This rule is issued under Marketing Agreement No. 121 and Marketing Order No. 915, both as amended (7 CFR part 915), regulating the handling of avocados grown in South Florida, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This rule prohibits the handling of fresh market avocados in 20 bushel plastic field bins to destinations inside the production area. This rule also requires handlers to provide, at the time of inspection, information regarding the avocado count per container, which will, in turn, provide the Committee and the industry with information regarding the sizes of avocados packed. These changes are expected to decrease packing costs by reducing the annual loss of field bins and provide handlers with additional marketing information. The Committee unanimously recommended these changes at meetings held on September 8, 2004, and November 10, 2004.

Section 915.51(4) of the order provides authority for establishing container requirements for the handling of avocados. Section 915.51(6) of the order provides that any or all requirements effective pursuant to § 915.51(4) shall be different for the handling of avocados within the production area and outside the production area. Section 915.305 of the order's rules and regulations specifies the avocado container requirements.

Section 915.60 of the order provides authority for the Committee to require handlers to file reports and provide other information as may be necessary for the Committee to perform its duties. Section 915.150 specifies the requisite reporting requirements.

This rule amends § 915.305 by adding a prohibition to the handling of fresh market avocados in 20 bushel plastic field bins to all destinations within the regulated production area. This rule also amends § 915.150 by adding a requirement that handlers provide additional pack information at the time of inspection.

Currently, there are no specific container net weight or dimension requirements for avocados handled to destinations within the production area. However, shipments of avocados within the production area must meet maturity requirements and be inspected.

Prior to this action, 20 bushel plastic field bins (bins) were commonly being used for the purpose of moving avocados into the current of commerce within the production area (handling). Following the successful inspection of avocados packed in bins, the inspector would place a cardboard cover over the top of the bin and seal it with official Federal-State Inspection Service tape. The bins could then be transported and sold at the various markets throughout the production area. It should be noted that current container regulations do not authorize the use of field bins for shipments of avocados from within the production area to any point outside of the production area.

At the September 8, 2004, meeting, Committee members raised the issue that, each year, a large number of bins are apparently misappropriated during the avocado season. Committee consensus is that the ongoing loss of the bins has been costly to the industry, with the average cost of a bin about $150 each. By Committee estimates, over 700 bins were lost during the previous season at a cost of over $100,000 to the bins' owners.

In the harvesting of avocados, field bins have the primary function of transporting avocados from grove to packing facility. These bins are usually owned by individual packinghouses, or handlers, and are either delivered to, or picked up at, the packing facility by the harvester. Handlers have found that, much too often, field bins are not returned to the proper packinghouse, but are instead apparently misappropriated and used for other purposes. Because of their durability, many of the bins are acquired and reused by small cash handlers to pack and transport fruit in the production area. Often these bins are then abandoned at various market locations throughout the production area.

Once the bins are transported to different market locations throughout the production area, they become very difficult to recover. The avocado groves and packinghouses are situated around the Homestead, Florida area. However, the production area stretches into Central Florida. Consequently, bins often end up in locations over 100 miles away in cities such as Tampa and Orlando. Once the avocados have been marketed, the bins are purportedly used for many different purposes and may be dispersed even further from the originating packinghouse. Handlers are thus provided very little chance of recovering them for their own use.

The Committee believes that once bins are no longer authorized for use as containers for inspection, transportation, and sale of fresh avocados to markets within the production area, the movement of these containers will be limited, thus helping to reduce the number of lost bins. Cash handlers—generally handlers without packing facilities that tend to buy bulk avocados directly from the growers—will have to use different containers to pack and transport avocados within the production area. Committee members suggested that one such option could be a commonly available 20 bushel field bin constructed of cardboard rather than plastic, but at a much lower cost of about $10 each.

The Committee believes this change will help to restrict the use of the expensive plastic field bins to their originally intended purpose as a method of conveyance of avocados from grove to packinghouse. Prohibiting the use of these bins for the purpose of handling fresh market avocados will help prevent them from being transported to locations far from the originating packinghouse. This, in turn, will result in the majority of the bins remaining in the local area where they are much more easily recovered. Reducing the number of lost bins represents a significant potential cost savings for the industry. Therefore, the Committee voted unanimously to put this regulation in place.

This rule also revises the reporting requirements under the order. Handlers are currently reporting to the inspector at the time of inspection the number of 1/4 bushel, 1/2 bushel, and 4/5 bushel containers packed. This rule will not only require that handlers continue to provide the number and sizes of containers packed, but in addition, will require handlers to provide information regarding the number of avocados packed per type of container, or “count per container.” Knowing the actual number of avocados packed per container, in addition to the number and size of containers packed, the Committee and the industry will be armed with information regarding the various sizes of avocados being packed, as well as the quantity of different sizes being marketed. For example, a handler might report to the inspector on duty that the current lot being inspected has 500 1/4 bushel containers, 6 count each. This type of information would provide the Committee with information regarding the quantity of large avocados being packed.

Prior to this change, no data was collected that provided information on the various sizes of avocados being packed. During the Committee's discussion of this issue, handlers agreed that although they were getting information regarding the number of bushels packed, it would be valuable to have information regarding the volume of small, medium, and large avocados packed for market. The Committee believes the availability of such information will help both grower and handler when making harvesting and packing decisions.

Committee members agreed having information to help determine if any sizes are overrepresented or underrepresented in the marketplace would be valuable when planning and making marketing decisions. There is a close correlation between size and price. An oversupply of one size of fruit can negatively impact the price for that size and all sizes. By reporting count per container, the industry will be better able to gauge available markets by knowing the volume of what sizes are available.

An avocado will never reach full maturity unless it is severed from the tree. Consequently, harvest can be delayed without affecting the flavor or the quality of the fruit. This fact, in combination with information on sizes, allows the industry to make harvesting and marketing decisions based on available markets.

Without good information regarding the sizes available in the market, the market pipelines for certain sizes can become full, driving prices down. Having access to this information will help the industry better balance supply with demand. By knowing which sizes are in short supply, the industry can determine which sizes need to be harvested. Such information may help reduce periods of oversupply and the effect oversupply has on price, providing the industry with another tool to more efficiently market avocados and maximize industry returns.

Previously, at the time of inspection, handlers have been commonly reporting container size and quantity to the inspector, who then includes this information on the inspection certificates. Inspection certificates are then provided to the Committee, which compiles the information into reports that are in turn provided to the avocado industry. Committee members believe this procedure has been working effectively, and that having handlers report the count per container in the same fashion will be equally effective. In most cases, this is information the handler already has available, and thus needs only to supply it to the inspector at the time of inspection. As with the current report, the Committee will compile the data received and report it to the industry on a composite basis to aid growers and handlers in planning their individual operations and in making marketing decisions during the season.

This change will provide the industry with an indication of the volume of small, medium, and large sized avocados being shipped to the fresh market. With this change, handlers believe they will have more information on which to base their harvesting and marketing decisions. Consequently, the Committee voted unanimously to make this change.

Section 8e of the Act provides that when certain domestically produced commodities, including avocados, are regulated under a Federal marketing order, imports of that commodity must meet the same or comparable grade, size, quality, and maturity requirements. As this rule changes the container and reporting requirements under the domestic handling regulations, no corresponding changes to the import regulations are required.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.

There are approximately 150 producers of avocados in the production area and approximately 35 handlers subject to regulation under the order. Small agricultural producers are defined by the Small Business Administration (SBA) as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $6,000,000 (13 CFR 121.201).

According to the National Agricultural Statistics Service and Committee data, the average price for Florida avocados during the 2003-04 season was around $22.22 per 55-pound bushel container, and total shipments were near 660,000 55-pound bushel equivalents. Approximately 11 percent of all handlers handled 76 percent of Florida avocado shipments. Using the average price and shipment information provided by the Committee, nearly all avocado handlers could be considered small businesses under the SBA definition. In addition, based on avocado production, grower prices, and the total number of Florida avocado growers, the average annual grower revenue is approximately $98,000. Thus, the majority of Florida avocado producers may also be classified as small entities.

This rule changes the container and reporting requirements currently prescribed under the order. This rule prohibits the handling of fresh market avocados in 20 bushel plastic field bins to destinations within the production area. This rule also requires handlers to provide information regarding the avocado count per container, which in turn provides the Committee and the avocado industry with an indication of the sizes of avocados being packed. These changes are expected to decrease packing costs by reducing losses of field bins and to provide handlers with additional information on which to base their harvesting and marketing decisions. The Committee unanimously recommended these changes at meetings held on September 8, 2004, and November 10, 2004. This rule modifies the container and reporting requirements specified in §§ 915.305 and 915.150 respectively. The authorities for these actions are provided for in §§ 915.51 and 915.60.

It is not anticipated that this rule will generate any increased costs for handlers or producers. The Committee recommended the change in the container requirements in an effort to reduce the costs stemming from the misappropriation of bins. According to estimates, more than 700 bins were lost last season, at a cost to the industry of around $100,000. The primary purpose of these field bins is to provide bulk conveyance of harvested avocados from the groves to the packinghouses. However, a segment of the industry has been using them to pack and transport avocados to markets within the production area. Handlers have found that bins have been misappropriated, used for the handling of avocados for sale within the production area, and not subsequently returned to the rightful owner. With a prohibition on the use of the plastic bins in the handling of avocados to points within the production area, the Committee hopes to break this cycle and move those who prefer this size container to a lower cost alternative. While an alternative cardboard container that holds an equivalent volume costs only about $10, an individual plastic bin costs around $150. This change should result in a cost savings.

By requiring handlers to supply information on the count per container at the time of inspection, the industry will have access to additional shipment information. There is little or no cost associated with this action, as most handlers have this information readily available and will be supplying it along with information already provided. However, the industry will be able to use this data when making harvesting and marketing decisions. As previously noted, there currently is no reliable information widely available regarding the sizes of avocados in the channels of commerce. Without good information regarding the sizes available in the market, handlers have no way to tell whether a certain size is overly available or in short supply. Having access to this information will help the industry more efficiently balance supply with demand, thus reducing periods of oversupply and price variations, while providing the industry with another tool to better market its fruit, serve customers, and maximize returns.

This rule will have a positive impact on affected entities. The changes were recommended to reduce costs and improve available industry information. The reduction in costs associated with lost bins is expected to benefit all handlers regardless of size. The availability of more timely and accurate industry information will also benefit both large and small handling operations. Consequently, the opportunities and benefits of this rule are expected to be equally available to all.

An alternative to the actions recommended by the Committee was considered prior to making the final recommendations. The alternative considered was requesting the count per container from handlers on a voluntary basis. However, by requiring the information under authority of the order, all handlers will be required to participate, which will mean more accurate reporting and information. Therefore, this alternative was rejected.

This rule will require small and large avocado handlers to provide some additional information at the time of inspection. However, handlers have access to this information and are already providing other information at the time of inspection. This action requires no additional forms. The information will be recorded by the inspector on the inspection certificate.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), AMS has received OMB approval for the information collection requirements for this marketing order program. These requirements are approved under the Fruit Crops collection package, OMB No. 0581-0189 OMB. The reporting modifications made by this rule are small and will have no impact on the overall total burden hours approved by OMB.

As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. In addition, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule.

Further, the Committee's meetings were widely publicized throughout the avocado industry and all interested persons were invited to attend and participate in Committee deliberations. Like all Committee meetings, the September 8, 2004, and November 10, 2004, meetings were public meetings and all entities, both large and small, were able to express their views on these issues. Finally, interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/fv/moab.html. Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

This rule invites comments on changes to the container and reporting requirements currently prescribed under the Florida avocado marketing order. Any comments received will be considered prior to finalization of this rule.

After consideration of all relevant material presented, including the Committee's recommendations, and other information, it is found that this interim final rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) The Committee unanimously recommended these changes at public meetings and interested parties had an opportunity to provide input; (2) growers and handlers are aware of these changes; (3) the Florida avocado shipping season started May 16, 2005; and (4) this rule provides a 60-day comment period and any comments received will be considered prior to finalization of this rule.

The FAA proposed to amend 14 CFR part 39 with an AD for all AvCraft Dornier Model 328-100 airplanes. That action, published in the Federal Register on April 26, 2005 (70 FR 21344), proposed to require modifying the electrical wiring of the fuel pumps; installing insulation at the hand flow control and shut-off valves, and other components of the environmental control system; and installing markings at fuel wiring harnesses. That action also proposed to require revising the Airworthiness Limitations section of the Instructions for Continued Airworthiness to incorporate new inspections of the fuel tank system.

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

We have revised the applicability of the proposed AD to identify model designations as published in the most recent type certificate data sheet for the affected models. We also have revised the airplane manufacturer's name of the referenced service bulletin, Dornier Service Bulletin SB-328-00-445, dated August 23, 2004, to “AvCraft.”

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

This AD will affect about 6 airplanes of U.S. registry. The required actions will take about 70 work hours per airplane, at an average labor rate of $65 per work hour. Required parts will cost about $14,118 per airplane. Based on these figures, the estimated cost of the AD for U.S. operators is $112,008, or $18,668 per airplane.

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

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

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

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

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

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

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to all Cessna Model 650 airplanes was published as a supplemental notice of proposed rulemaking (NPRM) in the Federal Register on April 22, 2005 (70 FR 20844). That action proposed to require inspecting to determine the part number of the actuator control unit (ACU) and replacing the ACU with a new, improved ACU if necessary. That action also proposed to require revising the Limitations section of the airplane flight manual.

Interested persons have been afforded an opportunity to participate in the making of this amendment. We did not receive any comments on the proposed AD.

After careful review of the available data, the FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

There are approximately 357 airplanes of the affected design in the worldwide fleet. The FAA estimates that 285 airplanes of U.S. registry will be affected by this AD.

We estimate that it will take approximately 2 work hours per airplane to replace the ACU, and that the average labor rate is $65 per work hour. Required parts will cost approximately $3,000 per airplane, if the ACU is exchanged. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $892,050, or $3,130 per airplane.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions. The manufacturer may cover the cost of replacement parts associated with this proposed AD, subject to warranty conditions. As a result, the costs attributable to the proposed AD may be less than stated above.

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

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

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

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

The FAA proposed to amend 14 CFR part 39 with an AD for certain Boeing Model 747-400, -400D, -400F; 767-200, -300, -300F; and 777-200 and -300 series airplanes. That action, published in the Federal Register on August 6, 2004 (69 FR 47802), proposed to require installing a jumper wire between the wiring of the fire extinguisher switch and the fuel shutoff switch for each engine, and other specified actions.

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 states that they have accomplished the necessary airplane modifications on all affected Model 777-200 series airplanes in their fleet. In addition, the commenter states that no additional work is necessary to comply with Boeing Service Bulletin 777-28-0025, Revision 1, dated March 17, 2005. The commenter did not state any finding of service problems or errors in either the service bulletins or the AD, nor has the commenter suggested any change to the AD. We infer that the commenter has no objections to the AD.

One commenter requests that we coordinate the release of this AD with the pending revisions to Boeing Special Attention Service Bulletins 747-28-2238, dated October 18, 2001; and 777-28-0025, dated January 10, 2002. The commenter states that several information notices describe changes to the work instructions that will be incorporated into pending service bulletin revisions. If this AD is released calling for the un-revised service bulletins, each airline would need to request an alternative method of compliance (AMOC) to allow the incorporation of the revised work instructions. We infer that the commenter wants the AD to reference the revised service bulletins.

We agree with the commenter's request to reference the revised service bulletins. We have reviewed Boeing Service Bulletins 747-28-2238, Revision 1; and 777-28-0025, Revision 1; both dated March 17, 2005. The revisions incorporate the changes described in the information notices. Paragraph (f) of this AD has been revised to refer to Revision 1 of Boeing Service Bulletins 747-28-2238 and 777-28-0025. Paragraph (g) of the proposed AD already gives credit for actions done before the effective date of this AD in accordance with the original issues of these service bulletins, so no change is needed to the final rule in this regard.

One commenter requests that the AD be revised to allow the use of standard materials in accordance with Chapter 20 of the Boeing Standard Wiring Practices Manual in place of the specific Boeing part number called out in the applicable Boeing service bulletins. While no justification is provided, the commenter contends that the use of such standard materials would maintain an equivalent level of safety for the modification.

We do not agree with the commenter's request to use the standard materials since it is not clear what materials would be substituted or how the materials are equivalent in safety. The final rule has not been changed in this regard. However, if operators care to provide technical justification, they may request approval of an AMOC from the FAA in accordance with paragraph (h) of this AD.

We have removed reference to Boeing Special Attention Service Bulletin 767-28-0066, Revision 1, dated May 29, 2003, from paragraph (g) of this AD. The reference is the same as that in paragraph (f) of this AD. Paragraph (e) of this AD already gives credit for work done before the effective date of the AD.

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

This AD will affect about 1,882 airplanes worldwide. We estimate that 579 airplanes of U.S. registry will be affected by this AD. The following table provides the estimated costs for U.S. operators to comply with this AD.

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

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

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

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

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

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

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

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

The FAA proposed to amend 14 CFR part 39 with an AD for certain Airbus Model A319, A320, and A321 series airplanes. That action, published in the Federal Register on January 31, 2005 (70 FR 4789), proposed to require replacing the cargo ventilation extraction duct at frame 65 with a new duct, and relocating the temperature sensor in the aft cargo compartment.

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

The commenter requests that we change the proposed AD to refer to Airbus Service Bulletin A320-21-1141, Revision 01, dated December 17, 2004. The proposed AD refers to Airbus Service Bulletin A320-21-1141, dated April 7, 2004, as the acceptable source of service information for the accomplishment of the proposed actions.

We agree with the commenter's request. The procedures in Revision 01 of the referenced service bulletin are essentially the same as those in the original issue. Accordingly, we have revised paragraph (f) of this AD to refer to Revision 01 of the service bulletin as the appropriate source of service information for accomplishing the required actions. We have also added a new paragraph (g) (and re-identified subsequent paragraphs accordingly) to state that modifications accomplished before the effective date of this AD per the original issue of the service bulletin are acceptable for compliance with this AD.

The commenter notes that Airbus Service Bulletin A320-52-1124, Revision 01, dated December 17, 2004, is mentioned in the referenced French airworthiness directive and the referenced service information. The commenter states that Service Bulletin A320-52-1124 is also considered necessary to accomplish the restriction of airflow through the aft cargo compartment. The commenter adds that since airworthiness directives are issued to address safety concerns, and not portions of a safety concern, both modifications should be mandated in this proposed AD. The commenter states that combining these requirements into one AD also provides the added benefit of a central reference point in the case that an operator may need to make a future determination on whether the safety concern was fully addressed on an airplane or fleet of airplanes. The commenter adds that issuing separate ADs for the same safety concern seems to complicate the process.

We acknowledge the commenter's request; however, Service Bulletin A320-52-1124 was referenced in another rulemaking action, which was issued on February 22, 2005 (Docket No. FAA-2005-20453; Directorate Identifier 2004-NM-270-AD). That proposed AD was issued in response to French airworthiness directive F-2004-172, dated October 27, 2004. That proposed AD would require replacing the water drain valves in the forward and aft cargo doors with new valves. The proposed compliance time is 6 months. In light of the fact that the compliance times are different, and the actions were addressed in two separate French airworthiness directives, the rulemaking actions will not be combined. No change to the AD is made in this regard.

The commenter states that it agrees with the need to accomplish the proposed changes to meet airworthiness standards; however, it has not seen any data that lend this issue a high degree of urgency. The commenter recommends that the compliance time specified in the proposed AD be changed to the next heavy maintenance visit or S-check, instead of the 24-month compliance time. The commenter adds that this change would reduce the economic impact to operators, such as the commenter, who would be forced to take airplanes out of revenue service in order to meet the 24-month window.

We do not agree with the commenter. In developing an appropriate compliance time for this action, we considered the safety implications, operators' normal maintenance schedules, and the compliance time recommended by the airplane manufacturer for the timely accomplishment of the required actions. The compliance time of 24 months after the effective date of this AD is based on airplane utilization overall, and is consistent with the compliance time specified in the French airworthiness directive. In addition, the operator provided no data to indicate that a compliance time extension will ensure safety. In consideration of these items, we have determined that compliance within 24 months after the effective date of this AD will provide an acceptable level of safety and is an appropriate interval of time wherein the required actions can be accomplished during scheduled maintenance intervals for the majority of affected operators. However, according to the provisions of paragraph (h) of this AD, we may approve a request to adjust the compliance time if the request includes data that justify that a different compliance time would provide an acceptable level of safety. No change to the AD is made in this regard.

The commenter disagrees with the labor estimates specified in the proposed AD. The commenter states that the FAA has reduced the estimates in the original issue of the referenced service bulletin by approximately one-third. The commenter adds that the airplane manufacturer typically underestimates, rather than overestimates, manpower requirements for repair and modification service bulletins. The commenter recommends that the FAA consider the average estimate of 51.3 work hours, as specified in the referenced service bulletin, to be a minimum labor cost; however, 75 work hours per airplane is a better estimate for accomplishing the actions specified in the referenced service information.

We do not agree that it is necessary to change the work hours in this AD. This number represents the time necessary to perform only the actions actually required by the AD. The actions in this final rule reflect only the direct costs of the specific required actions based on the best data available from the manufacturer. The cost analysis in AD rulemaking actions typically does not include incidental costs such as the time required to gain access and close up, time necessary for planning, or time necessitated by other administrative actions. Those incidental costs, which may vary significantly among operators, are almost impossible to calculate. The compliance time in this AD should allow ample time for operators to do the required actions at the same time as scheduled major airplane inspection and maintenance activities, which would reduce the additional time and costs associated with special scheduling. No change to the AD is made 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 change described previously. This change will neither increase the economic burden on any operator nor increase the scope of the AD.

The following table provides the estimated costs for U.S. operators to comply with this AD.

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

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

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

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

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

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

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

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

The FAA proposed to amend 14 CFR part 39 with an AD for all McDonnell Douglas Model MD-90-30 airplanes. That action, published in the Federal Register on December 16, 2004 (69 FR 75277), proposed to require replacing existing dual anti-skid control manifolds (DACM) with new, improved or reworked and reidentified DACMs; inspecting the inlet filters and other components of the DACMs for damage; replacing any damaged DACM components with new or serviceable components; and flushing/cleaning the braking system prior to replacing the inlet filters.

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

We have changed the name of the manufacturer shown in the service bulletins cited in the final rule to conform to the Office of the Federal Register requirements for materials incorporated by reference in ADs.

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

This AD will affect about 115 airplanes worldwide and 24 airplanes of U.S. registry. The required actions will take about 8 work hours per airplane, at an average labor rate of $65 per work hour. Required parts will cost between $8,000 and $240,780 per airplane. Based on these figures, the estimated cost of the AD for U.S. operators is between $204,480 and $5,791,200, or between $8,520 and $241,300 per airplane.

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

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

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

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

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

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

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

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

The Direction Generale de L'Aviation Civile (DGAC), which is the airworthiness authority for France, notified us that an unsafe condition might exist on Turbomeca S.A. Arriel 2B turboshaft engines with Modification TU62A incorporated. The DGAC advises that several reports of the HMU acceleration controller axle sticking have been received that resulted in engine overspeed and in-flight engine shutdown, or uncommanded in-flight engine shutdown. These events can occur when the fuel system is either in manual control mode or mixed control mode. They are most likely to occur during an HMU failure simulation or during autorotation training. HMU acceleration controller axle sticking can result in an excessive decrease in engine speed when the manual control is used to reduce fuel flow. It can also result in an excessive increase in engine speed when moving the control back to the flight notch. We are issuing this AD to prevent loss of control of engine fuel flow in the manual control mode or mixed control mode, leading to engine overspeed and in-flight engine shutdown, or uncommanded in-flight engine shutdown.

We have reviewed and approved the technical contents of Turbomeca Alert Mandatory Service Bulletin (ASB) No. A292 73 2814, Update No. 1, dated January 11, 2005. That ASB describes procedures for inspecting, lubricating, and checking for proper operation of the HMU acceleration controller axle. The DGAC classified this service bulletin as mandatory and issued AD F-2004-139, dated August 18, 2004, in order to ensure the airworthiness of these Arriel 2B turboshaft engines in France.

This Turbomeca Arriel 2B turboshaft engine model is manufactured in France. It is type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Under this bilateral airworthiness agreement, the DGAC has 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 Arriel 2B turboshaft engines of the same type design. We are issuing this AD to prevent loss of control of engine fuel flow in the manual control mode or mixed control mode, leading to engine overspeed and in-flight engine shutdown, or uncommanded in-flight engine shutdown. This AD requires initial and repetitive inspections, cleaning, lubrication, and checks for proper operation of the HMU acceleration controller axle. 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. We also found 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-2005-21624; Directorate Identifier 2005-NE-17-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. The Web site includes 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 .

A proposal to amend 14 CFR part 39 by superseding AD 2003-18-03, Amendment 39-13294 (68 FR 52832, September 8, 2003), for the specified model helicopters was published in the Federal Register on March 8, 2005 (70 FR 11166). The action proposed to add the Eurocopter Model EC155B1 helicopters to the applicability and continue to require, within the next 10 hours time-in-service (TIS), inspecting the hose for crazing, pinching, distortion, or leaks at the torque link hinge and replacing the hose before further flight, if necessary. Also proposed was continuing to require, at the next 100-hour TIS inspection, inspecting the hose and the emergency flotation gear pipe to ensure adequate clearance, and adjusting the landing gear leg, if necessary.

The Direction Générale De L'Aviation Civile (DGAC), the airworthiness authority for France, notified us that an unsafe condition may exist on Eurocopter Model EC 155 B1 helicopters as well as the other affected model helicopters that are included in AD 2003-18-03. The DGAC has advised in their AD No. F-2004-099, dated July 7, 2004, that a report of a wheel brake hose compression due to interference with a clamp that attaches the emergency flotation gear pipe led to the issue of AD No. 2002-475-007, which defined measures applicable to EC 155 version B aircraft. DGAC AD No. 2002-475-007 was cancelled by its Revision 1, and the DGAC issued AD No. F-2004-099, dated July 7, 2004, which supersedes and covers the requirements of AD 2002-475-007, extends its affectivity to EC 155 version B1 aircraft, and refers to revised service information, with no change to the technical content. The DGAC issued that AD after Eurocopter issued Alert Service Bulletin No. 32A004, Revision 1, dated June 16, 2004. The revised service bulletin added the Eurocopter Model EC155B1 to it's applicability but didn't change any technical content.

Eurocopter has also replaced Alert Telex No. 32.00.09, dated July 31, 2002, with Alert Service Bulletin No. 32.00.09, dated October 27, 2003 that contained no technical changes. The service bulletin applies to Eurocopter Model AS365N, N1, N2, and N3 helicopters. The DGAC classified this service bulletin as mandatory and issued AD No. F-2002-474-058 R1, dated March 3, 2004. This superseding AD contains references to both of these revised documents.

These helicopter models are manufactured in France and are type certificated for operation in the United States under the provisions of 14 CFR 21.29 and the applicable bilateral agreement. Pursuant to the applicable bilateral agreement, the DGAC has kept us 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 these type designs that are certificated for operation in the United States.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were received on the proposal or on our determination of the cost to the public. We have determined that air safety and the public interest require the adoption of the rule as proposed.

We estimate that this AD will affect 48 helicopters of U.S. registry. It will take approximately 5 work hours per helicopter to accomplish each inspection and 5 work hours to replace any parts, as necessary. The average labor rate is $65 per work hour. Required parts will cost approximately $459 for the hose; if replacing the hose on two sides is required, the cost is approximately $918. Based on these figures, the total cost impact of this AD on U.S. operators is estimated to be $1,568 per helicopter, or $56,448 for the entire fleet, assuming 75 percent of the fleet (36 helicopters) is equipped with emergency flotation gear, that one inspection is done, and that the hose on two sides is replaced on those 36 helicopters).

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.

This amendment adopts a new AD for Agusta Model AB412 Series helicopters. This action requires inspecting the tip block and the tip closure for adhesive bond voids and removing any blade with an excessive void from service. This action also requires modifying certain blades by installing shear pins and tip closure rivets in the tip area of all affected blades. This amendment is prompted by reports of in-flight loss of tip blocks and tip closures resulting in minor to substantial damage. This condition, if not detected, could result in loss of a tip block or tip closure, loss of a blade, and subsequent loss of control of the helicopter.

Ente Nazionale per l'Aviazione Civile (ENAC), the airworthiness authority for Italy, notified the FAA that an unsafe condition may exist on Agusta Model AB 205A1, AB212, and AB412 helicopters. ENAC advises modifying the blade tip block and tip closure retention.

Agusta has issued Bollettino Tecnico No. 412-88, Revision A, dated August 17, 2004 (BT 412-88, Revision A), which specifies inspecting and modifying blade, part number (P/N) 212-010-750-ALL, tip block and tip closure retention by providing additional fasteners in the tip area to prevent future loss of either the tip block or tip closure. Recent investigations into the in-flight loss of a blade, P/N 212-010-750-105, tip block, revealed that the countersunk screws retaining the tip block were installed incorrectly resulting in inadequate tip block retention. Additionally, reports have been submitted of the loss of the tail rotor tip cap closure possibly due to an inadequate bond in this area. ENAC classified this service information as mandatory and issued AD 2004-351, dated September 3, 2004, to ensure the continued airworthiness of these helicopters in Italy.

These helicopter models are manufactured in Italy and are type certificated for operation in the United States under the provisions of 14 CFR 21.29 and the applicable bilateral agreement. Pursuant to the applicable bilateral agreement, ENAC has kept the FAA informed of the situation described above. The FAA has examined the findings of ENAC, reviewed all available information, and determined that AD action is necessary for products of these type designs that are certificated for operation in the United States.

This unsafe condition is likely to exist or develop on other helicopters of the same type designs if they become registered in the United States. Therefore, this AD is being issued to prevent loss of the tip block or tip closure, loss of a blade, and subsequent loss of control of the helicopter. This AD requires, within 100 hours time-in-service (TIS):

• Inspecting the tip block and tip closure for voids and, before further flight, removing any blade that has voids in excess of the Component Repair and Overhaul Manual Limitations.

• Inspecting the tip block attachment countersink screws in four locations to determine if the head of each countersunk screw is flush with the surface of the abrasion strip and the skin. If any of the screws are set below the surface of the abrasion strip and the skin or are covered with filler material, before further flight, install shear pins.

• Installing tip closure rivets on all affected blades.

Accomplish the actions in accordance with the service bulletin described previously.

None of the Agusta Model AB412 Series helicopters affected by this action are on the U.S. Register. All helicopters included in the applicability of this rule are currently operated by non-U.S. operators under foreign registry; therefore, they are not directly affected by this AD action. However, the FAA considers that this rule is necessary to ensure that the unsafe condition is addressed in the event that any of these subject helicopters are imported and placed on the U.S. Register in the future.

Should an affected helicopter be imported and placed on the U.S. Register in the future, it would take approximately 3 work hours to accomplish the required actions at an average labor rate of $65 per work hour. Required parts would cost $25. Based on these figures, the cost impact of this AD would be $220 per helicopter.

Since this AD action does not affect any helicopter that is currently on the U.S. register, it has no adverse economic impact and imposes no additional burden on any person. Therefore, notice and public procedures hereon are unnecessary and the amendment may be made effective in less than 30 days after publication in the Federal Register .

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-2005-21589; Directorate Identifier 2004-SW-44-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 notice and prior public comment are unnecessary in promulgating this regulation; therefore, it can be issued immediately to correct an unsafe condition in aircraft since none of these model helicopters are registered in the United States. We have also determined that this regulation is not a “significant regulatory action” under Executive Order 12866. It has been determined further that this action involves an emergency regulation under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). If it is determined that this emergency regulation otherwise would be significant under DOT Regulatory Policies and Procedures, a final regulatory evaluation will be prepared and placed in the AD docket.

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

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

The FAA proposed to amend 14 CFR Part 39 with an AD for certain Boeing Model 737-200, -200C, -300, -400, -500, -600, -700, -700C, -800, and -900 series airplanes. That action, published in the Federal Register on November 10, 2004 (69 FR 65099), proposed to require a one-time detailed inspection for discrepancies of the secondary fuel vapor barrier of the wing center section, and related investigative/corrective actions if necessary.

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

One commenter, an operator, agrees with the proposed AD.

One commenter, an operator, requests that a note be added to paragraph (g) of the AD to allow the use of Boeing 737 Nondestructive Testing (NDT) Manual, Part 6, Section 53-30-27, paragraph 3, for determining vapor barrier thickness. The commenter contends that using this method for determining vapor barrier thickness provides an inspection procedure equivalent to that called out in Boeing Special Attention Service Bulletin 737-57-1261, dated February 27, 2003, and will allow operators to avoid any need for special tooling.

We do not agree. We have reviewed the specified section of the NDT manual and found that it does not adequately describe an inspection procedure that is equivalent to that described in the service bulletin. However, we infer from the comment that the operator is proposing the use of an alternate tool for measuring coating thickness. Boeing Special Attention Service Bulletin 737-57-1261, dated February 27, 2003, page 40, paragraph F., note (a), states that the isoscope with the probe listed in paragraph F. is only one example of a nonconductive coating thickness gage (NCCTG) that may be used and that any NCCTG is acceptable as long as it has a thickness range from 0.001 to 0.045 inch. We have confirmed with the manufacturer that the service bulletin clearly states the requirements for the tooling required to measure the thickness of the vapor barrier and no additional guidance is required. We have not changed the final rule in this regard.

One commenter, an operator, requests that the compliance time be extended from 48 to 72 months. The commenter states that, assuming an effective date for the AD of January 2005, it has 15 aircraft that will not be scheduled for C check maintenance within the proposed 48-month compliance time. The commenter believes that this out-of-phase maintenance would result in financial hardship; therefore, the commenter would like to see the compliance time extended as requested.

We do not agree. In developing an appropriate compliance time for this action, we considered the urgency associated with the subject unsafe condition and the practical aspect of accomplishing the required modification within a period of time that corresponds to the normal scheduled maintenance for most affected operators. However, under the provisions of paragraph (i) of the final rule, we may approve requests for adjustments to the compliance time if data are submitted with the requests to substantiate that such adjustments would provide acceptable levels of safety. We have not changed the final rule in this regard.

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

This AD will affect about 1,521 airplanes of U.S. registry. There are about 3,861 airplanes of the affected design in the worldwide fleet. We estimate the average labor rate to be $65 per work hour. We estimate that it will take the number of work hours shown in the following table to accomplish the actions for each airplane. Parts and materials are standard and are to be supplied by the operator. Based on these figures, the cost impact of the AD is estimated to range between $325 and $910 per airplane.

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

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

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

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

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

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

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

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

On Monday, April 18, 2005, the FAA proposed to revise part 71 of the Federal Aviation Regulations (14 CFR part 71) to add to the Class E airspace upward from 700 ft. and 1,200 ft. above the surface at Shishmaref, AK (70 FR 20095). The action was proposed in order to add Class E airspace sufficient in size to contain aircraft while executing two new SIAPs for the Shishmaref Airport. The new approaches are (1) Area Navigation (Global Positioning System) (RNAV (GPS)) Runway (RWY) 23, original; and (2) RNAV (GPS) RWY 5, original. Additional Class E controlled airspace extending upward from 700 ft. and 1,200 feet above the surface in the Shishmaref Airport area is established by this action. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No public comments have been received, thus, the rule is adopted as proposed.

The area will be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class E airspace areas designated as 700/1200 foot transition areas are published in paragraph 6005 of FAA Order 7400.9M, Airspace Designations and Reporting Points , dated August 30, 2004, and effective September 16, 2004, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

This revision to 14 CFR part 71 revises Class E airspace at Shishmaref, Alaska. Additional Class E airspace is being created to accommodate aircraft executing two new SIAPs and will be depicted on aeronautical charts for pilot reference. The intended effect of this rule is to provide adequate controlled airspace for IFR operations at Shishmaref Airport, Shishmaref, Alaska.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle 1, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart 1, Section 40103, Sovereignty and use of airspace. Under that section, the FAA is charged with prescribing regulations to ensure the safe and efficient use of the navigable airspace. This regulation is within the scope of that authority because it creates Class E airspace sufficient in size to contain aircraft executing instrument procedures for the Shishmaref Airport and represents the FAA's continuing effort to safely and efficiently use the navigable airspace.

On Monday, April 18, 2005, the FAA proposed to revise part 71 of the Federal Aviation Regulations (14 CFR part 71) to create new Class E airspace upward from 700 ft. and 1,200 ft. above the surface at Kaltag, AK (70 FR 20087). The action was proposed in order to add Class E airspace sufficient in size to contain aircraft while executing two new Standard Instrument Approach Procedures and two new departure procedures for the Kaltag Airport. The new approaches are (1) Area Navigation (Global Positioning System) (RNAV (GPS)) Runway (RWY) 3, original; and (2) RNAV (GPS) RWY 21, original. The new departure procedures are (1) IPOXE ONE Departure and (2) KACLE ONE Departure. New Class E controlled airspace extending upward from 700 feet and 1,200 feet above the surface in the Kaltag Airport area is established by this action. The coordinates for the Kaltag Airport were listed incorrectly in the proposal and are corrected in the Final Rule. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No public comments have been received; thus the rule is adopted as proposed.

The area will be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class E airspace areas designated as 700/1200 foot transition areas are published in paragraph 6005 of FAA Order 7400.9M, Airspace Designations and Reporting Points , dated August 30, 2004, and effective September 16, 2004, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

This revision to 14 CFR part 71 establishes Class E airspace at Kaltag, Alaska. This additional Class E airspace was created to accommodate aircraft executing two new SIAP's and two new departure procedures and will be depicted on aeronautical charts for pilot reference. The intended effect of this rule is to provide adequate controlled airspace for IFR operations at Kaltag Airport, Kaltag, Alaska.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle 1, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart 1, Section 40103, Sovereignty and use of airspace. Under that section, the FAA is charged with prescribing regulations to ensure the safe and efficient use of the navigable airspace. This regulation is within the scope of that authority because it creates Class E airspace sufficient in size to contain aircraft executing instrument procedures for the Kaltag Airport and represents the FAA's continuing effort to safely and efficiently use the navigable airspace.

History

On Monday, April 18, 2005, the FAA proposed to revise part 71 of the Federal Aviation Regulations (14 CFR part 71) to add to the Class E airspace upward from 700 ft. above the surface at Emmonak, AK (70 FR 20085). The action was proposed in order to add Class E airspace sufficient in size to contain aircraft while executing amended SIAPs for the Emmonak Airport. The amended approaches are (1) Area Navigation (Global Positioning System) (RNAV (GPS)) Runway 16, Amendment 1 (Amdt.) 1; (2) RNAV (GPS) RWY 34, Amdt. 1; Very High Frequency Omni-range (VOR) RWY 16, Amdt. 1; and VOR RWY 34, Amdt. 1. Additional Class E controlled airspace extending upward from 700 ft. above the surface in the Emmonak Airport area is established by this action. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No public comments have been received, thus, the rule is adopted as proposed.

The area will be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class E airspace areas designated as 700/1200 foot transition areas are published in paragraph 6005 of FAA Order 7400.9M, Airspace Designations and Reporting Points , dated August 30, 2004, and effective September 16, 2004, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

This revision to 14 CFR part 71 revises Class E airspace at Emmonak, Alaska. Additional Class E airspace is being created to accommodate aircraft executing amended SIAPs and will be depicted on aeronautical charts for pilot reference. The intended effect of this rule is to provide adequate controlled airspace for IFR operations at Emmonak Airport, Emmonak, Alaska.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle 1, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart 1, Section 40103, Sovereignty and use of airspace. Under that section, the FAA is charged with prescribing regulations to ensure the safe and efficient use of the navigable airspace. This regulation is within the scope of that authority because it creates Class E airspace sufficient in size to contain aircraft executing instrument procedures for the Emmonak Airport and represents the FAA's continuing effort to safely and efficiently use the navigable airspace.

On Monday, April 18, 2005, the FAA proposed to revise part 71 of the Federal Aviation Regulations (14 CFR part 71) to create new Class E airspace upward from 700 ft. above the surface at Coldfoot, AK (70 FR 20088). The action was proposed in order to add Class E airspace sufficient in size to contain aircraft while executing two new Standard Instrument Approach Procedures and a new departure procedure for the Coldfoot Airport. The new approaches are (1) Area Navigation (Global Positioning System) (RNAV (GPS)) Runway (RWY) 1, original; and (2) RNAV (GPS)-A, original. The new departure procedure is the Bettles One Departure. New Class E controlled airspace extending upward from 700 feet above the surface in the Coldfoot Airport area is established by this action. An error in the airspace description was discovered in the proposal. The extension to the 6.7-mile radius of the airport was incorrectly listed as the 042° bearing from the airport. The correct bearing is the 222° bearing from the airport. The error is corrected in the final rule. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No public comments have been received; thus, the rule is adopted as proposed.

The area will be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class E airspace areas designated as 700/1200 foot transition areas are published in paragraph 6005 of FAA Order 7400.9M, Airspace Designations and Reporting Points, dated August 30, 2004, and effective September 16, 2004, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

This revision to 14 CFR part 71 establishes Class E airspace at Coldfoot, Alaska. This additional Class E airspace was created to accommodate aircraft executing new instrument procedures and will be depicted on aeronautical charts for pilot reference. The intended effect of this rule is to provide adequate controlled airspace for IFR operations at Coldfoot Airport, Coldfoot, Alaska.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle 1, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart 1, Section 40103, Sovereignty and use of airspace. Under that section, the FAA is charged with prescribing regulations to ensure the safe and efficient use of the navigable airspace. This regulation is within the scope of that authority because it creates Class E airspace sufficient in size to contain aircraft executing instrument procedures for the Coldfoot Airport and represents the FAA's continuing effort to safely and efficiently use the navigable airspace.

On Monday, April 18, 2005, the FAA proposed to revise part 71 of the Federal Aviation Regulations (14 CFR part 71) to create new Class E airspace upward from 700 ft. and 1,200 ft. above the surface at Chalkyitsik, AK (70 FR 20090). The action was proposed in order to add Class E airspace sufficient in size to contain aircraft while executing two new Standard Instrument Approach Procedures for the Chalkyitsik Airport. The new approaches are Area Navigation (Global Positioning System) (RNAV (GPS)) Runway (RWY) 3, original; and (2) RNAV (GPS) RWY 21, original. New Class E controlled airspace extending upward from 700 feet and 1,200 feet above the surface in the Chalkyitsik Airport area is established by this action. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No public comments have been received; thus the rule is adopted as proposed.

The area will be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class E airspace areas designated as 700/1200 foot transition areas are published in paragraph 6005 of FAA Order 7400.9M, Airspace Designations and Reporting Points , dated August 30, 2004, and effective September 16, 2004, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

This revision to 14 CFR part 71 establishes Class E airspace at Chalkyitsik, Alaska. This additional Class E airspace was created to accommodate aircraft executing two new SIAP's and will be depicted on aeronautical charts for pilot reference. The intended effect of this rule is to provide adequate controlled airspace for IFR operations at Chalkyitsik Airport, Chalkyitsik, Alaska.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle 1, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart 1, Section 40103, Sovereignty and use of airspace. Under that section, the FAA is charged with prescribing regulations to ensure the safe and efficient use of the navigable airspace. This regulation is within the scope of that authority because it creates Class E airspace sufficient in size to contain aircraft executing instrument procedures for the Chalkyitsik Airport and represents the FAA's continuing effort to safely and efficiently use the navigable airspace.

On Monday, April 18, 2005, the FAA proposed to revise part 71 of the Federal Aviation Regulations (14 CFR part 71) to create new Class E airspace upward from 700 ft. and 1,200 ft. above the surface at Kiana, AK (70 FR 20091). The airport name used in the proposal was incorrectly listed as Kiana, AK Airport. The correct name is Bob Baker Memorial Airport, Kiana, AK. This error is corrected in the Final Rule. The action was proposed in order to add Class E airspace sufficient in size to contain aircraft while executing two new Standard Instrument Approach Procedures and a Departure Procedure for the Bob Baker Memorial Airport. The new approaches are Area Navigation (Global Positioning System) (RNAV (GPS)) Runway (RWY) 6, original; and (2) RNAV (GPS) RWY 24, original. The new departure procedure is the Selawik ONE Departure. New Class E controlled airspace extending upward from 700 feet and 1,200 feet above the surface in the Bob Baker Memorial Airport area is established by this action. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No public comments have been received; thus the rule is adopted as proposed.

The area will be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class E airspace areas designated as 700/1200 foot transition areas are published in paragraph 6005 of FAA Order 7400.9M, Airspace Designations and Reporting Points, dated August 30, 2004, and effective September 16, 2004, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

This revision to 14 CFR part 71 establishes Class E airspace at Bob Baker Memorial Airport, Kiana, AK. This additional Class E airspace was created to accommodate aircraft executing two new SIAPs and a new departure procedure and will be depicted on aeronautical charts for pilot reference. The intended effect of this rule is to provide adequate controlled airspace for IFR operations at Bob Baker Memorial Airport, Kiana, AK.

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

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

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart 1, Section 40103, Sovereignty and use of airspace. Under that section, the FAA is charged with prescribing regulations to ensure the safe and efficient use of the navigable airspace. This regulation is within the scope of that authority because it creates Class E airspace sufficient in size to contain aircraft executing instrument procedures for the Bob Baker Memorial Airport and represents the FAA's continuing effort to safely and efficiently use the navigable airspace.

The Social Security Disability Amendments of 1980 (the 1980 Amendments), Public Law 96-265, amended titles II and XVI of the Act to provide for the continuation of payment of disability benefits under the Social Security or SSI program to certain individuals whose disability medically ceases while the individual is engaged in a program of vocational rehabilitation. Section 301 of the 1980 Amendments added sections 225(b) and 1631(a)(6) of the Act to provide that the payment of benefits based on disability shall not be terminated or suspended because the physical or mental impairment, on which the individual's entitlement or eligibility is based, has or may have ceased, if:

• The individual is participating in an approved vocational rehabilitation program under a State plan approved under title I of the Rehabilitation Act of 1973, and

• The Commissioner of Social Security determines that completion of the program, or its continuation for a specified period of time, will increase the likelihood that the individual may be permanently removed from the disability benefit rolls.

The purpose of these benefit continuation provisions is to encourage individuals to continue participating in the approved vocational rehabilitation program in which they are engaged at the time their disability ceases in “those exceptional cases where the administration is able to determine that continuation in a vocational rehabilitation program will increase the likelihood of the individual's being permanently removed from the disability rolls.” S. Rep. No. 408, 96th Cong., 1st Sess. 50 (1979).

Our regulations implementing the provisions of the Act added by section 301 of the 1980 Amendments provide that we may continue an individual's benefits (and, when the individual receives benefits as a disabled worker, the benefits of his or her dependents) after the individual's impairment is no longer disabling if:

• The individual's disability did not end before December 1980, the effective date of the provisions of the Act added by section 301 of the 1980 Amendments;

• The individual is participating in an appropriate program of vocational rehabilitation, that is, one that has been approved under a State plan approved under title I of the Rehabilitation Act of 1973 and that meets the requirements outlined in 34 CFR part 361 for a rehabilitation program;

• The individual began the program before his or her disability ended; and

• We have determined that the individual's completion of the program, or his or her continuation in the program for a specified period of time, will significantly increase the likelihood that the individual will not have to return to the disability benefit rolls.

Our regulations provide that these continued benefits generally will be stopped with the month the individual completes the program, stops participating in the program for any reason, or we determine that the individual's continuing participation in the program will no longer significantly increase the likelihood that the individual will be permanently removed from the disability benefit rolls.

Section 9112 of the Omnibus Budget Reconciliation Act of 1987 (OBRA 1987), Public Law 100-203, amended section 1631(a)(6) of the Act to extend eligibility for continued benefits under that section to individuals who receive SSI benefits based on blindness and whose blindness ends while they are participating in an approved State vocational rehabilitation program. This amendment was effective April 1, 1988. We implemented this amendment through the issuance of operating instructions reflecting the extension of eligibility for continued benefits under section 1631(a)(6) of the Act to individuals receiving SSI blindness benefits. In addition, when we added §§ 416.2201(b) and 416.2212 to our regulations governing payments under the vocational rehabilitation cost reimbursement program, we included rules to reflect the expanded scope of the benefit continuation provision under section 1631(a)(6) of the Act resulting from the amendment made by section 9112 of OBRA 1987.

Section 5113 of the Omnibus Budget Reconciliation Act of 1990 (OBRA 1990), Public Law 101-508, amended sections 225(b) and 1631(a)(6) of the Act to permit the continuation of benefit payments on account of an individual's participation in a non-State vocational rehabilitation program. Section 5113 amended sections 225(b) and 1631(a)(6) of the Act to allow the continuation of payment of Social Security disability benefits or SSI disability or blindness benefits to an individual whose disability or blindness ends while he or she is participating in a program of vocational rehabilitation services approved by us. These amendments extended to Social Security disability beneficiaries and SSI disability or blindness beneficiaries who medically recover while participating in an approved non-State vocational rehabilitation program the same benefit continuation rights applicable to individuals participating in an approved State vocational rehabilitation program. The amendments made by section 5113 of OBRA 1990 were effective for benefits payable for months beginning on or after November 1, 1991, and applied to individuals whose disability or blindness ended on or after that date. We implemented these amendments through the issuance of operating instructions reflecting the extension of eligibility for continued benefits under sections 225(b) and 1631(a)(6) of the Act to individuals who medically recover while participating in an approved non-State vocational rehabilitation program.

The Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Public Law 104-193, amended section 1614(a)(3) of the Act to require redeterminations of the eligibility for SSI benefits based on disability of individuals who attain age 18 (age-18 redeterminations). The law requires us to redetermine the eligibility of individuals who attain age 18 and who were eligible for SSI benefits based on disability for the month before the month in which they attained age 18. In these disability redeterminations, the law requires us to use the rules for determining initial eligibility for adults (individuals age 18 or older) filing new applications for benefits. The medical improvement review standard used in continuing disability reviews does not apply to these disability redeterminations.

In § 416.987(b) of our regulations, we explain the rules for adult applicants that we use in redetermining the eligibility of an individual who has attained age 18. If we find that the individual is not disabled, we will find that his or her disability has ended, as explained in § 416.987(e). For an individual whose disability has ended as a result of an age-18 redetermination using the rules described in § 416.987(b), and who is participating in a program of vocational rehabilitation services when disability ends, our operating guides provide that we will consider the individual for eligibility for continued benefits under section 1631(a)(6) of the Act. For benefits to continue, the individual must be participating in an approved program of vocational rehabilitation services. In addition, the completion or continuation of the program must satisfy the test of increasing the likelihood of the individual's permanent removal from the benefit rolls. The individual must meet all of the other requirements of SSI eligibility.

On December 17, 1999, the Ticket to Work and Work Incentives Improvement Act of 1999, Public Law 106-170, became law. Section 101(a) of this law added a new section 1148 of the Act to establish the Ticket to Work and Self-Sufficiency Program (Ticket to Work program). The purpose of the Ticket to Work program is to expand the universe of service providers available to beneficiaries with disabilities who are seeking employment services, vocational rehabilitation services, or other support services to assist them in obtaining, regaining, and maintaining self-supporting employment.

Under the Ticket to Work program, the Commissioner of Social Security may issue a ticket to Social Security disability beneficiaries and disabled or blind SSI beneficiaries for participation in the program. Each beneficiary has the option of using his or her ticket to obtain services from a provider known as an employment network or from a State vocational rehabilitation agency. The beneficiary will choose the employment network or State vocational rehabilitation agency, and the employment network or State vocational rehabilitation agency will provide services. Employment networks will also be able to choose whom they serve.

We published final regulations implementing the Ticket to Work program in the Federal Register on December 28, 2001 (66 FR 67370). The regulations were effective on January 28, 2002. Under the regulations, service providers who provide vocational rehabilitation services, employment services, or other support services can qualify as employment networks and serve beneficiaries under the Ticket to Work program. The expansion of options available to beneficiaries to obtain these services is intended to enhance the choices of beneficiaries in getting the services they need to obtain, regain and/or maintain employment.

Section 101(b) of the Ticket to Work and Work Incentives Improvement Act of 1999 amended sections 225(b)(1) and 1631(a)(6)(A) of the Act by deleting “a program of vocational rehabilitation services” and inserting in its place “a program consisting of the Ticket to Work and Self-Sufficiency Program under section 1148 or another program of vocational rehabilitation services, employment services, or other support services.” The amended provisions of these sections now expressly authorize the continuation of benefit payments under section 225(b) or 1631(a)(6) of the Act to an individual whose disability or blindness ceases when the individual is participating in a program consisting of the Ticket to Work program under section 1148 of the Act or another program of vocational rehabilitation services, employment services, or other support services approved by the Commissioner of Social Security. The amendments did not change the requirement in sections 225(b)(2) and 1631(a)(6)(B) of the Act that, for an individual to qualify, the Commissioner of Social Security must determine that the completion of the program, or its continuation for a specified period of time, will increase the likelihood that the individual may be permanently removed from the disability or blindness benefit rolls.

Part B of IDEA, as amended (20 U.S.C. 1400 et seq. ), establishes a program for assistance to States to provide special education and related services to children with disabilities. Part B of IDEA is administered by the U.S. Department of Education.

The concept of a “disability” under IDEA is distinct from the definition of disability under title II or title XVI of the Social Security Act. A person may have a disability for the purposes of part B of IDEA, but not meet or no longer meet the definition of disability under the title II or title XVI programs. In this preamble, when we use the term “individual with a disability,” “student with a disability,” or a similar term with reference to IDEA, we intend the term to have the same meaning as the term “child with a disability” as defined in section 602(3) of IDEA, as amended (20 U.S.C. 1401(3)).

In order for a State to receive assistance under part B of IDEA, an individualized education program (IEP) must be developed, reviewed and revised for each child with a disability. The IEP must be developed, reviewed and, if appropriate, revised by a team including, among others, the student, if appropriate, and his or her parents, a special education teacher, the student's regular education teacher, if the child is or may be participating in the regular education environment, and other individuals who have knowledge or special expertise concerning the child. For each student with a disability beginning at age 16 (or younger if determined appropriate by the IEP team), the IEP must include a statement of needed transition services for the student that promotes movement from school to post-school activities. Based on the individual student's needs, transition services might include postsecondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation.

In the NPRM, we cited language from Public Law 105-17, the IDEA Amendments of 1997, enacted on June 4, 1997. Congress made changes to IDEA in Public Law 108-446 enacted on December 3, 2004. Effective July 1, 2005, the IDEA's provision regarding transition services in an IEP will provide that “beginning not later than the first IEP to be in effect when the child is 16, and updated annually” the child's IEP must include “appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training education, employment, and where appropriate, independent living skills; * * * the transition services (including courses of study) needed to assist the child in reaching those goals; and * * * beginning not later than 1 year before the child reaches the age of majority under State law, a statement that the child has been informed of the child's rights under this title, if any, that will transfer to the child on reaching the age of majority under section 615(m).

The National Longitudinal Transition Study (NLTS) was mandated by the U.S. Congress in 1983, and describes the experiences and outcomes of youth with disabilities nationally during secondary school and early adulthood. It was conducted from 1987 through 1993 by SRI International under contract number 300-87-0054 with the Office of Special Education Programs, Department of Education. (The electronic file of this document is available at http://www.sri.com/policy/cehs/publications/dispub/nlts/nltssum.html. ) The NLTS provides evidence of the importance of supporting students with disabilities to stay in school. The study showed that:

• Students with disabilities who stay in school have better post-school outcomes than their peers who dropped out of school.

• Students with disabilities who stayed in school were more likely to enroll in postsecondary vocational or academic programs.

• There was a consistently positive relationship between staying in school and employment success.

In addition, the NLTS documented the importance of vocational education and work experience programs in school:

• Students with disabilities who took occupationally oriented vocational education were significantly less likely to drop out of school than students who did not.

• Students with disabilities who participated in work experience programs missed significantly less school and were less likely to fail a course or drop out of high school.

• For the majority of students with disabilities (those with learning, speech or emotional disabilities or mild mental retardation) vocational education in high school was related to a higher probability of finding competitive jobs and higher earnings.

• For students with orthopedic or health impairments, participation in high school work experience programs translated into a higher likelihood of employment and higher earnings after high school.

The NLTS also documented that the post-school paths of youths with disabilities reflected their transition goals. Twelfth-graders who had a transition goal related to competitive employment or to postsecondary education were more likely to find jobs or go on to postsecondary schools than students who did not have such a goal.

The NLTS suggests that any efforts that encourage students with disabilities to stay in school and complete their educational and vocational training are important to improving post-school outcomes for students with disabilities. It indicates that students with disabilities drop out of school at a higher rate than students in the general population (38 percent vs. 25 percent).

On February 1, 2001, President George W. Bush announced his New Freedom Initiative to promote the full participation of people with disabilities in all areas of society by increasing access to assistive and universally designed technologies, expanding educational and employment opportunities, and promoting full access to community life. Because a solid education is critical to ensuring that individuals with disabilities have an equal chance to succeed, the New Freedom Initiative includes goals of expanding access to quality education for youths with disabilities, ensuring that they receive support to transition from school to employment, and improving the high school graduation rates of students with disabilities. These final rules fully support the education and employment goals embodied in the New Freedom Initiative.

These final rules update our regulations to reflect amendments to sections 225(b) and 1631(a)(6) of the Act. They also make certain other changes to our regulations regarding eligibility for continued benefit payments under these sections of the Act.

On August 1, 2003, we published a Notice of Proposed Rulemaking (NPRM) in the Federal Register (68 FR 45180) and provided a 60-day period for interested parties to comment. We received comments from 201 commenters. We summarize the significant comments we received on the proposed rules and provide our responses to those comments later in this preamble under “Public Comments on the Notice of Proposed Rulemaking.” As we explain below, in these final regulations, we are making certain changes from the proposed rules in response to public comments.

Subsequent to the publication of the NPRM, one of the sections that we proposed to amend (and that we are now amending in these final regulations) was redesignated as a result of a separate publication of a final rule affecting the regulations under the SSI program. Specifically, on September 11, 2003, we published a final rule in the Federal Register (68 FR 53506), relating to access to information held by financial institutions, that redesignated § 416.1321, “ Suspensions; general, ” as § 416.1320, and added a new § 416.1321, “ Suspension for not giving us permission to contact financial institutions, ” effective October 14, 2003. As a result of this change, the section identified in the NPRM as § 416.1321 is now § 416.1320. Reflecting this change, the final regulations that we are publishing today amend § 416.1320. Therefore, in explaining the changes to this section in this preamble, we identify the section affected as § 416.1320, rather than § 416.1321 as provided in the NPRM.

We are revising §§ 416.1320(d), 416.1331(a) and (b), 416.1338(a) and (b), and 416.1402(j) to reflect the OBRA 1987 amendment that extended the scope of section 1631(a)(6) of the Act to cover individuals receiving SSI benefits based on blindness. We are revising these sections to indicate that an individual whose eligibility for SSI benefits is based on blindness and whose blindness ends due to medical recovery while he or she is participating in a program of vocational rehabilitation services, employment services, or other support services may be eligible for continued benefits under section 1631(a)(6) of the Act. We also are reflecting this expanded scope of the statute in new § 416.1338(e), that we discuss later in this preamble.

We are revising the introductory text of § 416.1338(a) to indicate that individuals who receive SSI benefits based on disability and whose disability is determined to have ended under the rules in § 416.987(b) and (e)(1) in an age-18 redetermination may have their benefit payments continued under section 1631(a)(6) of the Act if the individual meets all other requirements for continued benefits.

The NLTS demonstrated that there was a consistently positive relationship between staying in school and employment success, and it suggested that any efforts that encourage students with disabilities to stay in school and complete their educational and vocational training are important to improving post-school outcomes for students with disabilities. The NLTS also documented the importance of vocational education and work experience programs in school.

We are, therefore, amending our rules to encourage young people with disabilities to stay in school and complete their educational and vocational training, and to encourage the families of students with disabilities to support them in preparing for employment and self-sufficiency. This is consistent with the goals of the President's New Freedom Initiative to expand access to quality education for youth with disabilities, ensure that they receive support to transition from school to employment, and improve the high school graduation rates of students with disabilities. Specifically, we are providing that, if a student age 18 through 21 is receiving services under an IEP or similar individualized program or plan, and if the student's disability ceases as a result of a continuing disability review or an age-18 disability redetermination, we will consider that the student's completion of or continuation in the IEP will increase the likelihood that he or she will not have to return to the disability or blindness benefit rolls.

We are providing benefit continuation for students whose disability is determined to have ended as a result of an age-18 redetermination and who are receiving services under IEPs in order to encourage young people with disabilities to stay in school and complete their educational and vocational training, and to encourage their families to support them in preparing for employment and self-sufficiency. We are providing benefit continuation on this basis for students with disabilities through age 21, since each State can receive a grant of assistance under IDEA for serving individuals with disabilities through age 21.

We are revising § 416.1338(a) to indicate that individuals who receive SSI benefits based on disability and whose disability is determined to have ended under the rules in § 416.987(b) and (e)(1) as a result of an age-18 redetermination may have their benefit payments continued under section 1631(a)(6) of the Act if the individual meets all other requirements for continued benefits. Young people whose disability has ended as a result of a redetermination of their eligibility at age 18 may have no improvement in their medical condition; they are found not disabled because they do not meet the initial disability standard that we apply to adult applicants. Therefore, we are adding rules to provide that we will consider completion of or continuation by a student age 18 through 21 in such a program to be analogous to the individualized determination that completion of or continuation in other approved programs of vocational rehabilitation services will improve an individual's level of education or work experience so that he or she would be more likely to be able to do other work that exists in the national economy, despite a possible future reduction in his or her residual functional capacity. On this basis, under the rules we are adding as §§ 404.328(b) and 416.1338(e)(2), we will determine that participation in such a program will increase the likelihood that an individual age 18 through 21 who is engaged in such a program at the time his or her disability ceases will not have to return to the disability rolls.

We are revising and updating our regulations regarding the type of program in that an individual must be participating in order to qualify for continued benefits. The regulations that we are revising by these final rules were based on the original provisions of sections 225(b) and 1631(a)(6) of the Act, and indicated that an individual whose impairment is no longer disabling may be considered for eligibility for continued benefits if he or she is participating in a vocational rehabilitation program provided by a State vocational rehabilitation agency. The amendments to sections 225(b)(1) and 1631(a)(6)(A) of the Act, made by OBRA 1990, extended consideration for continued benefits under sections 225(b) and 1631(a)(6) of the Act to individuals in approved non-State vocational rehabilitation programs.

We implemented the amendments made by OBRA 1990 by publishing operating instructions in 1992. These instructions identified an approved non-State vocational rehabilitation program as any non-State vocational rehabilitation service provider who meets one of the following criteria:

• Is licensed, certified, accredited, or registered, as appropriate, to provide vocational rehabilitation services in the State in which it provides services; or

• Is an agency of the Federal government ( e.g. , the Department of Veterans Affairs); or

• Is a provider approved to provide services under a Social Security Administration research or demonstration project.

The amendments to sections 225(b)(1) and 1631(a)(6)(A) of the Act, made by section 101(b) of Public Law 106-170, further expanded the type of program in which an individual must be participating to qualify for continued benefits. These sections of the Act now provide that an individual may be considered for eligibility for continued benefits if she or he is participating in a program consisting of the Ticket to Work program or another program of vocational rehabilitation services, employment services, or other support services approved by the Commissioner of Social Security.

We are revising §§ 404.316(c)(1), 404.337(c)(1), 404.352(d)(1), 404.902(s), 404.1586(g)(1), 404.1596(c)(4), 404.1597(a), 416.1320(d)(1), 416.1331(a) and (b), 416.1338(a), and 416.1402(j) to take account of the amendments to sections 225(b)(1) and 1631(a)(6)(A) of the Act. In the revisions to these sections of the regulations, we are using the term “an appropriate program of vocational rehabilitation services, employment services, or other support services” to refer to the program in which an individual must be participating in order to be considered for eligibility for continued benefits under sections 225(b) and 1631(a)(6) of the Act, as amended.

We are also amending our regulations by adding new §§ 404.327(a) and 416.1338(c) to explain the term “an appropriate program of vocational rehabilitation services, employment services, or other support services.” We explain that an appropriate program of vocational rehabilitation services, employment services, or other support services means one of the following:

• A program that is carried out under an individual work plan with an employment network under the Ticket to Work program;

• A program that is carried out under an individualized plan for employment with a State vocational rehabilitation agency operating under a State plan approved under title I of the Rehabilitation Act of 1973, as amended (29 U.S.C. 720-751);

• A program that is carried out under an individualized plan for employment with an organization administering a Vocational Rehabilitation Services Project for American Indians with Disabilities authorized under section 121 of part C of title I of the Rehabilitation Act of 1973, as amended (29 U.S.C. 741);

• A program of vocational rehabilitation services, employment services, or other support services that is carried out under a similar, individualized written employment plan with an agency of the Federal government ( e.g. , the Department of Veterans Affairs), a one-stop delivery system or specialized one-stop center described in section 134(c) of the Workforce Investment Act of 1998 (29 U.S.C. 2864(c)), or another provider of services approved by us;

• A program of vocational rehabilitation services, employment services, or other support services that is carried out under a similar, individualized written employment plan and provided by or coordinated by a public, private, or parochial school; or

• For a student age 18 through 21, an individualized education program (IEP) developed under policies and procedures approved by the Secretary of Education for assistance to States for the education of individuals with disabilities under the Individuals with Disabilities Education Act (IDEA), as amended (20 U.S.C. 1400 et seq. ).

We also are including an appropriate cross-reference to § 404.327(a) or § 416.1338(c) in the sections of the regulations that state the basic requirement that the individual must be participating in an appropriate program.

In the NPRM, we included the provisions relating to a program of services from an organization administering a Vocational Rehabilitation Services Project for American Indians with Disabilities in proposed §§ 404.327(a)(3) and 416.1338(c)(3). In these final rules, we deleted these proposed sections and incorporated the provisions in §§ 404.327(a)(2) and 416.1338(c)(2). We clarify in these rules that a program of services from an organization administering such a project must be carried out under an individualized plan for employment, which is the same requirement that applies to a program of services from a State vocational rehabilitation agency. Because of this change, we renumbered the provisions that were set out in the NPRM as proposed §§ 404.327(a)(4) and (5) and 416.1338(c)(4) and (5). In the final rules, these provisions are now §§ 404.327(a)(3) and (4) and 416.1338(c)(3) and (4), respectively.

The proposed rules also provided that a program of vocational rehabilitation services, employment services, or other support services that is carried out under an individualized written employment plan similar to an individualized plan for employment would qualify as an appropriate program, if it is carried out with a provider of services approved by us. Based on public comments we received on the NPRM, we are making changes in the provisions in §§ 404.327(a)(3) and 416.1338(c)(3) of the final rules. The final rules provide that a program of such services that is carried out under an individualized written employment plan similar to an individualized plan for employment will qualify as an appropriate program if it is carried out with an agency of the Federal government ( e.g. , the Department of Veterans Affairs), a one-stop delivery system or specialized one-stop center described in section 134(c) of the Workforce Investment Act of 1998 (29 U.S.C. 2864(c)), or another provider of services approved by us. We also include in §§ 404.327(a)(3) and 416.1338(c)(3) of the final rules examples of service providers that we may approve under these sections. We explain that providers we may approve include, but are not limited to—

• A public or private organization with expertise in the delivery or coordination of vocational rehabilitation services, employment services, or other support services ; or

• A public, private or parochial school that provides or coordinates a program of vocational rehabilitation services, employment services, or other support services carried out under an individualized program or plan.

We are amending our regulations to add new §§ 404.327(b) and 416.1338(d) to explain when an individual will be considered to be “participating” in the program. Sections 225(b) and 1631(a)(6) of the Act and the regulations that we are revising by these final rules did not define the term “participating.”

Our operating instructions have used the term “actively involved” in a vocational rehabilitation program and have defined active participation in a State vocational rehabilitation program as placement in one of four State vocational rehabilitation agency status codes: vocational rehabilitation plan developed and approved; counseling and guidance; physical restoration; and training, including vocational and college training. No other State vocational rehabilitation agency status codes are considered “active participation” for purposes of continued benefit payments. Other providers of vocational rehabilitation services, employment services, or other support services do not use these codes and several State vocational rehabilitation agencies no longer use them.

Our operating instructions on demonstrating participation in a non-State vocational rehabilitation program have required that we obtain information regarding the individual's status, including whether the individual is actively receiving services such as counseling and guidance, physical restoration, or academic, business, vocational, or other training. We have used this information to determine on a case-by-case basis whether the individual's status in the non-State program is equivalent to the State vocational rehabilitation status codes used to determine participation.

In the new §§ 404.327(b) and 416.1338(d), we explain the criteria we will now use to determine whether an individual is “participating” in the program for purposes of continued benefit payments. We explain that if an individual is in an appropriate program (as described in §§ 404.327(a) and 416.1338(c)), we will consider the individual to be participating in the program if the individual is taking part in the activities and services outlined in his or her plan. If the individual is age 18 through 21 and receiving services under an IEP developed under policies and procedures approved by the Secretary of Education for assistance to States for the education of individuals with disabilities under the Individuals with Disabilities Education Act, we will consider the individual to be participating in the program if he or she is taking part in the activities and services outlined in the IEP.

In response to public comments, we have provided in §§ 404.327(b)(3) and 416.1338(d)(3) that an individual will be considered to be participating in his or her program during interruptions in his or her program, provided that such interruptions are temporary. We explain that, for an interruption to be considered temporary, the individual must resume taking part in the activities and services outlined in his or her individual work plan, individualized plan for employment, similar individualized written employment plan, or individualized education program, as the case may be, no more than three months after the month the interruption occurred.

We are amending our regulations to add new §§ 404.328 and 416.1338(e) to explain how we will determine whether an individual's completion of or continuation in an appropriate program of vocational rehabilitation services, employment services, or other support services will increase the likelihood that the individual will not have to return to the disability benefit rolls. Sections 225(b) and 1631(a)(6) of the Act provide for continued benefits to persons who are no longer disabled due to medical recovery and who are participating in an appropriate program only if we can determine that completion or continuation of the program “will increase the likelihood” that the individual will remain permanently off the disability benefit rolls. As the individual is not disabled and, by definition, is able to engage in substantial gainful activity without the need for the program, there is already a “likelihood” that the individual will stay off the disability benefit rolls. Benefits may be continued to the individual only if completion or continuation of the program will “increase” this likelihood. For this reason, new §§ 404.328 and 416.1338(e) explain that we will determine that the completion of the program, or its continuation for a specified period of time, will increase the likelihood that the individual will not have to return to the disability benefit rolls if we find that the individual's completion of or continuation in the program will provide the individual with:

• Work experience so that the individual would more likely be able to do past relevant work despite a possible future reduction in his or her residual functional capacity ( i.e. , the work must last long enough for the individual to learn to do it, be substantial gainful activity, and have physical and mental requirements that the individual could meet even if his or her residual functional capacity were significantly reduced); or

• An improvement in any of the vocational factors of education or skilled or semi-skilled work experience so that he or she would more likely be able to adjust to other work that exists in the national economy, despite a possible future reduction in his or her residual functional capacity.

We are also providing a rule in §§ 404.328 and 416.1338(e) for students age 18 through 21 who are participating in an IEP developed under policies and procedures approved by the Secretary of Education for assistance to States for the education of individuals with disabilities under the IDEA, as amended (20 U.S.C. 1400 et seq. ). Under the final rules, we will find that these students' completion of or continuation in the program will increase the likelihood that they will not have to return to the disability or blindness benefit rolls.

Additionally, we are providing a rule in §§ 404.328 and 416.1338(e) to address that if an individual is receiving post IEP transition services, we will determine that the transition services will increase the likelihood that he or she will not have to return to the disability or blindness rolls if those services meet the requirements in §§ 404.328(a) and 416.1338(e)(1).

As a result of our revisions regarding how we will make a likelihood determination, we have eliminated the examples previously provided in §§ 404.316(c)(1)(iv) and 416.1338(a)(4) regarding making a “likelihood” decision because these examples do not directly illustrate the revised rules. Additionally, in our revisions to §§ 404.316(c), 404.337(c), 404.352(d), 404.902(s), 404.1586(g), 404.1596(c), 404.1597(a), 416.1320(d), 416.1331(b), 416.1338(a), and 416.1402(j), we have removed the modifier “significantly” from the phrase “significantly increase the likelihood” in these provisions to make the regulations conform more closely to the language of sections 225(b)(2) and 1631(a)(6)(B) of the Act.

We are revising §§ 404.316(c)(1), 404.337(c)(1), 404.352(d)(1), 404.1586(g)(1), 404.1596(c)(4), 416.1320(d) and 416.1338(a) to indicate that an individual's benefits may be continued after his or her impairment is no longer disabling (or, for SSI blindness benefits, after his or her blindness ends due to medical recovery) if:

• The individual is participating in an appropriate program of vocational rehabilitation services, employment services, or other support services, as described in new § 404.327(a) and (b) or in new § 416.1338(c) and (d);

• The individual began participating in the program before the date his or her disability or blindness ended; and

• We have determined under new § 404.328 or new § 416.1338(e) that the individual's completion of the program, or continuation in the program for a specified period of time, will increase the likelihood that the individual will not have to return to the disability or blindness benefit rolls.

In the revision of § 416.1338(a), we also explain that an individual whose disability is determined to have ended as a result of an age-18 redetermination may continue to receive SSI benefits if the requirements described above are met.

We are revising §§ 404.316(c)(2), 404.337(c)(2), 404.352(d)(2), 404.1586(g)(2) and 416.1338(b) to indicate that we will stop an individual's benefits with the earliest of these months:

• The month in which the individual completes the program;

• The month in which the individual stops participating in the program for any reason; or

• The month in which we determine under § 404.328 or § 416.1338(e) that continued participation will no longer increase the likelihood that the individual will not have to return to the disability or blindness benefit rolls.

We are revising the Exception in §§ 404.316(c)(2), 404.337(c)(2), 404.352(d)(2), and 404.1586(g)(2) by inserting the phrase “provided that you meet all other requirements for entitlement to and payment of benefits through such month” following the word “ends.”

We are adding new §§ 404.327, 404.328 and 416.1338(c), (d) and (e) to our regulations. In the new §§ 404.327(a) and 416.1338(c), we explain what we mean by “an appropriate program of vocational rehabilitation services, employment services, or other support services.” In new §§ 404.327(b) and 416.1338(d), we explain when we will consider an individual to be “participating” in the program.

We are adding new §§ 404.328 and 416.1338(e) to explain when we will find that an individual's completion of or continuation in an appropriate program of vocational rehabilitation services, employment services, or other support services will increase the likelihood that the individual will not have to return to the disability or blindness benefit rolls.

We are revising § 404.902(s) by removing reference to “an appropriate vocational rehabilitation program” and inserting in its place “an appropriate program of vocational rehabilitation services, employment services, or other support services.” We are making this same change in the heading of § 404.1586(g).

We are revising § 404.1597(a) to eliminate the references to November 1980 and December 1980; to remove reference to “an appropriate vocational rehabilitation program” and insert in its place “an appropriate program of vocational rehabilitation services, employment services, or other support services'; and to indicate that the individual must have started participating in the program before the date his or her disability ended.

We are revising § 416.1331(a) and (b). We are combining the discussion of the rules in the first and third sentences of the previous § 416.1331(a) into a single sentence to indicate that the last month for which we can pay SSI benefits based on disability or blindness is the second month after the month in which the individual's disability or blindness ends. We explain that § 416.1338 provides an exception to this rule for certain individuals who are participating in an appropriate program of vocational rehabilitation services, employment services, or other support services. We also are adding to § 416.1331(a) appropriate cross-references to the sections of the SSI regulations that explain when disability or blindness ends. In addition, we are removing from § 416.1331(a) the cross-reference to § 416.261 that discusses special SSI benefits for working individuals who have a disabling impairment or impairments. We consider inclusion of this cross-reference in § 416.1331 to be inappropriate since § 416.1331 is concerned with the termination of SSI benefits in cases in which an individual's disability or blindness has ended.

We are revising § 416.1331(b) by removing reference to “an appropriate vocational rehabilitation program” and inserting in its place “an appropriate program of vocational rehabilitation services, employment services, or other support services.” In addition, we are revising § 416.1331(b) by inserting the term “or blind” following the term “disabled” and inserting the term “or blindness” following the term “disability.”

In addition to the other revisions to § 416.1338, previously discussed, we are revising the section heading to read: “If you are participating in an appropriate program of vocational rehabilitation services, employment services, or other support services.”

We are revising § 416.1402(j) by removing “an appropriate vocational rehabilitation program” and inserting in its place “an appropriate program of vocational rehabilitation services, employment services, or other support services,” and by adding references to “blindness” and “blind.”

We are also making technical changes to cross-references in § 416.987(b) to reflect our current rules. The first and third sentences of § 416.987(b) refer to specific paragraphs in § 416.920, the regulation that provides our rules for the sequential evaluation process we use for making initial determinations in adult claims. In 2003, we added a new paragraph (d) to § 416.920 and redesignated the remaining paragraphs of the section. Therefore, we must change our references in § 416.987(b) from § 416.920(f) to § 416.920(g).

When we published the NPRM in the Federal Register on August 1, 2003 (68 FR 45180), we provided interested parties 60 days to submit comments. We received comments from 201 commenters, including national, State and community-based agencies and private organizations serving people with disabilities, parents of beneficiaries, and other individuals. We carefully considered the comments we received on the proposed rules in publishing these final regulations. The comments we received and our responses to the comments are set forth below. Although we condensed, summarized, or paraphrased the comments, we believe that we have expressed the views accurately and have responded to all of the significant issues raised.

In addition, several of the comments were about subjects that were outside the scope of this rulemaking. Except as noted, we have not summarized and responded to these comments below.

In general, most of the commenters supported our proposal to amend the rules to extend benefits to young people age 18 through 21 with disabilities who are participating in IEPs when their disabilities medically improve, or when they are determined not to meet the requirements for disability as adults, noting that society would profit from this investment in young people. Many commenters also supported our proposal to extend eligibility for continuation of disability benefits to individuals participating in other programs of vocational rehabilitation services, employment services, or other support services. Additionally, many commenters supported our proposal to remove the modifier “significantly” from the phrase “significantly increase the likelihood” to make the regulations conform more closely to the language in the Act.

Comment: Most of the commenters supported our proposal to amend the rules to extend benefits to young people age 18 through 21 with disabilities who are receiving services under an IEP developed under the IDEA. However, many of the commenters recommended extending this rule to all young people age 18 through 21 with disabilities who are attending public, private, or parochial schools who may not be receiving services under IDEA, noting that the new regulation should protect any young person who is losing his or her SSI disability benefit at age 18 and is enrolled in a school or an appropriate employment or vocational program.

Response: While many young people with disabilities are placed in private schools by public agencies and may be receiving services under an IEP under IDEA when their disability ends as a result of a continuing disability review or an age-18 redetermination, other young people with disabilities attending public, private or parochial schools may not be participating in an IEP when their disability ends. Our proposed rules and these final rules do not preclude these individuals from being eligible under the general rules for continuation of disability benefits to individuals participating in other programs that qualify as an appropriate program of vocational rehabilitation services, employment services, or other support services and that we determine will increase the likelihood that the individual will not have to return to the disability benefit rolls. The final rules in §§ 404.327(a)(3) and 416.1338(c)(3) define an appropriate program to include, among others, a program of vocational rehabilitation services, employment services, or other support services that is carried out under an individualized written employment plan similar to an individualized plan for employment—which is the plan used by State vocational rehabilitation agencies—with a provider of services approved by us. Under these rules, we may approve as a provider of services a public, private or parochial school having such a program. To make this clear, we are including provisions in final §§ 404.327(a)(3) and 416.1338(c)(3) to explain that a provider of services that we may approve under these sections may include, among others, a public, private or parochial school that provides or coordinates vocational rehabilitation services, employment services, or other support services.

Comment: Many commenters recommended applying the new regulations retroactively to young adults who have already lost their SSI and Medicaid benefits as a result of age-18 redeterminations, and who have been participating in vocational rehabilitation programs. They noted that SSA has been legally obligated to apply the provision for continuation of benefit payments in these cases since 1996, when Congress amended the law to require age-18 redeterminations.

Many commenters also recommended that we apply the new rules for persons in an IEP retroactively to young adults who have already lost their SSI and Medicaid benefits, have an IEP, and are not yet 22 years old.

Response: We have been applying the benefit continuation provision to recipients of SSI benefits whose disability was determined to have ended in an age-18 redetermination, but who were participating in a vocational rehabilitation program, under our operating guides since 1997, shortly after the enactment of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Public Law 104-193) required these redeterminations. From that time, we have had operating instructions in place that have interpreted section 1631(a)(6) of the Act to apply to SSI recipients participating in appropriate vocational rehabilitation programs whose disability ends as a result of an age-18 redetermination. These final rules incorporate into our regulations this interpretation of the Act. The final rules do not represent a change from this interpretation of the Act.

We are not adopting the commenters' second recommendation. These final regulations establish new rules for individuals age 18 through 21 who are participating in an IEP when their disabilities end as a result of a continuing disability review or an age-18 redetermination. As is our usual practice when we promulgate new regulations, we apply the regulations to cases that are pending in our administrative review process, including cases that are on remand from a Federal court. We do not reopen previous determinations or decisions that have become final, and that were correct under the policy then in use, to apply a new policy retroactively. Consistent with our usual practice when we amend our regulations, we will apply the new rules in determinations or decisions about continuation of benefit payments that we make on or after the effective date of these final regulations.

Comment: Many commenters recommended revising our proposed rules to extend benefits to individuals who complete an IEP but then continue on to another type of program of vocational rehabilitation services, employment services, or other support services. They indicated that in some instances such individuals are eligible for services under an IEP and subsequently under a vocational rehabilitation plan. They stated that there is no neat line that can be drawn between participating in a transitional program under an IEP and a continuation of that program under the auspices of the State vocational rehabilitation program. They also noted that the State VR agency is often required to coordinate with officials responsible for the public education of students with disabilities in order “to facilitate the transition of students with disabilities from the receipt of educational services in school to the receipt of vocational rehabilitation services under the responsibility of the State vocational rehabilitation agency.” They suggested that the rule should encourage transition from special education to State vocational rehabilitation programs when that transition is appropriate—particularly for those cases where the special education student is also a client of the State vocational rehabilitation agency prior to exiting special education. The commenters recommended that we consider school and vocational rehabilitation as part of a larger whole and that benefits should be continued under this rule for special education students who transition from their high school special education program into a rehabilitation program under the auspices of the State vocational rehabilitation agency.

Response: We did not adopt this recommendation. Our rules do not exclude a post-IEP transition plan from qualifying as an appropriate program of vocational rehabilitation service, employment services, or other support services. However, an IEP by itself comprises a unique and comprehensive plan of both education and employment services designed to provide the individual with the skills and training likely to keep him or her off the benefit rolls. Therefore, we have added language that completion or continuation in an IEP will increase the likelihood that you will not have to return to the disability or blindness benefit rolls. If an individual is receiving post IEP transition services, we will determine that the transition services will increase the likelihood that he or she will not have to return to the disability or blindness rolls if those services meet the requirements in §§ 404.328(a) and 416.1338(e)(1).

Comment: One commenter recommended that we redefine what would be considered “youth,” for example to age 25, provided that the individual was involved in either a vocational rehabilitation program or school (including post-secondary education). The commenter noted that this would allow for young people to have the supports they need to get a good start on having a career, making them less likely to be dependent on disability benefits for the majority of their adulthoods. He noted that very few people before the age of 25 have a firm grasp on careers and people with significant disabilities are often behind because of the barriers they face. For example, people with significant disabilities who are going to college may need to spend an extra year at school if they can't handle as many courses per semester.

Response: We did not use the term “youth” in our proposed rules, and we are not using the term in these final rules. The final rules provide for the continuation of benefit payments to students who are participating in an IEP when their disability ends and who are age 18 through age 21. We are providing benefit continuation for those students participating in an IEP through age 21, since each State can receive a grant of assistance from the Department of Education under IDEA to serve students with disabilities under IEP's through age 21.

The rules for continuation of benefits to individuals participating in an appropriate program of vocational rehabilitation services, employment services, or other support services are not limited to individuals in a particular age group, other than the rules for individuals participating in an IEP.

Comment: One commenter recommended suspending continuing disability reviews while an individual is participating in an approved and appropriate program of schooling or employment preparation, to bring these rules for continued benefit payments for individuals who are participating in such a program into full alignment with the provision for suspending medical reviews for beneficiaries who are using a ticket under the Ticket to Work program.

Response: This recommendation is outside the scope of these rules and would require a statutory change. Section 221(i) of the Act requires that we conduct continuing disability reviews if a person has been determined to be under a disability. Section 1148(i) of the Act provides an exception to this requirement. That section specifically provides that “During any period for which an individual is using, as defined by the Commissioner, a ticket to work and self-sufficiency issued under this section, the Commissioner (and any applicable State agency) may not initiate a continuing disability review or other review under section 221 of whether the individual is or is not under a disability or a review under title XVI similar to any such review under section 221.” The Act does not similarly provide for suspending continuing disability reviews for a beneficiary participating in any other approved and appropriate program of schooling or employment preparation.

Comment: A number of commenters noted that our current operating instructions provide that “once the VR program participation stops for more than 30 days, benefits will be ceased and cannot be resumed.” They note further that this procedure will not adequately address the reality of programs designed for children and young adults with disabilities, because “the nature of many impairments may result in times when it is not possible for the young adult to participate in the IEP for a temporary period. There also may be gaps in activity available under the IEP or a similar plan, for example, if a program is not in session during the summer months, but will resume again in the fall, or if there is a modest gap in time between one program and the next program that the person is scheduled to participate in under an IEP.”

Response: We agree with the commenters that our rules should account for short interruptions in an individual's participation. We have modified our definition of “participating” in the final rules. We have added §§ 404.327(b)(3) and 416.1338(d)(3) to indicate that an individual will be considered to be participating in his or her program under § 404.327(b)(1) or (2) or § 416.1338(d)(1) or (2) during interruptions in the program, provided that such interruptions are temporary. We explain that for an interruption to be considered temporary, the individual must resume taking part in the activities and services outlined in his or her individual work plan, individualized plan for employment, similar individualized written employment plan, or individualized education program, as the case may be, no more than three months after the month the interruption occurred.

Comment: One commenter requested that we describe good cause criteria for a break in participation in education or appropriate programs of vocational rehabilitation. The commenter noted that the proposed rules stated that we will stop benefits with the month the individual stops participating in the program for any reason and indicated that this could cause individuals to lose benefit continuation protection because of temporary exacerbations in their medical condition, personal emergencies, etc.

Response: As we explain in our previous response to comments regarding interruptions in participation, we have modified our definition of “participating” to account for temporary interruptions in a person's program, provided that the individual resumes taking part in the activities and services outlined in his or her plan or program, as appropriate, no more than three months after the month the interruption occurred.

Comment: A number of commenters stated that our current operating procedures provide that, for cases involving potential eligibility for benefits under section 225(b) or 1631(a)(6) of the Act, the State disability determination services (DDS) will send the case folder to SSA's Office of Disability Operations (ODO) to determine the issue of benefit continuation after releasing the notice of benefit termination to the claimant, and that ODO makes the determination before returning the case folder to the Social Security office for any necessary action to continue benefits. They express their concern that this means that there will generally be a gap in SSI benefits (and Medicaid) for people who could benefit from these rules, since the State DDS initiates the termination notice before we determine whether benefit continuation will apply. The commenters noted that unless this timing is changed for the young adult cases, it will defeat the purpose of sections 225(b) and 1631(a)(6) of the Act and undermine the effort to better coordinate the SSI, Medicaid, and educational systems.

Another commenter recommended that we determine continuing eligibility under this provision before we notify an individual of his or her benefit termination as a result of an age-18 redetermination. The commenter suggested that this would ensure continuity of benefits and program participation for these young people by ensuring that a determination of their continued eligibility for SSI benefits will be made before notifying them of a termination of their benefits as a result of an age-18 redetermination.

Response: If we have information indicating an individual's potential eligibility for continued benefit payments, our operating procedures will not result in a gap in the payment of Social Security or SSI benefits to an individual eligible for continued benefit payments. Benefits are not terminated until after we have determined that an individual is not entitled to continued benefit payments because he or she is not participating in an appropriate program of vocational rehabilitation services, employment services or other support services, or because completion or continuation of this program will not increase the likelihood that the individual may be permanently removed from the disability rolls. If we find that the beneficiary is entitled to continued benefit payments and all other eligibility requirements are met, benefit payments will continue without a gap.

Comment: One commenter recommended that we defer making a continuing disability determination for an individual who is participating in a program through an employment network under the Ticket to Work program or through a State vocational rehabilitation agency until after we make a determination regarding continuing benefit payments because of such participation.

Response: We did not adopt this recommendation. Individuals are eligible for continued benefit payments under section 225(b) and/or section 1631(a)(6) of the Act only if we have determined that they are no longer medically disabled. It would impose an unnecessary administrative burden on us to make a determination on the continuation of benefits before we determine whether the individual is still medically under a disability.

Comment: Several commenters urged us to suspend age-18 redeterminations for SSI recipients who are participating in a special education program until these final regulations are published. They also recommended that we apply this new policy to all cases that are in the adjudicative “pipeline.” These commenters indicated that halting terminations and applying the new policy to pending cases will benefit individuals turning 18 who, under the previous rules, might be unable to qualify for continued benefit payments since they are often still in school and do not have a vocational rehabilitation plan.

One commenter stated that in furtherance of the rehabilitation goals evidenced by the proposed regulations and the Ticket to Work and Work Incentives Improvement Act of 1999, we should apply the new rules on the continuation of benefit payment to all termination cases that are in the adjudicative process.

Response: The Act requires us to perform a disability redetermination for every individual who is eligible for SSI for the month before the month in which he or she attains age 18. We have no authority to change this requirement through our regulations.

We will apply these new rules to all continuing disability review and age-18 redetermination cases that are pending in our administrative review process as of the effective date of these final rules for any individuals who meet the eligibility requirements under these final rules.

Comment: Other commenters noted their understanding that persons receiving services from a variety of State and Federal agencies might qualify under § 404.327, including but not limited to, a person with a Plan to Achieve Self-Support (PASS), a person receiving services from the Department of Veterans Affairs, a person receiving services from a One Stop funded through the Department of Labor, or a person receiving services to achieve employment from a State developmental disabilities or mental health agency. They recommended that we clarify § 404.327(a) to state that these services are appropriate programs of vocational rehabilitation services, employment services, or other support services that are carried out under a similar individualized, written employment plan with another provider of services approved by us.

Response: We have adopted this recommendation in part. The PASS provision is an employment support that allows an SSI recipient who is disabled or blind to set aside income or resources, or both, for a specified time for use in achieving a work goal (see §§ 416.1180 to 416.1182 and §§ 416.1225 to 416.1227 of our existing regulations), so that we do not count them as income and resources for SSI purposes. Under the PASS provision, we do not count a disabled or blind recipient's income that he or she uses or sets aside to use to fulfill a PASS, or resources identified as necessary to fulfill a PASS, in determining the recipient's continuing eligibility for or amount of SSI benefits. The PASS provision is available for an SSI recipient who is currently disabled or blind, while the provision for continued benefits under section 1631(a)(6) of the Act applies to a person who is no longer disabled or blind. For this reason, a PASS will not qualify as an appropriate program of vocational rehabilitation services, employment services, or other support services for the purpose of the benefit continuation provision.

We are modifying the provisions in the final rules to indicate that agencies of the Federal government and one-stop delivery systems or specialized one-stop centers under the Workforce Investment Act of 1998 are approved providers of services. In §§ 404.327(a)(3) and 416.1338(c)(3) of the final rules, we provide that a program of vocational rehabilitation services, employment services, or other support services that is carried out under an individualized written employment plan similar to an individualized plan for employment will qualify as an appropriate program if it is carried out with an agency of the Federal government ( e.g. , the Department of Veterans Affairs), a one-stop delivery system or specialized one-stop center described in section 134(c) of the Workforce Investment Act of 1998 (29 U.S.C. 2864(c)), or another provider of services approved by us. We also include in §§ 404.327(a)(3) and 416.1338(c)(3) of the final rules examples of service providers that we may approve under these sections. We explain that providers we may approve include, but are not limited to—

• A public or private organization with expertise in the delivery or coordination of vocational rehabilitation services, employment services, or other support services; or

• A public, private or parochial school that provides or coordinates a program of vocational rehabilitation services, employment services, or other support services carried out under an individualized program or plan.

Comment: One commenter noted that he was opposed to extending these benefit continuation rules to include individuals who are still in school with an IEP if they are not actively enrolled in a VR plan or the Ticket to Work program. He observed that the Social Security Act, by continuing benefits to certain individuals who recover medically while participating in a VR program, provides an incentive for individuals to enroll in a program of VR services prior to age 18. Under this incentive, the individual may continue to receive benefit payments even if the individual's disability is determined to have ended as the result of a continuing disability review or an age-18 redetermination. The commenter states that this incentive would be removed if the regulations are changed to include individuals under an IEP, because not all IEPs include a feasible vocational goal that will lead to employment as defined in the Rehabilitation Act. He noted that individuals have the opportunity to enroll in a VR plan at age 16, or earlier, providing students with the ability to build a transition with a VR service provider, to access vocational evaluation or a situational assessment in time to receive recommendations to pursue high school courses required for vocational training or higher education.

Response: We do not agree that extending continued benefit payment protection to individuals enrolled in an IEP will remove an incentive for individuals to enroll in a program of VR services, employment services, or other support services directed toward an employment goal prior to age 18 or will prevent such individuals from receiving necessary services to obtain the skills and education to achieve an employment goal. Rather, extending the continued benefit payment protection to individuals age 18 to 21 enrolled in an IEP, will provide such individuals with additional choices in selecting a provider of services, and will encourage students participating in an IEP to continue or complete the program, thus assisting them in efforts to obtain the necessary skills and education needed for employment and self-sufficiency. Our rules do not exclude services received through a subsequent post-IEP transition plan from qualifying as an appropriate program of vocational rehabilitation service, employment services, or other support services.

Comment: One commenter stated that the proposed changes in the SSA regulations that affect a VR consumer's receipt of benefits are too stringent, leave too much room for error, and could lead to discretionary purging of consumers from the benefit rolls. The commenter cited our existing operating instructions and stated that we have a narrow definition of a consumer's active participation and successful completion of a VR program. The commenter noted that our operating instructions use the term “actively involved” in a vocational rehabilitation program and define active participation in a State vocational rehabilitation program as placement in one of four State vocational rehabilitation status codes.

Response: We disagree with the commenter. We added new §§ 404.327(b) and 416.1338(d) to explain how we will determine when an individual is considered to be participating in the program. As the commenter noted, our operating instructions have relied on the use of State agency codes to determine “active” participation. However, under these final rules, we will consider the individual to be participating in the program if the individual is taking part in the activities and services outlined in his or her individual work plan, individualized plan for employment, similar individualized written employment plan, or individualized education program regardless of the individual's status or stage in the program. These final rules will be reflected in revised operating instructions.

Comment: Several commenters recommended that we consider a variety of ways and actions to publicize the new rules regarding benefit continuation to ensure that the public, field offices, disability examiners, adjudicators, and other interested and concerned parties are aware of the new rules, especially as the rules apply to age-18 redeterminations and special issues for that age group. Commenters suggested that we should aggressively publicize and promote the benefit continuation rules through instructional materials such as administrative messages, operating procedures and other instructional material to assure that beneficiaries subject to age-18 redeterminations and continuing disability reviews are aware of the continued benefit protection provisions because of participation in an appropriate program of vocational rehabilitation services, employment services or other support services.

Response: These recommendations concern our administrative actions rather than regulatory action, and are therefore outside the scope of the rules. However, we will undertake a variety of steps to ensure effective implementation of these final rules, including some of the actions and procedures suggested by the commenters to publicize these rules.

Comment: A number of commenters noted that, to maximize the benefit of this benefit continuation provision in improving the long-term outcomes for young people with disabilities, it is essential that the families of these individuals and the individuals themselves receive notice of these protections not only at the time of a redetermination at age 18, but much earlier. They note that, if we were to provide this information to the family at regular intervals—such as annually, beginning on the child's 14th birthday—this information could help families better understand how the SSI, Medicaid, and educational systems can be coordinated to assist their child, even if the child might otherwise lose SSI at age 18. This could help to underscore the importance of developing realistic but ambitious IEPs and would be consistent with the transition start-up age in IDEA. They recommend that the final regulation be modified to provide that we will provide regular and periodic notice of these protections to parents of children receiving SSI and to the children themselves on an annual basis beginning at age 14 (or later if the child first becomes eligible for SSI after that date).

Response: We did not adopt this recommendation. It would not be feasible for us to send out individual notices to all beneficiaries on the disability benefit rolls to advise of the possibility of benefit continuation following a possible future determination of medical improvement or a determination that they do not meet the adult definition of disability at age 18. However, as we note in our response to the previous comment, we will undertake a number of actions to publicize these rules.

We have consulted with the Office of Management and Budget (OMB) and determined that these final rules meet the criteria for a significant regulatory action under Executive Order 12866, as amended by Executive Order 13258. Thus, they were subject to OMB review.

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

We have reviewed these final rules under the threshold criteria of Executive Order 13132, “Federalism,” and determined that they will not have substantial direct effects on the States, on the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government.

The Paperwork Reduction Act (PRA) of 1995 says that no persons are required to respond to a collection of information unless it displays a valid OMB control number. In accordance with the PRA, SSA is providing notice that OMB has approved the information collection requirements contained in §§ 404.316(c), 404.327, 404.328, 404.337(c), 404.352(d), 404.1586(g), 404.1596, 404.1597(a), 416.1320(d), 416.1331(a) and (b), and 416.1338 of these final rules. The OMB Control Number for this collection is 0960-0282, expiring March 31, 2006.

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 a NRPM. Publishing a NPRM, which would incorporate a comment period before a final rule could be issued and delay the rule's effective date, is contrary to public interest because immediate action is necessary to protect the public and waters of the United States.

For the same reasons, 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 Coast Guard will issue a broadcast notice to mariners and will place Coast Guard vessels in the vicinity of this zone to advise mariners of the restriction.

This rule is needed to protect spectator craft in the vicinity of the fireworks presentation from the hazards associated with the storage, preparation and launching of fireworks. Anchoring, mooring, or transiting within this zone is prohibited, unless authorized by the Captain of the Port, Jacksonville, FL or his designated representative. The temporary safety zone encompasses all waters within 500 yards in any direction around the fireworks barge during the storage, preparation and launching of fireworks. During the fireworks show, the barge will be located at approximate position 29°03′00″ N, 080°55′00″ W.

This regulation 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 the order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS) because these regulations will only be in effect for a short period of time and the impact on routine navigation is expected to be minimal.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominate in their field, 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 upon a substantial number of small entities because the regulations will only be in effect for a short period of time and the impact on routine navigation is expected to be minimal.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process. If the rule will affect your small business, organization, or government jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed under FOR FURTHER INFORMATION CONTACT for assistance in understanding this rule.

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 my result in the expenditure by State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Although this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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

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

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

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

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

We have analyzed this rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES .

On March 18, 2004, the Commonwealth of Pennsylvania, on behalf of Allegheny County, submitted a formal revision to its State Implementation Plan (SIP). The revision modifies existing regulations under ACHD's Rules and Regulations, Article XXI, sections 2101.20, 2105.01, and 2105.10 pertaining to surface coating processes in general, and creates new sections, 2105.74, 2105.75, and 2105.76 specific to the aerospace, automotive, and wood furniture industries, respectively. These new regulations are applicable to all automotive touch-up and repair facilities, certain aircraft maintenance facilities, and wood furniture manufacturing facilities that meet or exceed specified emission thresholds.

The March 18, 2004 revision to the Pennsylvania SIP, submitted by PADEP on behalf of Allegheny County, is based on recent PADEP amendments, EPA Control Technique Guidelines (CTGs), and National Emission Standards for Hazardous Air Pollutants (NESHAPS). This revision updates Allegheny County's Article XXI Air Pollution Control Regulations to make them consistent with previously SIP-approved PADEP regulations. Listed below is a summary of the SIP revision. For more detailed information on this revision, please see the technical support document (TSD) prepared for this rulemaking.

This revision adds and revises definitions in Article XXI, section 2101.20, Definitions, for terms that are used in the substantive sections of 2105.74, Aerospace Manufacturing and Rework, 2105.75, Mobile Equipment Repair and Refinishing, and 2105.76, Wood Furniture Manufacturing Operations.

This revision revises the VOC equivalency provisions of section 2105.01, Equivalent Compliance Techniques of the ACHD's Article XXI Air Pollution Control Regulations. The revision authorizes compliance with section 2105.01 by the use of an alternative method if that method is incorporated by the Department into an applicable federally enforceable installation permit or operating permit subject to review by EPA. The revision removes the requirement that alternative compliance methods for certain VOC requirements be submitted to EPA as a SIP revision. This action will streamline the process for establishing alternative compliance methods. EPA is approving this revision because any alternative compliance method would be reviewed by EPA as a part of the permitting process to ensure that it produced results equivalent to the method specified in the regulations, thereby not jeopardizing attainment of the ozone standard.

This revision to the ACHD's Article XXI, section 2105.10, Surface Coating Processes, revises equations for calculating VOC content, recalculates emission limits on a “per solids” basis, and modifies recordkeeping requirements. This regulation applies to a surface coating process category, regardless of the size, which emits or has emitted VOCs into the outdoor atmosphere in quantities greater than 3 pounds (1.4 kilograms) per hour, 15 pounds (7 kilograms) per day, or 2.7 tons (2,455 kilograms) per year during any calendar year since January 1, 1987. A person may not cause or permit the emission into the outdoor atmosphere of VOCs from a surface coating process category in the regulation, unless the VOC content of each as applied coating is equal to or less than the standard specified in the regulation, or the overall weight of VOCs emitted to the atmosphere is reduced through the use of vapor recovery or incineration or another method which is acceptable under section 2105.01, Equivalent Compliance Techniques.

This revision adds a new section, 2105.74 to ACHD's Article XXI, adopting requirements to control VOC emissions from coatings and solvents used in the aerospace industry. This regulation updates ACHD's Article XXI Air Pollution Control regulations to reflect existing PADEP aerospace regulations, establishing emission limits and reasonably available control technology (RACT) for aerospace sources that have the potential to emit (PTE) 25 tons a year or more of VOCs. The aerospace industry includes all manufacturing facilities that produce an aerospace vehicle or component and all facilities that repair these aerospace products. An aerospace vehicle or component is defined as, but not limited to, any fabricated part, processed part, assembly of parts, or completed unit of any aircraft including, but not limited to airplanes, helicopters, missiles, rockets, and space vehicles. In addition to manufacturing and repair facilities, some shops may specialize in providing a service, such as chemical milling, rather than actually producing a component or assembly. Aerospace coatings that meet the definitions of the specific coatings of the regulation shall meet those allowable VOC limits.

This revision adds a new section, 2105.75, to ACHD's Article XXI Air Pollution Control Regulations, establishing allowable VOC-content requirements for coatings used in mobile equipment repair and refinishing. This regulation updates ACHD's Article XXI Air Pollution Control regulations to reflect existing PADEP mobile equipment repair and refinishing regulations. This regulation establishes emission limits, equations for calculating content, application techniques, and housekeeping requirements for non-assembly plant mobile equipment repair and refinishing sources. This regulation applies to a person who applies mobile equipment repair and refinishing or color-matched coatings to mobile equipment or mobile equipment components. This regulation does not apply to a person who applies surface coatings to mobile equipment or mobile equipment components if the surface coating process is subject to the miscellaneous metal parts finishing requirements of the ACHD's Article XXI, section 2105.10, Surface Coating Processes, if the surface coating process is at an automobile assembly plant, or if the person applying the coatings does not receive compensation for the application of the coatings. A person subject to this regulation may not apply to mobile equipment or mobile equipment components any automotive pretreatment, automotive primer-surfacer, automotive primer-sealer, automotive topcoat, and automotive specialty coatings, including any VOC-containing materials added to the original coating supplied by the manufacturer, that contain VOCs in excess of the limits specified in the regulation.

This revision adds a new section, 2105.74 to ACHD's Article XXI, adopting new VOC regulations for wood furniture operations including wood furniture finishing, cleaning, and wash-off operations. This regulation establishes emission limits and control technology for sources that have a PTE of 25 tons a year or more of VOCs from wood furniture manufacturing operations. In addition to setting VOC emission limits, the new regulation establishes work practice standards, compliance procedures, monitoring requirements, recordkeeping and reporting requirements, and special provisions for facilities using an emissions averaging approach. The limits in this regulation do not apply to a coating used exclusively for determining product quality and commercial acceptance, touch-up and repair, and other small quantity coatings if the quantity of coating does not exceed 50 gallons per year for a single coating, and a total of 200 gallons per year for all coatings combined for the facility. The owner or operator of the facility must submit a written request to the Department which must be approved prior to the use of the coatings.

An owner or an operator of a facility subject to this regulation shall limit VOC emissions from wood furniture manufacturing operations by: (1) Applying either waterborne topcoats or a combination of sealers and topcoats and strippable spray booth coatings with a VOC content equal to or less than the standards specified in the regulation; (2) using an emissions averaging program which meets the requirements of the emissions averaging provisions of the regulation; (3) using a control system that achieves a reduction in emissions equivalent to 0.8 lb VOC/lb solids for topcoats, or 1.8 lbs VOC/lb solids for topcoats and 1.9 lbs VOC/lb solids for sealers; and (4) using a combination of the above methods.

EPA is approving a revision to the Allegheny County portion of the Pennsylvania SIP consisting of amendments to section 2101.20, Definitions, section 2105.01, Equivalent Compliance Techniques, and section 2105.10, Surface Coating Processes. In addition, EPA is also approving the addition to ACHD's Article XXI of new sections 2105.74, Aerospace Manufacturing and Rework, section 2105.75, Mobile Equipment Repair and Refinishing, and section 2105.76, Wood Furniture Manufacturing Operations. These revisions were submitted by the Commonwealth of Pennsylvania on behalf of Allegheny County on March 18, 2004, and update ACHD's Article XXI regulations to make them consistent with existing PADEP regulations.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register , EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on August 23, 2005, without further notice unless EPA receives adverse comment by July 25, 2005. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 23, 2005. Filing a petition for reconsideration by the Administrator of this final rule, revising Allegheny County's Article XXI, VOC Control, General and Specific Surface Coating Applications, 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 supplementary information is organized in the following order:

The EPA is providing notice of an update to its delegable authority for implementation and enforcement of the Federal standards shown in the tables below to the states of Iowa and Kansas. This rule updates the delegation tables previously published at 68 FR 69029 (December 11, 2003). The EPA has established procedures by which these agencies are automatically delegated the authority to implement the standards when they adopt regulations which are identical to the Federal standards. We then periodically provide notice of the new and revised standards for which delegation has been given.

1. Section 111(c)(1) of the Clean Air Act (CAA) authorizes EPA to delegate authority to any state agency which submits adequate regulatory procedures for implementation and enforcement of the NSPS program. The NSPS are codified at 40 CFR part 60.

2. Section 112(l) of the CAA and 40 CFR part 63, subpart E, authorizes the EPA to delegate authority to any state or local agency which submits adequate regulatory procedures for implementation and enforcement of emission standards for hazardous air pollutants. The hazardous air pollutant standards are codified at 40 CFR parts 61 and 63, respectively.

Delegation confers primary responsibility for implementation and enforcement of the listed standards to the respective state and local air agencies. However, EPA also retains the concurrent authority to enforce the standards.

Tables I, II, and III below list the delegated standards. Each item listed in the Subpart column has two relevant dates listed in each column for each state. The first date in each block is the reference date to the CFR contained in the state rule. In general, the state or local agency has adopted the applicable standard through the date as noted in the table. The second date is the most recent effective date of the state agency rule for which the EPA has granted the delegation. This notice specifically addresses revisions to the columns for Iowa and Kansas.

1. The EPA regulations effective after the first date specified in each block have not been delegated, and authority for implementation of these regulations is retained solely by EPA.

2. In some cases, the standards themselves specify that specific provisions cannot be delegated. You should review the applicable standard for this information.

3. In some cases, the agency rules do not adopt the Federal standard in its entirety. Each agency rule (available from the respective agency) should be consulted for specific information.

4. In some cases, existing delegation agreements between the EPA and the agencies limit the scope of the delegated standards. Copies of delegation agreements are available from the state agencies, or from this office.

5. With respect to 40 CFR part 63, subpart A, General Provisions (see Table III), the EPA has determined that sections 63.6(g), 63.6(h)(9), 63.7(e)(2)(ii) and (f), 63.8(f), and 63.10(f) cannot be delegated. Additional information is contained in an EPA memorandum titled “Delegation of 40 CFR Part 63 General Provisions Authorities to State and Local Air Pollution Control Agencies” from John Seitz, Director, Office of Air Quality Planning and Standards, dated July 10, 1998.

1. Dietary exposure from food and feed uses . Tolerances have been established (40 CFR 180.555) for the combined residues of trifloxystrobin, in or on a variety of raw agricultural commodities (RACs). Specifically, tolerances for almonds, barley, carrots, celery, citrus, field corn, fruiting vegetables, hops, pecans, potatoes, rice, stone fruits, sugar beets, and wheat. Risk assessments were conducted by EPA to assess dietary exposures from trifloxystrobin in food as follows:

i. Acute exposure . Acute dietary (food only) exposure assessments are performed for a food-use pesticide if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1 day or single exposure. The Dietary Exposure Evaluation Model software with the Food Commodity Intake Database (DEEM-FCID TM ), Version 1.3, which incorporates the individual food consumption data as reported by respondents in the United States Department of Agriculture (USDA) 1994-1996 and 1998 nationwide Continuing Surveys of Food Intake by Individuals (CSFII) and accumulated exposure to the chemical for each commodity. The acute dietary (food only) exposure analysis for trifloxystrobin is unrefined, assuming 100% crop treated and tolerance level residues. No additional data were used to refine the analysis. The acute dietary endpoint is applicable to the population subgroup females, 13-49 years only. An acute dietary endpoint for the general U.S. population, including infants and children, was not identified. The estimated dietary (food only) exposure for females, 13-49 years old occupies less than 1% of the aPAD and does not exceed EPA's level of concern.

ii. Chronic exposure . In conducting this chronic dietary (food only) exposure assessment, EPA used the DEEM-FCID TM software, incorporating the individual food consumption data as reported by respondents in the USDA 1994-1996 and 1998 CSFII and accumulated exposure to the chemical for each commodity. The chronic dietary (food only) exposure analysis for trifloxystrobin is unrefined, assuming 100% crop treated and tolerance level residues. The chronic dietary endpoint applies to all population subgroups, including infants and children. Risk estimates for all population subgroups are below EPA's level of concern (100% of the cPAD).

iii. Cancer . EPA's previous reviews of data (May 1999) related to trifloxystrobin have determined that trifloxystrobin should be classified as a “Not Likely Human Carcinogen.” Accordingly, no additional cancer risk assessment was performed for trifloxystrobin.

iv. Anticipated residue and percent crop treated (PCT) information . Established and recommended tolerances were used in the acute and chronic dietary (food only) exposure assessments for trifloxystrobin. The metabolite L7a (taurine conjugate of trifloxystrobin) was also included in the exposure assessment for liver, based on the amount found in the ruminant metabolism study. EPA did not apply PCT data for this assessment. DEEM-FCID TM default concentration factors were used except for tomato juice, puree, paste, and catsup. Processing data show no concentration in these fractions.

2. Dietary exposure from drinking water . The Agency lacks sufficient monitoring exposure data to complete a comprehensive dietary exposure analysis and risk assessment for trifloxystrobin in drinking water. Because the Agency does not have comprehensive monitoring data, drinking water concentration estimates are made by reliance on simulation or modeling taking into account data on the physical characteristics of trifloxystrobin.

The Agency uses the First Index Reservoir Screening Tool (FIRST) or the Pesticide Root Zone/Exposure Analysis modeling system (PRZM/EXAMS) to produce estimates of pesticide concentrations in an index reservoir. The Screening Concentration in Ground Water modeling system (SCI-GROW) is used to predict pesticide concentrations in shallow ground water. For a screening-level assessment for surface water, EPA will generally use FIRST (a tier 2 model) before using PRZM/EXAMS (a tier 2 model). The FIRST model is a subset of the PRZM/EXAMS model that uses a specific high-end runoff scenario for pesticides. While both FIRST and PRZM/EXAMS incorporate an index reservoir environment, the PRZM/EXAMS model includes a percent crop area factor as an adjustment to account for the maximum percent crop coverage within a watershed or drainage basin.

None of these models include consideration of the impact processing (mixing, dilution, or treatment) of raw water for distribution as drinking water would likely have on the removal of pesticides from the source water. The primary use of these models by the Agency at this stage is to provide a coarse screen for sorting out pesticides for which it is highly unlikely that drinking water concentrations would ever exceed human health levels of concern.

Since the models used are considered to be screening tools in the risk assessment process, the Agency does not use estimated environmental concentrations (EECs) from these models to quantify drinking water exposure and risk as a %RfD or %PAD. Instead, drinking water levels of comparison (DWLOCs) are calculated and used as a point of comparison against the model estimates of a pesticide's concentration in water. DWLOCs are theoretical upper limits on a pesticide's concentration in drinking water in light of total aggregate exposure to a pesticide in food, and from residential uses. Since DWLOCs address total aggregate exposure to trifloxystrobin, they are further discussed in Unit IV.D., aggregate risk.

Based on the PRZM/EXAMS and SCI-GROW models, the EECs of trifloxystrobin for acute exposures are estimated to be 48 parts per billion (ppb) for surface water and 3.4 ppb for ground water. The EECs for chronic exposures are estimated to be 140 ppb for surface water and 3.4 ppb for ground water.

3. From non-dietary exposure . The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).

Trifloxystrobin is currently registered for use in turf grass and ornamentals. No new residential uses are proposed in this action. Because FQPA requires consideration of aggregate exposure to all likely non-occupational uses, this assessment uses non-occupational post-application contact with trifloxystrobin following potential use on turf grass as the most common and worst case contributor to such exposures. The current registered use of trifloxystrobin on turf grass and ornamentals may only be applied by a Certified Pest Control Operator (PCO); therefore, an assessment of dermal or inhalation exposure for residential handlers is not required and was not performed.

EPA calculated MOEs for exposure scenarios involving potential residential exposure resulting from the currently registered uses of the chemical. The lowest MOE was 800 for children resulting from direct dermal contact with treated lawns (this represents the exposure scenario with the highest exposure; conversely, the adult dermal MOE was 1,300). The highest MOE for children was 220,000 from ingestion of soil from treated lawns. All calculated non-occupational post-application MOEs are greater than 100 on the day of application and; therefore, did not exceed EPA's level of concern.

4. Cumulative effects from substances with a common mechanism of toxicity . Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to trifloxystrobin and any other substances and trifloxystrobin does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action; therefore, EPA has not assumed that trifloxystrobin has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see the policy statements released by EPA's OPP concerning common mechanism determinations and procedures for cumulating effects from substances found to have a common mechanism on EPA's website at http://www.epa.gov/pesticides/cumulative/ .

1. In general . Section 408 of FFDCA provides that EPA shall apply an additional ten-fold margin of safety for infants and children in the case of threshold effects to account for prenatal and post-natal toxicity and the completeness of the data base on toxicity and exposure, unless EPA determines that a different margin of safety will be safe for infants and children. Margins of safety are incorporated into EPA risk assessments either directly through use of an MOE analysis or through using UFs in calculating a dose level that poses no appreciable risk to humans.

2. Discussion . There is no indication of an increased susceptibility of rat or rabbit fetuses/pups to pre- and/or post-natal exposure to trifloxystrobin. In the developmental and reproduction toxicity studies, effects in the fetuses/pups were observed only at or above treatment levels, which resulted in evidence of parental toxicity. As a result, the Agency determined that a developmental neurotoxicity (DNT) study in rats is not required.

The acute and chronic dietary (food only) exposure assessments utilize existing and proposed tolerance level residues and 100% crop treated information for all commodities. By using these screening-level assessments, actual exposures/risks will not be underestimated. Additionally, the exposure assessments will not underestimate the potential dietary (food and drinking water) or non-dietary exposures for infants and children from the use of trifloxystrobin.

The dietary drinking water assessment utilizes water concentration values generated by model and associated modeling parameters, which are designed to provide conservative, health protective, high-end estimates of water concentrations, which are not likely to be exceeded. The residential post-application assessment is based upon the residential standard operating procedures (SOPs) and is based upon surrogate study data. These data are reliable and are not expected to underestimate risk to adults or children. The residential SOPs are based upon reasonable “worst-case” assumptions and are not expected to underestimate risk.

3. Conclusion . EPA has evaluated the potential for increased susceptibility of infants and children from exposure to trifloxystrobin. There is a complete toxicity data base for trifloxystrobin and exposure data are complete or are estimated based on data that reasonably accounts for potential exposures. The Agency has concluded that there are no residual uncertainties for pre- and/or post-natal toxicity. Further, based on existing hazard data and the quality of exposure data for trifloxystrobin, EPA has determined that traditional 10x safety factors are adequately protective for all populations, and the special FQPA SF need not be applied (e.g., it has been reduced from 10x to 1x).

1. General discussion . To estimate total aggregate exposure to a pesticide from food, drinking water, and residential uses, the Agency calculates DWLOCs which are used as a point of comparison against the model estimates of a pesticide's concentration in water (EECs). DWLOC values are not regulatory standards for drinking water. DWLOCs are theoretical upper limits on a pesticide's concentration in drinking water in light of total aggregate exposure to a pesticide in food and residential uses. In calculating a DWLOC, the Agency determines how much of the acceptable exposure (i.e., the PAD) is available for exposure through drinking water [e.g., allowable chronic water exposure (mg/kg/day) = cPAD - (average food + chronic non-dietary, non-occupational exposure)]. This allowable exposure through drinking water is used to calculate a DWLOC.

A DWLOC will vary depending on the toxic endpoint, drinking water consumption, and body weights. Default body weights and consumption values as used by the EPA's Office of Water are used to calculate DWLOCs: 2 liter (L)/70 kg (adult male), 2L/60 kg (adult female), and 1L/10 kg (child). Default body weights and drinking water consumption values vary on an individual basis. This variation will be taken into account in more refined screening-level and quantitative drinking water exposure assessments. Different populations will have different DWLOCs. Generally, a DWLOC is calculated for each type of risk assessment used: Acute, short-term, intermediate-term, chronic, and cancer.

When EECs for surface water and ground water are less than the calculated DWLOCs, EPA concludes with reasonable certainty that exposures to trifloxystrobin in drinking water (when considered along with other sources of exposure for which EPA has reliable data) would not result in unacceptable levels of aggregate human health risk at this time. Because EPA considers the aggregate risk resulting from multiple exposure pathways associated with a pesticide's uses, levels of comparison in drinking water may vary as those uses change. If new uses are added in the future, EPA will reassess the potential impacts of trifloxystrobin on drinking water as a part of the aggregate risk assessment process.

2. Summary of aggregate risk analysis . Acute and chronic aggregate risk estimates were calculated in this risk assessment. Acute aggregate risk was calculated by comparing acute DWLOCs to potential drinking water exposure to trifloxystrobin. Similarly, chronic aggregate risk was calculated by comparing chronic DWLOCs to potential drinking water exposure. The surface and ground water EECs were used to compare against back-calculated DWLOCs for aggregate risk assessments.

Short-term risk is based on exposures occurring over 1 to 30 days. Short-term aggregate risk was calculated by combining risk estimates for high-end residential oral and/or dermal exposures with chronic food and drinking water risks. Intermediate-term exposure (1 to 6 months) to the parent trifloxystrobin is not expected to occur in residential settings due to its short half-life (about 2 days based on soil and aquatic metabolism studies). Therefore, an intermediate-term aggregate risk assessment was not performed. Chronic non-dietary aggregate risk was not calculated as chronic dermal and oral exposures (from residential treatment) are not expected. Cancer aggregate risk was not calculated because trifloxystrobin has been classified as a “not likely human carcinogen.”

Acute, short-term and chronic aggregate risk estimates resulting from aggregate exposure to trifloxystrobin in food and drinking water were assessed, and are below EPA's level of concern.

3. Acute risk . The acute aggregate risk assessment takes into account exposure estimates from dietary consumption of trifloxystrobin from food and drinking water sources. Acute aggregate risk was not calculated for the general U.S. population (including infants and children or other population subgroups) as hazard endpoints have not been identified for those groups.

The acute risk estimate for females, 13-49 years, resulting from aggregate exposure to trifloxystrobin in food and drinking water, is below EPA's level of concern. DWLOCs were calculated for females 13-49 years, the only subgroup to which the acute dietary endpoint applies. Surface and ground water EECs were used to compare against back-calculated DWLOCs for aggregate risk assessments. To calculate the DWLOC for acute exposure relative to an acute toxicity endpoint, the acute dietary food exposure (from DEEM-FCID TM ) was subtracted from the aPAD to obtain the acceptable acute exposure to trifloxystrobin in drinking water.

The DWLOC was 75,000 ppb for females, 13-49 years, a value that is well above the EECs for drinking water. Therefore, acute aggregate risk is below EPA's level of concern. EPA does not expect the aggregate exposure to exceed 100% of the aPAD, as shown in Table 2 of this unit:

I. Background

In FR Doc. 05-8875 of May 4, 2005 (70 FR 23690), there were several technical errors that are identified and corrected in the Correction of Errors section below. The provisions in this correction notice are effective as if they had been included in the document published May 4, 2005. Accordingly, the corrections are effective July 1, 2005.

In FR Doc. 05-8875 of May 4, 2005 (70 FR 23690), make the following corrections:

On page 23690, in the first column, in the “Effective Date” section, the effective date of July 5, 2005 is an error. Remove “July 5, 2005” and add in its place “July 1, 2005.”

On page 23710, in section IV, Waiver of Proposed Rulemaking, in column 2, in lines 1 and 8, remove “July 5, 2005” and add in its place “July 1, 2005.”

On page 23752, there are three CPT codes erroneously included in the list of ASC covered procedures. These CPT codes are not on the ASC list because they were discontinued for 2005. Therefore on page 23752, remove CPT codes 50559, Renal endoscopy/radiotracer, 50959, Ureter endoscopy and tracer, and 50978, Ureter endoscopy and tracer.

The final error is one of omission. One public comment and the response were not included in the May 4, 2005 interim final rule. That comment and response are as follows:

Comment: We received one comment requesting that we add CPT code 55873, Cryosurgical ablation of the prostate, to the ASC list. The commenter also asked that we assign the procedure to a newly created payment group with a higher rate than current payment group 9. The commenter believes that the procedure meets the criteria for inclusion on the ASC list and that adding it to the list will permit reasonable site-of-service flexibility for physicians.

Response: We agree with the commenter that the procedure meets the criteria for inclusion on the ASC list. Utilization data show that the service is performed most of the time in the hospital outpatient setting and our medical staff agreed that it is appropriate for the ASC setting. We cannot however, create a new, higher payment level for this procedure because we do not have data upon which to base new payment rates and because the Congress has relieved us of performing a new survey and has, instead, mandated development of a new payment system. Therefore, we assigned the procedure to Group 9, the highest paying of the existing payment groups under which payments for ASC facility services are currently made.

We ordinarily publish a notice of proposed rulemaking in the Federal Register to provide a period for public comment before the provisions of a notice take effect. We can waive this procedure, however, if we find good cause that notice and comment procedure is impracticable, unnecessary, or contrary to the public interest and incorporate a statement of the finding and the reasons for it into the notice issued.

We find it unnecessary to undertake notice and comment rulemaking because this notice merely provides technical corrections to the regulations. Therefore, we find good cause to waive notice and comment procedures.

International Pacific Halibut Commission (IPHC) annual management measures for the Pacific halibut fisheries were published on February 25, 2005 (70 FR 9242). The Area 2A Catch Sharing Plan for Pacific halibut off

Washington, Oregon, and California was implemented subsequently at 70 FR 20304, April 19, 2005. Those regulations established a YRCA within the Oregon central coast sport fishery subarea (Cape Falcon, OR to Humbug Mountain, OR), among other management measures. The YRCA is intended to protect yelloweye rockfish from incidental catch in the sport halibut fishery, which uses bottom-tending gear that tends to catch both halibut and rockfish. This closed area is located on Stonewall Bank, an ocean area of high sealife abundance located offshore and southwest of Newport, Oregon.

Sport fishing for halibut off the central Oregon coast is managed in two area-specific fisheries. The fishery shoreward of a boundary line approximating the 40-fm (73.2-m) depth contour is open from May 1 through October 31 and participants tend to take halibut incidentally to fisheries targeting other nearshore species. Seaward of the boundary line approximating the 40-fm (73.2-m) depth contour, the halibut fishery is more intense, and is open for alternating weekends in the spring and summer, depending on quota availability. See the final rule implementing the 2005 West Coast Pacific halibut regulations for season details (70 FR 20304, April 19, 2005). The YRCA is in waters offshore of the boundary line approximating the 40-fm (73.2-m) depth contour, thus it applies only to vessels participating in the all-depth halibut fishery on days when that fishery is open.

Recreational fishing for salmon occurs in similar waters to the recreational halibut fishery, although the recreational salmon season is usually open for more days than the halibut season. Also similar to the halibut fishery, recreational salmon fishermen use hook-and-line gear. Unlike halibut hook-and-line gear, salmon gear is not tended so that hooks stay on or near the bottom, mainly because most salmon do not range as close to the ocean bottom as halibut. In addition to fishing with hooks dropped from one or more fishing poles, salmon anglers may also troll for salmon. Troll fishing gear is defined in the 2005 annual West Coast salmon regulations as “One or more lines that drag hooks behind a moving fishing vessel. In that portion of the fishery management area off Oregon and Washington, the line or lines must be affixed to the vessel and must not be intentionally disengaged from the vessel at any time during the fishing operation.” (70 FR 23054, May 4, 2005)

Recreational salmon gear does not tend to have the same interactions with yelloweye rockfish as halibut bottom-tending hook-and-line gear. Therefore, recreational salmon fishing is permitted within the YRCA during the salmon season off the central Oregon coast. Stonewall Bank, where the YRCA is located, is a popular salmon fishing location because it is relatively easy to access from the port of Newport, OR, and because salmon and other species congregate there to feed. While allowing recreational salmon fishing within the YRCA is not problematic from a yelloweye rockfish conservation perspective, it can be problematic from an enforcement perspective. Hook-and-line recreational salmon fishing pole gear essentially looks the same as recreational halibut fishing pole gear from the ocean surface. Thus, it would be extremely difficult for an enforcement officer to accurately determine whether an angler were using that gear to fish for salmon or halibut. To facilitate enforcement of the prohibition against recreational halibut fishing within the YRCA, recreational fishing for salmon with any gear other than troll gear is prohibited within the YRCA on days when the all-depth recreational halibut fishery is open (70 FR 23054, May 4, 2005), at 23060, Section 2, paragraph A, Cape Falcon, OR to Humbug Mountain, OR).

Federal halibut regulations at Section 24(12) at 70 FR 9249, February 25, 2005, state that for vessels sport fishing for halibut, “No person shall be in possession of halibut on a vessel while fishing in a closed area.” This regulation has been in place since the early 1990s and is intended to aid in the Catch Sharing Plan's intent that the halibut sport fishery be managed with seven separate sub-areas with different open and closed periods. Each of the seven sub-areas, from Puget Sound, WA to northern California, has its own quota and different open dates. This closed area halibut retention prohibition, however, inadvertently conflicts with the intent of Federal salmon regulations by unnecessarily restricting anglers who fish for halibut outside of the YRCA and who wish to also troll for salmon within the YRCA.

NMFS believes that it is necessary to clarify Federal halibut regulations to ensure that recreational salmon trollers are again able to retain halibut they have caught legally outside of the YRCA while they are legally fishing for salmon within the YRCA. Section 25 of the 2005 Pacific halibut regulations provides NMFS with the authority to make certain inseason management changes, provided that the action is necessary to allow allocation objectives to be met, and that the action will not result in exceeding the catch limit for the area. This action would allow halibut allocation objectives to be met by ensuring that anglers who wish to fish for halibut and salmon on the same day have access to both of those species. This action would encourage anglers to fish offshore of the YRCA for halibut, while still allowing them to access the recreational salmon quota at Stonewall Bank. This action will not result in exceeding the central Oregon coast catch limit. The central Oregon coast sport fishery for halibut is managed as a quota fishery, meaning that the fishery will close when the quota has been achieved, regardless of where anglers are permitted to fish within the sub-area.

In consultation with the Oregon Department of Fish and Wildlife and the IPHC, NMFS has decided to revise Federal regulations to clarify that recreational vessels trolling for salmon within the YRCA may retain halibut on board. This action is not expected to result in bycatch of overfished groundfish species above the amounts previously projected to be taken in Oregon sport fisheries in 2005, particularly the 6.7 mt estimated for yelloweye rockfish taken in the Washington and Oregon sport fisheries, combined.

For the reasons stated above, NMFS announces the following change to the 2005 annual management measures (70 FR 20304, April 19, 2005) to read as follows:

1. On page 20308, in section 24. Sport Fishing for Halibut, the introductory text to paragraph (4)(b)(v)(E) in the middle column is revised to read as follows: