all existing generic entries covering these substances being deleted. Consistent with the UN Recommendations, the final rule removed certain existing generic entries covering these materials, while certain entries for these materials were temporarily retained. The entries concerned are UN1366, UN1370, UN2005, UN2445, UN3051, UN3052, UN3076, UN3433 and UN3461. In the final rule, we included a statement in the preamble (69 FR 76048) stating our intent to remove these entries effective January 1, 2007.

However, in the UN Recommendations, Special Provision 320 was added to each of the affected entries scheduled for removal in 2007 that allows the appropriate new generic organometallic substances entry to be used in place of the technical name entry irrespective of the requirements in 2.0.2.2 of the UN Recommendations (which would otherwise require use of the technical name entry). The final rule, in error, failed to adopt a similar provision to that in UN Special Provision 320. Consequently, § 172.101(c)(12)(ii) would appear to preclude use of the new generic entries until such time the technical name entries are removed from the Hazardous Materials Table. Therefore, we are correcting this inconsistency by adding to the affected entries a Special Provision 173 stating that “An appropriate generic entry may be used.”

• In paragraph (c)(3), in Special Provision B69, we are correcting the last sentence by adding the word “be” after the word “must” and before the word “approved.” During the printing process the word “be” was inadvertently omitted.

• In paragraph (c)(4), in the “Table 1—IB Codes,” in the first column, under the heading “IBC Code,” the wording “B2” is corrected to read “IB2.” The typographical error occurred during the printing process.

• In paragraph (c)(4), in the “Table 1—IB Codes,” in the second column, under the heading “Authorized IBCs,” in the Additional Requirement entry for “IB3,” the reference to “Table 3” is corrected to read “Table 2.” The typographical error occurred during the printing process.

• In paragraph (c)(7), in the “Table of Portable Tank T Codes T1-T22,” in the fifth column, the first entry “§ 178.275(d)(2) 0 ” is corrected to read “§ 178.275(d)(2).” The typographical error occurred during the printing process.

• In paragraph (c)(8), in portable tank special provision “TP3,” the formula is corrected by revising “dr” and “df” to read “d r ” and “d f .” The typographical error occurred during the printing process.

In paragraph (a)(5)(i), in the first sentence, the wording “For Class I materials” is corrected to read “For Class 1 materials”. The typographical error occurred during the printing process.

Paragraph (m)(2) is revised to clarify that the phrase “Poison-Inhalation Hazard” or “Toxic Inhalation Hazard” need not be added to the shipping description if the words “Poison Inhalation” or “Toxic Inhalation” otherwise appear in the shipping description.

In the December 20, 2004 final rule, we revised the requirements for use of salvage drums to include the term “non-conforming.” The term “non-conforming” was added to the UN Model Regulations by the UN Committee of Experts in 2000. Our intent in the final rule was to allow the use of salvage drums for non-conforming packages, but to limit such use to instances where the packages were discovered to be non-conforming after having been placed in transportation. However, we inadvertently applied the limitation to damaged, defective, and leaking packages as well as to non-conforming packages. We are therefore revising 173.3(c) to clarify that damaged, defective, or leaking packages may be transported in salvage drums under the specified conditions irrespective of whether such packages are discovered before or after having been place in transportation. This would allow, for example, a package found leaking at a fixed storage facility to be transported in a salvage drum for purposes of recovery or disposal.

In § 173.25, paragraph (a)(4) is revised to clarify that overpacks marked with an indication that inner containers comply with prescribed specification may be used to satisfy the “OVERPACK” marking until October 1, 2007. The “inner container comply with prescribed specifications” marking remains in effect for cylinders or containers packaged in a strong non-bulk outer packaging that are specifically required elsewhere in this part to be marked in this manner.

In § 173.115, we are making the following corrections:

• In paragraph (a)(2), the last sentence is corrected to reference “§ 173.115(k)” regarding the flammability tests for aerosols.

• In paragraph (k)(3), a grandfather provision that would authorize an aerosol that was tested prior to January 1, 2006 in accordance with the requirements in effect on December 31, 2005 is not required to be retested.

The wording was inadvertently omitted.

In § 173.151, in paragraph (c), in the first sentence, the wording “171.8” is corrected to read “§ 171.8.” The typographical error occurred during the printing process.

In § 173.185, in paragraph (e)(6), in the second sentence, the wording “of a design type” is added after the word “battery” and before the word “which.” The wording was inadvertently omitted during the printing process.

In § 173.212, in paragraph (c), the entry “Glass, porcelain or stoneware in steel, aluminum, wooden or fiberboard box: 6PA2, 6PB1, 6PC or 6PG2” is corrected to read “Glass, porcelain or stoneware in steel, aluminum, wooden or fiberboard box: 6PA2, 6PB2, 6PC or 6PG2.” A typographical error occurred during the printing process.

In § 173.213, in paragraph (c), the entry “Glass, porcelain or stoneware in steel, aluminum, wooden or fiberboard box: 6PA2, 6PB1, 6PC or 6PG2” is corrected to read “Glass, porcelain or stoneware in steel, aluminum, wooden or fiberboard box: 6PA2, 6PB2, 6PC or 6PG2.” A typographical error occurred during the printing process.

In § 173.220, we are making the following corrections:

• In paragraph (a)(3), the reference to paragraph “(d)(1)” is corrected to read “(e)(1).”

• In paragraph (g), the reference to paragraph “(d)(2)” is corrected to read “(e)(2).”

These typographical errors occurred during the printing process.

In § 173.225, we are making the following corrections:

• In paragraph (c)(8), in the “Organic Peroxide Table,” for the entry “Dicumyl peroxide, UN3110, the number “9” is added to “column 8.”

• In paragraph (c)(8), in the “Organic Peroxide Table,” under “Notes,'' Note 12 is corrected by revising the reference to “paragraph (c)(2)” to read “paragraph (b)(2).” In paragraph (g), in the “Organic Peroxide Portable Tank Table,” for the entry “ORGANIC PEROXIDE, TYPE F, LIQUID, UN3109,” the word “than” is added immediately after the word “more” and before the wording “72%” for the entries “Isopropyl cumyl hydroperoxide, not more 72% in diluent type A” and “p-Menthyl hydro-peroxide, not more 72% in diluent type A,” respectively.

• Paragraph (h)(3)(xii) is revised specify that DOT 57 metal portable tanks are authorized for those materials that are provided with a reference to Note 9 in Column 8 of the Organic Peroxide Table and that when authorized these tanks must conform to the venting requirements specified in § 173.225(f). In the NPRM, we proposed to remove “Note 9.” However, as a result of comments received on the NPRM that proposal was not adopted.

• In the December 20, 2004 final rule, we added Note 29 to the notes following the Organic Peroxide Table. The note was used to identify materials which are found in the HMR, but not included in the UN Model Regulations, IMDG Code, and the ICAO Technical Instructions and to indicate that a Competent Authority approval is required for international transportation. However, it is not our policy to require approvals for organic peroxide formulations listed in the HMR but not in the international regulations. Therefore, Note 29 is being removed. However, in accordance with §§ 171.11(d)(17), 171.12(b)(20), and 171.12a(b)(18) a Competent Authority approval, issued by the Associate Administrator, is still required for shipments of organic peroxides which are not identified by technical name in the Organic Peroxide Table (also see § 173.128(d)).

In § 173.227, paragraph (b)(1) is being reinstated. This paragraph was inadvertently omitted during the printing process.

In § 173.313, in the “UN Portable Tank Table for Liquefied Compressed Gases,” the following corrections are made:

• Immediately following the entry “Methyl chloride and methylene chloride mixture, UN1912,” in the first and second columns respectively, the wording “1954” and “n.o.s.” are removed. In addition, in the sixth column the wording “0.81194” is corrected to read “0.81.”

• Immediately following the entry “Insecticide gases, flammable,” in the first and second columns, the wording “1954” and “n.o.s.” are added respectively. These typographical errors occurred during the printing process.

In § 175.30, paragraph (a)(5) is removed. Paragraph (a)(5) required hazardous materials being accepted for transportation aboard an aircraft to be marked with the air eligibility marking in accordance with § 172.321. In the final rule (69 FR 76154), we removed the requirement for shippers to mark packages acceptable for air transport with the air eligibility marking.

In § 176.83, in paragraph (l)(3), in the “Segregation of Cargo Transport Units on Board Hatchless Container Ships,” the following corrections are made:

• For the entry “Away from,” the first word in the tenth and eleventh columns are corrected to read “One.”

• For the entry “Separated by a complete compartment or hold from,” in the tenth column, in the second sentence, the word “Tree” is corrected to read “Three.” The typographical errors occurred during the printing process.

In § 178.274, in paragraph (f)(1)(v), the wording “(IBR, see § 171.1 of this subchapter)” is corrected to read “(IBR, see § 171.7 of this subchapter).” The typographical error occurred during the printing process.

In the final rule, we added a new paragraph (d)(1)(v) authorizing retests and inspections performed under paragraphs (d)(1)(i) and (d)(1)(ii) of this section to be used to satisfy the tests and inspections required of paragraph (b) of this section. However, an editorial error occurred during the printing process that caused the text in new paragraph (d)(1)(v) to be repeated in paragraph (d)(1)(iv). Additionally, the editorial error in paragraph (d)(1)(iv) created an incorrect lead-in to subparagraphs (A) and (B) that follow. The original intent of this change was to keep the “repair” and “routine maintenance” requirements in this section separate. Therefore, we are revising paragraph (d)(1)(iv) to correct this editorial error.

This final rule is published under the following statutory authorities:

1. 49 U.S.C. 5103(b) authorizes the Secretary of Transportation to prescribe regulations for the safe transportation, including security, of hazardous material in intrastate, interstate, and foreign commerce. This final rule corrects various errors made during the development of the December 20, 2004 final rule and printing process. To this end, as discussed in detail earlier in this preamble, the December 20, 2004 final rule amended the HMR to more fully align it with the biennial updates of the UN Recommendations, the IMDG Code and the ICAO Technical Instructions to facilitate the transport of hazardous materials in international commerce.

2. 49 U.S.C. 5120(b) authorizes the Secretary of Transportation to ensure that, to the extent practicable, regulations governing the transportation of hazardous materials in commerce are consistent with standards adopted by international authorities. This final rule corrects various errors made during the development of the December 20, 2004 final rule and printing process. To this end, as discussed in detail earlier in this preamble, the December 20, 2004 final rule incorporates changes into the HMR based on the Thirteenth Revised Edition of the UN Recommendation, Amendment 32 to the IMDG Code, and the 2005-2006 ICAO Technical Instructions, which became effective January 1, 2005. The continually increasing amount of hazardous materials transported in international commerce warrants the harmonization of domestic and international requirements to the greatest extent possible. Harmonization serves to facilitate international transportation; at the same time, harmonization ensures the safety of people, property, and the environment by reducing the potential for confusion and misunderstanding that could result if shippers and transporters were required to comply with two or more conflicting sets of regulatory requirements. While the intent of this rulemaking is to align the HMR with international standards, we review and consider each amendment on its own merit based on its overall impact on transportation safety and the economic implications associated with its adoption into the HMR. Our goal is to harmonize without sacrificing the current HMR level of safety and without imposing undue burdens on the regulated public. Thus, as discussed in detail in the preamble of the December 20, 2004 final rule, there were several instances where we elected not to adopt a specific provision of the UN Recommendations, the IMDG Code or the ICAO Technical Instructions; further, we are maintaining a number of current exceptions for domestic transportation that should minimize the compliance burden on the regulated community.

This final rule is not a significant regulatory action under section 3(f) of Executive Order 12866 and was not reviewed by the Office of Management and Budget. This final rule is a non-significant rule under the Regulatory Policies and Procedures of the Department of Transportation [44 FR 11034]. The revisions adopted in this final rule do not alter the cost-benefit analysis and conclusions contained in the Regulatory Evaluation prepared for the December 20, 2004 final rule. The Regulatory Evaluation is available for review in the public docket for this rulemaking.

This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). This final rule preempts State, local and Indian tribe requirements but does not propose any regulation that 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. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.

The Federal hazardous material transportation law, 49 U.S.C. 5101-5127, contains an express preemption provision (49 U.S.C. 5125(b)) that preempts State, local, and Indian tribe requirements on certain covered subjects. Covered subjects are:

(1) The designation, description, and classification of hazardous materials;

(2) The packing, repacking, handling, labeling, marking, and placarding of hazardous materials;

(3) The preparation, execution, and use of shipping documents related to hazardous materials and requirements related to the number, contents, and placement of those documents;

(4) The written notification, recording, and reporting of the unintentional release in transportation of hazardous materials; and

(5) The design, manufacture, fabrication, marking, maintenance, recondition, repair, or testing of a packaging or container represented, marked, certified, or sold as qualified for use in transporting hazardous material.

This final rule addresses covered subject items (1), (2), (3), and (5) above and preempts State, local, and Indian tribe requirements not meeting the “substantively the same” standard. This final rule is necessary to incorporate changes adopted in international standards, effective January 1, 2005. If the changes in this final rule are not adopted in the HMR, U.S. companies, including numerous small entities competing in foreign markets, are at an economic disadvantage. These companies are forced to comply with a dual system of regulations. The changes in this rulemaking are intended to avoid this result. Federal hazardous materials transportation law provides at section 5125(b)(2) that, if DOT issues a regulation concerning any of the covered subjects, DOT must determine and publish in the Federal Register the effective date of Federal preemption. The effective date may not be earlier than the 90th day following the date of issuance of the final rule and not later than two years after the date of issuance. The effective date of Federal preemption is September 12, 2005.

This final rule was 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, and is required by statute, the funding and consultation requirements of Executive Order 13175 do not apply.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires an agency to review regulations to assess their impact on small entities unless the agency determines that a rule is not expected to have a significant impact on a substantial number of small entities. The corrections contained in this final rule will have little or no effect on the regulated industry. Based on the assessment in the regulatory evaluation, to the December 20, 2004 final rule, I hereby certify that, while this rule applies to a substantial number of small entities, there will not be a significant economic impact on those small entities. A detailed Regulatory Flexibility analysis is available for review in the docket.

This final rule has been developed in accordance with Executive Order 13272 (“Proper Consideration of Small Entities in Agency Rulemaking”) and DOT's procedures and policies to promote compliance with the Regulatory Flexibility Act to ensure that potential impacts of draft rules on small entities are properly considered.

This final rule imposes no new information collection requirements.

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 contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.

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.

The National Environmental Policy Act of 1969 (NEPA) requires Federal agencies to consider the consequences of major Federal actions and prepare a detailed statement on actions significantly affecting the quality of the human environment. In the December 20, 2004 final rule, we developed an assessment to determine the effects of these revisions on the environment and whether a more comprehensive environmental impact statement may be required. Our findings conclude that there are no significant environmental impacts associated with this final rule. Consistency in the regulations for the transportation of hazardous materials aids in the shipper's understanding of what is required and permits shippers to more easily comply with safety regulations and avoid the potential for environmental damage or contamination. For interested parties, an environmental assessment is available in the public docket.

Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the document (or signing the document, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit http://dms.dot.gov.