The Executive Branch Financial Disclosure Regulation, 5 CFR part 2634, prescribes rules governing the public and confidential financial disclosure systems established under the Ethics in Government Act. With the approval of the Office of Government Ethics, an agency may supplement those regulations pursuant to 5 CFR 2634.103. In an interim final rule published at 70 FR 5543 on February 3, 2005, HHS added a new part 5502 to title 5. Among other provisions, NIH employees on duty as of the effective date of the interim final rule were required by § 5502.106(c)(3) to report in writing within 60 days after the effective date any financial interest prohibited by 5 CFR 5501.110 that was held on the effective date.

The specified report was due initially on April 4, 2005. The Designated Agency Ethics Official extended the deadline to July 5, 2005, the maximum 90 day period provided under § 5502.105. In response to comments submitted following the publication of the interim final rule, the Department is considering issuing revisions to the HHS supplemental ethics regulations, including part 5502. To allow time for any revisions to be fairly considered, the current reporting date must be deferred. Accordingly, § 5502.106(c)(3) is amended to specify a new due date, October 3, 2005.

For those new entrant or reassigned employees who enter on duty at the NIH after February 3, 2005, and before September 4, 2005, or for incumbent employees who acquire a prohibited financial interest during this period, the due date for the report is also changed to October 3, 2005.

Pursuant to 5 CFR 5501.110(g), the due date for the report determines the divestiture period specified in 5 CFR 2635.403(d), as applied to financial interests prohibited under 5 CFR 5501.110(c) and (d). As a consequence, the new deadline for any required divestitures will be January 2, 2006.

Section 5502.105 is amended to allow the Designated Agency Ethics Official, for good cause, to extend reporting deadlines for reports required under part 5502 during the initial implementation phase for any reporting requirement, without regard to the 90 day maximum specified in the interim final rule.

Because this interim final rule involves only a procedural matter and extends a financial disclosure reporting deadline applicable to agency personnel, it is exempt under 5 U.S.C. 553(a)(2) and 553(b) from the requirement for notice and comment rulemaking. The deferral of the reporting requirement relieves restrictions under current law and thus is effective upon publication pursuant to 5 U.S.C. 553(d)(1).

This interim final rule will not have a significant economic impact on a substantial number of small entities because the rule amends a personnel provision affecting only HHS employees.

This interim final rule does not prescribe information collection requirements that are subject to approval by the Office of Management and Budget.

As a provision related to agency personnel, this rulemaking is not a rule as defined in 5 U.S.C. 804, and does not require review by Congress.

Because this rule relates to HHS personnel, it is exempt from the provisions of Executive Orders 12866 and 12988.

In 1996, the White House Office of Science and Technology Policy (OSTP) began the process of formulating a uniform government-wide Federal policy on research misconduct. OSTP published a proposed policy on research misconduct in the Federal Register at 64 FR 55722, October 14, 1999, and published the final policy at 65 FR 76260, December 6, 2000 (Federal Policy). The Federal Policy is available on the Office of Science Web site at http://www.sc.doe.gov/misconduct/finalpolicy.pdf.

The objective of the Federal Policy is to create a uniform policy framework for Federal agencies for the handling of allegations of misconduct in federally funded or supported research. Within this framework, each Federal agency funding or supporting research is expected to fashion its own regulations to accommodate the various types of research transactions in which it is engaged. This rule implements the Federal Policy for DOE including the National Nuclear Security Administration. In keeping with these objectives, these DOE regulations incorporate key aspects of the Federal Policy. In particular, research misconduct is being defined as including fabrication, falsification, or plagiarism in proposing, performing, or reviewing research, or in reporting research results, but not as including honest error or differences of opinion. In addition, a finding of research misconduct requires a determination, based on a preponderance of the evidence, that research misconduct has occurred, including a conclusion that there has been a significant departure from accepted practices of the relevant research community and that it be knowingly, intentionally, or recklessly committed.

The core principle of the Federal Policy is that, while research organizations have the primary responsibility for the inquiry, investigation, and adjudication of allegations of research misconduct, Federal agencies have ultimate oversight authority for the research they fund or support. While there may be some overlap in the actions that may be pursued by Federal agencies and research organizations, DOE has designed this rule to assure that if an allegation of research misconduct is made against a contractor or recipient of financial assistance, either the contractor or recipient or, if appropriate, DOE, investigates that allegation. Federal law prescribes procedural frameworks for adverse contract actions, adverse assistance actions, suspensions, or debarments that are different from procedural frameworks for competing for Federal procurement or assistance awards, and for adverse personnel actions against Federal civil service employees. Further, the DOE Office of the Inspector General (OIG) may proceed under its previously existing administrative investigation process when misconduct is alleged against Federal civil service employees, contractors or recipients of financial assistance. In addition, if a contractor or financial assistance recipient cannot conduct its own research misconduct investigation the rule provides that DOE will be responsible for conducting the investigation.

In order to best implement the Federal Policy, DOE promulgates a new 10 CFR part 733 (Allegations of Research Misconduct), which sets forth a general statement of policy applicable to research conducted under a DOE contract or financial assistance agreement. Consistent with the general statement of policy, DOE today amends 10 CFR part 600 (Financial Assistance Rules), 48 CFR part 935 (Research and Development Contracting), 48 CFR part 952 (Solicitation Provisions and Contract Clauses), and 48 CFR part 970 (DOE Management and Operating Contracts). The Secretary of Energy has approved this notice for publication in the Federal Register . For all contracts, contracting officers must apply the DOE Acquisition Regulations (DEAR) changes (codified at 48 CFR) to solicitations issued on or after the effective date of this rule and may, at their discretion, include these DEAR changes in solicitations issued before the effective date of this rule, provided award of the resulting contract(s) occurs on or after the effective date.

For management and operating contracts, contracting officers must apply these DEAR changes: to contracts extended in accordance with the Department's extend/compete policies and procedures (48 CFR 917.6, 48 CFR 970.1706, and internal guidance); and to options exercised under competitively awarded management and operating contracts (48 CFR 970.1706).

For management and operating contracts, contracting officers should modify existing contracts at the next fee negotiation/annual renewal after the effective date of this rule.

Since research for DOE occurs pursuant to financial assistance agreements or contracts, the general statement of policy provides that DOE will implement the Federal Policy through the insertion in financial assistance agreements and contracts of standard requirements based on the Federal Policy. DOE expects that these standard requirements will result in most allegations of research misconduct being handled in accordance with the Federal Policy by the research institution where the research misconduct is alleged to have taken place.

The general statement of policy also sets forth guidance to DOE offices with regard to the processing of allegations of research misconduct made directly to DOE. The guidance provides for initial handling of such allegations by the DOE office programmatically responsible for an assistance agreement or contract. That office in turn will consult with the DOE Office of the Inspector General (IG) to determine whether that office will choose to investigate the allegation. If the IG declines to investigate, the DOE program office will refer the allegation to the appropriate contracting officer responsible for the administration of the assistance agreement or contract for processing by the assistance recipient or contractor consistent with requirements of the applicable research misconduct requirements. If the Department elects to act in lieu of the contractor or financial assistance recipient, the research misconduct investigation shall be conducted by the DOE office programmatically responsible for the assistance agreement or contract with support from other departmental elements, as appropriate.

DOE is amending the DEAR at 48 CFR part 935 to prescribe the inclusion of requirements on research misconduct in all DOE contracts that involve research. DOE also is amending part 952 of the DEAR and 10 CFR part 600, respectively, to add requirements that by accepting the funds under a contract, including a management and operating contractor a financial assistance award, the recipient of DOE funds is making assurances that it has established an administrative process for reviewing, investigating, and reporting allegations of research misconduct and that it will comply with its own administrative process and the requirements of 10 CFR part 733 for review, investigation, and reporting of research misconduct. DOE also is amending part 970 of the DEAR to provide that records generated by a management and operating contractor during the course of responding to allegations of research misconduct will be considered owned by the contractor.

As suggested in the Federal Policy, DOE expects debarment and suspension would be available as possible recommended remedies for a finding of research misconduct. These remedies would exclude a person or organization from participating in research activities funded by the Federal Government. DOE's non-procurement suspension and debarment rule is promulgated at 10 CFR part 606, while the Federal procurement suspension and debarment rule is promulgated at 48 CFR part 909. Both regulations require a fact-finding process if there are any facts in dispute prior to a suspension or debarment determination. The fact-finding process used to make a determination of research misconduct under this rule would satisfy the requirements for a fact-finding hearing as adopted in the DOE's non-procurement debarment and suspension regulations, as well as the requirements for a fact-finding hearing as described in the FAR.

Interested persons are invited to participate by submitting data, views or arguments with respect to the new regulation in this rulemaking. Five copies of written comments should be submitted to the address indicated in the ADDRESSES section of this notice of rulemaking. All comments received will be available for public inspection as part of the administrative record on file for this rulemaking in the Department of Energy Freedom of Information Reading Room, Room 1E-090, Forrestal Building, 1000 Independence Avenue, SW., Washington, DC 20585, (202) 586- 3142, between the hours of 9 a.m. and 4 p.m., Monday through Friday, except Federal holidays. All written comments received by the date indicated in the DATES section of this notice of rulemaking and all other relevant information in the record will be carefully assessed and fully considered prior to the publication of the final rule. Any information or data considered to be exempt from public disclosure by law must be so identified and submitted in writing, one copy, as well as one complete copy from which the information believed to be exempt from disclosure is deleted. DOE will determine if the information or data is exempt from disclosure.

This regulatory action has been determined to be a “significant regulatory action” under Executive Order 12866, “Regulatory Planning and Review,” (58 FR 51735, October 4, 1993). Accordingly, this action was subject to review under that Executive Order by the Office of Information and Regulatory Affairs of the Office of Management and Budget (OMB). OMB has completed its review.

With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (February 7, 1996), imposes on Executive agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; (3) provide a clear legal standard for affected conduct rather than a general standard; and (4) promote simplification and burden reduction. The review required by section 3(a), section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. The Department has completed the required review and determined that, to the extent permitted by law, the regulations meet the relevant standards of Executive Order 12988.

The Regulatory Flexibility Act, 5 U.S.C. 601 et seq. , requires that a Federal agency prepare a regulatory flexibility analysis for any rule for which the agency is required to publish a general notice of rulemaking. Today's rule consists of a general statement of policy, amendments to financial assistance regulations, and amendments to procurement regulations. Each part of today's rule is exempt from the requirement to publish a general notice of proposed rulemaking under the Administrative Procedure Act (5 U.S.C. 553) or any other law. Therefore, the Regulatory Flexibility Act does not apply to this rulemaking.

No new information collection requirements subject to the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. , are imposed by today's regulatory action.

The Department has concluded that promulgation of this rule falls into a class of actions which would not individually or cumulatively have significant impact on the human environment, as determined by Department of Energy regulations (10 CFR part 1021, subpart D) implementing the National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq. ). Specifically, this rule is categorically excluded from NEPA review because the rule and amendments to the Department of Energy Acquisition Regulation (DEAR) would be strictly procedural (categorical exclusion A6). Therefore, this rule does not require an environmental impact statement or environmental assessment pursuant to NEPA.

Executive Order 13132 (64 FR 43255, August 10, 1999) requires agencies to develop an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have “Federalism implications.” As defined in the Executive Order, policies that have Federalism implications include regulations that have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. The Department has examined this rule and has determined that it would 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. No further action is required by Executive Order 13132.

The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally requires a Federal agency to perform a detailed assessment of costs and benefits of any rule imposing a Federal Mandate with costs to State, local or tribal governments, or to the private sector, of $100 million or more. This rulemaking affects private sector entities, and the impact is less than $100 million.

Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any proposed rule or policy that may affect family well-being. Today's rule does not impact on the autonomy or integrity of the family institution. Accordingly, the Department has concluded that it is not necessary to prepare a Family Policymaking Statement.

The Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516, note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to the general guideline issued by OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002) and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed today's rulemaking under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.

As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of today's interim final rule prior to its effective date. The report will state that the rule is not a major rule under 5 U.S.C. 804(2).

The FAA has determined that notice and opportunity for prior public comment hereon are impracticable because these procedures would significantly delay issuance of the approval design and thus delivery of the affected aircraft. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance.

Interested persons are invited to submit such written data, views, or arguments, as they may desire. Communications should identify the regulatory docket or special condition number and be submitted in duplicate to the address specified above. All communications received on or before the closing date for comments will be considered by the Administrator. The special conditions may be changed in light of the comments received. All comments received will be available in the Rules Docket for examination by interested persons, both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerning this rulemaking will be filed in the docket. Persons wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must include with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to CE227.” The postcard will be date stamped and returned to the commenter.

Under the Bilateral Airworthiness Agreement (BAA) between the USA and the Austrian Exporting Civil Aviation Authority (ECAA), the Austro Control GmbH (ACG), the DAI applied for U.S. Type Certification of Diamond Aircraft Industries (DAI) Model DA-42 on August 2, 2004, through the European Aviation Safety Agency (EASA). The DAI DA-42 aircraft is a new fully composite, four place, twin-engine airplane with retractable gear, cantilever low wing and T-tail. EASA certified the airplane on type certificate number A005, dated May 13, 2004. The airplane is powered by two Thielert Aircraft Engines GmbH (Thielert) TAE 125-01 aircraft diesel engines (ADE), type certificated in the United States, type certificate number E00069EN.

Expecting the reintroduction of diesel engine technology into the small airplane fleet, the FAA issued Policy Statement PS-ACE100-2002-004 on May 15, 2004, which identified areas of technological concern involving introduction of new technology diesel engines into small airplanes. For a more detailed summary of the FAA's development of diesel engine requirements, refer to this policy.

The general areas of concern involved the power characteristics of the diesel engines, the use of turbine fuel in an airplane class that has typically been powered by gasoline fueled engines, the vibration characteristics and failure modes of diesel engines. These concerns were identified after a review of the record of diesel engine use in aircraft and a review of the 14 CFR part 23 regulations, which identified specific regulatory areas that needed to be evaluated for applicability to diesel engine installations. These concerns are not considered universally applicable to all types of possible diesel engines and diesel engine installations. However, after review of the DAI installation, the Thielert engine type, and the requirements applied by the ACG, and after applying the provisions of the diesel policy, the FAA proposes these fuel system and engine related special conditions. Other special conditions issued in a separate notice include special conditions for HIRF and application of § 23.1309 provisions to the Full Authority Digital Engine Control (FADEC).

Several major concerns were identified in developing FAA policy. These include installing the diesel engine and noting its vibration levels under both normal operating conditions and when one cylinder is inoperative. The concerns also include accommodating turbine fuels in airplane systems that have generally evolved based on gasoline requirements, anticipated use of a FADEC to control the engine, and appropriate limitations and indications for a diesel engine powered airplane. The general concerns associated with the aircraft diesel engine installation are as follows: Installation and Vibration Requirements, Fuel and Fuel System Related Requirements, FADEC and Electrical System Requirements, Limitations and Indications.

Installation and Vibration Requirements: These special conditions include requirements similar to the requirements of § 23.901(d)(1) for turbine engines. In addition to the requirements of § 23.901 applied to reciprocating engines, the applicant will be required to construct and arrange each diesel engine installation to result in vibration characteristics that do not exceed those established during the type certification of the engine. These vibration levels must not exceed vibration characteristics that a previously certificated airframe structure has been approved for, unless such vibration characteristics are shown to have no effect on safety or continued airworthiness. The engine limit torque design requirements as specified in § 23.361 are also modified.

An additional requirement to consider vibration levels and/or effects of an inoperative cylinder was imposed. Also, a requirement to evaluate the engine design for the possibility of, or effect of, liberating high-energy engine fragments, in the event of a catastrophic engine failure, requirements was added.

Fuel and Fuel System Related Requirements: Due to the use of turbine fuel, this airplane must comply with the requirements in § 23.951(c).

Section 23.961 will be complied with using the turbine fuel requirements. These requirements will substantiated by flight-testing as described in Advisory Circular AC 23-8B, Flight Test Guide for Certification of Part 23 Airplanes.

This special condition specifically requires testing to show compliance to § 23.961 and adds the possibility of testing non-aviation diesel fuels.

To ensure fuel system compatibility and reduce the possibility of misfueling, and discounting the first clause of § 23.973(f) referring to turbine engines, the applicant will comply with § 23.973(f).

Due to the use of turbine fuel, the applicant will comply with § 23.977(a)(2), and § 23.977(a)(1) will not apply. “Turbine engines” will be interpreted to mean “aircraft diesel engine” for this requirement. An additional requirement to consider the possibility of fuel freezing was imposed.

Due to the use of turbine fuel, the applicant will comply with § 23.1305(c)(8).

Due to the use of turbine fuel, the applicant must comply with § 23.1557(c)(1)(ii). Section 23.1557(c)(1)(ii) will not apply. “Turbine engine” is interpreted to mean “aircraft diesel engine” for this requirement.

FADEC and Electrical System Requirements: The electrical system must comply with the following:

• In case of failure of one power supply of the electrical system, there will be no significant engine power change. The electrical power supply to the FADEC must remain stable in such a failure.

• The transition from the actual engine electrical network (FADEC) to the remaining electrical system with the consumer's, avionics, communication, etc., should be made by a single point only. If several transitions ( e.g. , for redundancy reasons) are needed, then the number of the transitions must be kept as small as possible.

• There must be the ability to separate the FADEC power supply (alternator) from the battery and from the remaining electrical system.

• In case of loss of alternator power, the installation must guarantee that the battery will provide the power for an appropriate time after appropriate warning to the pilot.

• FADEC, alternator, and battery must be interconnected in an appropriate way so, in case of loss of battery power, the supply of the FADEC is guaranteed by the alternator.

Limitations and Indications

Section 23.1305(a) and § 23.1305(b)(2) will apply, except that propeller revolutions per minute (RPM) will be displayed. Sections 23.1305(b)(4), 23.1305(b)(5), and 23.1305(b)(7) are deleted.

Additional critical engine parameters for this installation that will be displayed include:

(1) Power setting, in percentage, and

(2) Fuel temperature.

Due to the use of turbine fuel, the requirements for § 23.1521(d), as applicable to fuel designation for turbine engines, will apply.

Under the provisions of 14 CFR 21.17, Diamond Aircraft Industries must show that the DA-42 meets the applicable provisions of part 23, as amended by Amendments 23-1 through 23-51 thereto. In addition, the certification basis includes special conditions and equivalent levels of safety for the following:

Special Conditions:

• Engine torque (Provisions similar to § 23.361, paragraphs (b)(1) and (c)(3))

• Powerplant—Installation (Provisions similar to § 23.901(d)(1) for turbine engines)

• Powerplant—Fuel System—Fuel system with water saturated fuel (Compliance with § 23.951 requirements)

• Powerplant—Fuel System—Fuel system hot weather operation (Compliance with § 23.961 requirements)

• Powerplant—Fuel system—Fuel tank filler connection (Compliance with § 23.973(f) requirements)

• Powerplant—Fuel system—Fuel tank outlet (Compliance with § 23.977 requirements)

• Powerplant—Powerplant Controls and Accessories—Engine ignition systems (Compliance with § 23.1165 requirements)

• Equipment—General—Powerplant Instruments (Compliance with § 23.1305 requirements)

• Operating Limitations and Information—Powerplant limitations—Fuel grade or designation (Compliance with § 23.1521(d) requirements)

• Markings And Placards—Miscellaneous markings and placards—Fuel, oil, and coolant filler openings (Compliance with § 23.1557(c)(1) requirements)

• Powerplant—Fuel system—Fuel-Freezing

• Powerplant Installation—Vibration levels

• Powerplant Installation—One cylinder inoperative

• Powerplant Installation—High Energy Engine Fragments

Equivalent levels of safety for:

• Cockpit controls—23.777(d)

• Motion and effect of cockpit controls—23.779(b)

• Liquid Cooling—Installation—23.1061

• Ignition switches—23.1145

The type certification basis includes exemptions, if any; equivalent level of safety findings, if any; and the special conditions adopted by this rulemaking action.

If the Administrator finds that the applicable airworthiness regulations ( i.e. , part 23) do not contain adequate or appropriate safety standards for the Diamond Aircraft Industries DA-42 because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the Diamond Aircraft Industries DA-42 must comply with the part 23 noise certification requirements of 14 CFR part 36.

Special conditions, as appropriate, as defined in § 11.19, are issued in accordance with § 11.38, and become part of the type certification basis in accordance with § 21.17.

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

The Diamond Aircraft Industries DA-42 will incorporate the following novel or unusual design feature:

The Diamond Aircraft Industries DA-42 will incorporate an aircraft diesel engine using turbine (jet) fuel.

As discussed above, these special conditions are applicable to the Diamond Aircraft Industries DA-42. Should Diamond Aircraft Industries apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special condition would apply to that model as well under the provisions of § 21.101.

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

The substance of these special conditions has been subjected to the notice and comment period in a prior instance and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. For this reason, and because a delay would significantly affect the certification of the airplane, which is imminent, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunity for comment described above.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Diamond Aircraft Industries DA-42 airplane.

1. Engine torque (Provisions similar to § 23.361, paragraphs (b)(1) and (c)(3)):

a. For diesel engine installations, the engine mounts and supporting structure must be designed to withstand the following:

(1) A limit engine torque load imposed by sudden engine stoppage due to malfunction or structural failure.

(a) The effects of sudden engine stoppage may alternatively be mitigated to an acceptable level by utilization of isolators, dampers clutches, and similar provisions, so unacceptable load levels are not imposed on the previously certificated structure.

b. The limit engine torque to be considered under § 23.361(a) must be obtained by multiplying the mean torque by a factor of four for diesel cycle engines.

(1) If a factor of less than four is used, it must be shown that the limit torque imposed on the engine mount is consistent with the provisions of § 23.361(c). In other words, it must be shown that the use of the factors listed in § 23.361(c)(3) will result in limit torques on the mount that are equivalent to or less than those imposed by a conventional gasoline reciprocating engine.

2. Powerplant—Installation (Provisions similar to § 23.901(d)(1) for turbine engines):

Considering the vibration characteristics of diesel engines, the applicant must comply with the following:

a. Each diesel engine installation must be constructed and arranged to result in vibration characteristics that—

(1) Do not exceed those established during the type certification of the engine; and

(2) Do not exceed vibration characteristics that a previously certificated airframe structure has been approved for —

(i) Unless such vibration characteristics are shown to have no effect on safety or continued airworthiness, or

(ii) Unless mitigated to an acceptable level by utilization of isolators, dampers clutches, and similar provisions, so that unacceptable vibration levels are not imposed on the previously certificated structure.

3. Powerplant—Fuel System—Fuel system with water saturated fuel (Compliance with § 23.951 requirements):

Considering the fuel types used by diesel engines, the applicant must comply with the following:

a. Each fuel system for a diesel engine must be capable of sustained operation throughout its flow and pressure range with fuel initially saturated with water at 80° F and having 0.75cc of free water per gallon added and cooled to the most critical condition for icing likely to be encountered in operation.

b. Methods of compliance that are acceptable for turbine engine fuel systems requirements of § 23.951(c) are also considered acceptable for this requirement.

4. Powerplant—Fuel System—Fuel system hot weather operation (Compliance with § 23.961 requirements):

In place of compliance with § 23.961, the applicant must comply with the following:

a. Each fuel system must be free from vapor lock when using fuel at its critical temperature, with respect to vapor formation, when operating the airplane in all critical operating and environmental conditions for which approval is requested. For turbine fuel, or for aircraft equipped with diesel cycle engines that use turbine or diesel type fuels, the initial temperature must be 110 °F, −0°, +5° or the maximum outside air temperature for which approval is requested, whichever is more critical.

b. The fuel system must be in an operational configuration that will yield the most adverse, that is, conservative results.

c. To comply with this requirement, the applicant must use the turbine fuel requirements and must substantiate these by flight-testing, as described in Advisory Circular AC 23-8B, Flight Test Guide for Certification of Part 23 Airplanes.

5. Powerplant—Fuel system—Fuel tank filler connection (Compliance with § 23.973(f) requirements):

In place of compliance with § 23.973(e) and (f), the applicant must comply with the following:

For airplanes that operate on turbine or diesel type fuels, the inside diameter of the fuel filler opening must be no smaller than 2.95 inches.

6. Powerplant—Fuel system—Fuel tank outlet (Compliance with § 23.977 requirements):

In place of compliance with § 23.977(a)(1) and (a)(2), the applicant will comply with the following:

There must be a fuel strainer for the fuel tank outlet or for the booster pump. This strainer must, for diesel engine powered airplanes, prevent the passage of any object that could restrict fuel flow or damage any fuel system component.

7. Powerplant—Powerplant Controls and Accessories—Engine ignition systems (Compliance with § 23.1165 requirements):

Considering that the FADEC provides the same function as an ignition system for this diesel engine, in place of compliance to § 23.1165, the applicant will comply with the following:

a. The electrical system must comply with the following requirements:

(1) In case of failure of one power supply of the electrical system, there will be no significant engine power change. The electrical power supply to the FADEC must remain stable in such a failure.

(2) The transition from the actual engine electrical network (FADEC network) to the remaining electrical system should be made at a single point only. If several transitions (for example, redundancy reasons) are needed, then the number of the transitions must be kept as small as possible.

(3) There must be the ability to separate the FADEC power supply (alternator) from the battery and from the remaining electrical system.

(4) In case of loss of alternator power, the installation must guarantee the battery will provide the power for an appropriate time after appropriate warning to the pilot. This period must be at least 30 minutes required, 60 minutes desired.

(5) FADEC, alternator, and battery must be interconnected in an appropriate way so, in case of loss of battery power, the supply of the FADEC is guaranteed by the alternator.

8. Equipment—General—Powerplant Instruments (Compliance with § 23.1305 and 91.205 requirements):

a. In place of compliance with § 23.1305, the applicant will comply with the following:

(1) The following are required powerplant instruments:

(a) A fuel quantity indicator for each fuel tank, installed in accordance with § 23.1337(b).

(b) An oil pressure indicator.

(c) An oil temperature indicator.

(d) A tachometer indicating propeller speed.

(e) A coolant temperature indicator.

(f) An indicating means for the fuel strainer or filter required by § 23.997 to indicate the occurrence of contamination of the strainer or filter before it reaches the capacity established in accordance with § 23.997(d).

1. No indicator is required if the engine can operate normally for a specified period with the fuel strainer exposed to the maximum fuel contamination as specified in MIL-5007D and provisions for replacing the fuel filter at this specified period (or a shorter period) are included in the maintenance schedule for the engine installation.

(g) Power setting, in percentage.

(h) Fuel temperature.

(i) Fuel flow (engine fuel consumption).

b. In place of compliance with § 91.205, the following will be complied with: The diesel engine has no manifold pressure gauge as required by § 91.205, in its place, the engine instrumentation as installed is to be approved as equivalent. TCDS is to be modified to show power indication will be accepted to be equivalent to the manifold pressure indication.

9. Operating Limitations and Information—Powerplant limitations—Fuel grade or designation (Compliance with § 23.1521(d) requirements):

Instead of compliance with § 23.1521(d), the applicant must comply with the following:

The minimum fuel designation (for diesel engines) must be established so it is not less than that required for the operation of the engines within the limitations in paragraphs (b) and (c) of § 23.1521.

10. Markings And Placards—Miscellaneous markings and placards—Fuel, oil, and coolant filler openings (Compliance with § 23.1557(c)(1) requirements):

Instead of compliance with § 23.1557(c)(1), the applicant must comply with the following:

a. Fuel filler openings must be marked at or near the filler cover with—

(1) For diesel engine-powered airplanes—

(a) The words “Jet Fuel”; and

(b) The permissible fuel designations, or references to the Airplane Flight Manual (AFM) for permissible fuel designations.

(c) A warning placard or note that states the following or similar:

“Warning—this airplane equipped with an aircraft diesel engine, service with approved fuels only.”

The colors of this warning placard should be black and white.

11. Powerplant—Fuel system—Fuel-Freezing:

If the fuel in the tanks cannot be shown to flow suitably under all possible temperature conditions, then fuel temperature limitations are required. These will be considered as part of the essential operating parameters for the aircraft and must be limitations.

a. The takeoff temperature limitation must be determined by testing or analysis to define the minimum cold-soaked temperature of the fuel that the airplane can operate on.

b. The minimum operating temperature limitation must be determined by testing to define the minimum operating temperature acceptable after takeoff (with minimum takeoff temperature established in (1) above).

12. Powerplant Installation—Vibration levels:

a. Vibration levels throughout the engine operating range must be evaluated and:

(1) Vibration levels imposed on the airframe must be less than or equivalent to those of the gasoline engine; or

(2) Any vibration level that is higher than that imposed on the airframe by the replaced gasoline engine must be considered in the modification and the effects on the technical areas covered by the following paragraphs must be investigated: 14 CFR part 23, 23.251; 23.613; 23.627; 23.629 (or CAR 3.159, as applicable to various models); 23.572; 23.573; 23.574 and 23.901.

b. Vibration levels imposed on the airframe can be mitigated to an acceptable level by use of isolators, dampers clutches, and similar provisions, so unacceptable vibration levels are not imposed on the previously certificated structure.

13. Powerplant Installation—One cylinder inoperative:

It must be shown by test or analysis, or by a combination of methods, that the airframe can withstand the shaking or vibratory forces imposed by the engine if a cylinder becomes inoperative. Diesel engines of conventional design typically have extremely high levels of vibration when a cylinder becomes inoperative. Data must be provided to the airframe installer/modifier so either appropriate design considerations or operating procedures, or both, can be developed to prevent airframe and propeller damage.

14. Powerplant Installation—High Energy Engine Fragments:

It may be possible for diesel engine cylinders (or portions thereof) to fail and physically separate from the engine at high velocity (due to the high internal pressures). This failure mode will be considered possible in engine designs with removable cylinders or other non-integral block designs. The following is required:

a. It must be shown that the engine construction type (massive or integral block with non-removable cylinders) is inherently resistant to liberating high energy fragments in the event of a catastrophic engine failure; or,

b. It must be shown by the design of the engine, that engine cylinders, other engine components or portions thereof (fragments) cannot be shed or blown off the engine in the event of a catastrophic engine failure; or

c. It must be shown that all possible liberated engine parts or components do not have adequate energy to penetrate engine cowlings; or

d. Assuming infinite fragment energy, and analyzing the trajectory of the probable fragments and components, any hazard due to liberated engine parts or components will be minimized and the possibility of crew injury is eliminated. Minimization must be considered during initial design and not presented as an analysis after design completion.

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 Short Brothers Model SD3-60 airplanes was published as a supplemental notice of proposed rulemaking (NPRM) in the Federal Register on April 1, 2005 (70 FR 16764). That action proposed to require performing repetitive inspections of the shear attachment fittings of the vertical stabilizer for corrosion, and performing corrective actions if necessary. The actions specified by this AD are intended to detect and correct corrosion in the area of the main spar web fittings of the vertical stabilizer, which could result in reduced structural integrity of the vertical stabilizer.

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.

The proposed AD had an incorrectly numbered “Note” paragraph. We have corrected the number of that Note in the final rule.

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.

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

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.

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 all BAE Systems (Operations) Limited Model BAe 146 and Avro 146-RJ series airplanes. That action, published in the Federal Register on July 30, 2004 (69 FR 45614), proposed to require repetitive external eddy current inspections of the forward fuselage skin to detect cracking due to fatigue, and repair 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 requests that we revise the proposed AD to refer to BAE Systems (Operations) Limited Inspection Service Bulletin ISB.53-167, including Appendix 2, Revision 1, dated May 18, 2004, as the acceptable source of service information for the actions required by paragraph (f) of the proposed AD. Paragraph (f) of the proposed AD refers to BAE Systems (Operations) Limited Inspection Service Bulletin ISB.53-167, including Appendices 2 and 3, all dated June 27, 2003, as the applicable source of service information for the actions specified in that paragraph.

We concur. We have reviewed BAE Systems (Operations) Limited Inspection Service Bulletin ISB.53-167, including Appendix 2, Revision 1. The instructions in Revision 1 are essentially the same as those in the original issue of the service bulletin, including Appendices 2 and 3. Accordingly, we have revised this AD to refer to BAE Systems (Operations) Limited Inspection Service Bulletin ISB.53-167, including Appendix 2, Revision 1, as the applicable source of service information for the actions required by paragraph (f) of this AD. We have also added a new paragraph (g) (and reidentified subsequent paragraphs accordingly) to give credit for inspections accomplished before the effective date of this AD in accordance with the original issue of the service bulletin, including Appendices 2 and 3.

In the proposed AD, we explained two differences between the proposed AD and the original issue of the service bulletin. These differences continue to apply between this AD and Revision 1 of the service bulletin. For the convenience of operators, these differences are repeated as follows:

• Although the referenced service bulletin describes procedures for submitting Appendix 1 of the service bulletin with inspection results to the manufacturer, this AD does not require that action. We do not need this information from operators.

• The service bulletin specifies that you may perform repairs in accordance with the structural repair manual (SRM), or that you may contact the manufacturer for instructions on how to repair conditions outside the limits defined in the SRM, but this AD requires you to repair those conditions using a method that we or the CAA (or its delegated agent) approve. In light of the type of repair that would be required to address the unsafe condition, and consistent with existing bilateral airworthiness agreements, we have determined that, for this AD, a repair we or the CAA approve would be acceptable for compliance with this AD.

One commenter requests that we extend the repetitive interval for Model Avro 146-RJ series airplanes from 4,000 to 6,000 flight cycles. The commenter notes that a 6,000-flight-cycle repetitive interval would be more compatible with normal maintenance schedules. The commenter provides no justification for the requested change other than for the convenience of its maintenance program.

We do not concur. In developing a repetitive interval for this AD, we considered the manufacturer's recommendation and the action taken by the CAA, as well as the degree of urgency associated with the subject unsafe condition. In light of these factors, we find that a 4,000-flight-cycle repetitive interval represents an appropriate interval of time for Model Avro 146-RJ series airplanes to operate between inspections without compromising safety. We note that this is consistent with the repetitive interval specified in the referenced service bulletin. However, under the provisions of paragraph (i) of this AD, we may approve a request to adjust the compliance time if data are submitted to substantiate that such an adjustment would provide an acceptable level of safety. We have not changed the AD in this regard.

We have revised the statement of unsafe condition in the Summary and paragraph (d) of this AD to better clarify that this AD is intended to detect and correct fatigue cracking along the edges of the chemi-etched pockets in certain front fuselage canopy skin panels, which could result in reduced structural integrity of the airplane fuselage.

We have also revised paragraphs (f)(1)(ii) and (f)(2)(ii) of this AD to clarify that repair must be accomplished before further flight on any area where a crack is found. The proposed AD implied but did not explicitly state that a repair must be accomplished before further flight.

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

This AD affects about 54 airplanes of U.S. registry. The required actions will take about 40 work hours per airplane, at an average labor rate of $65 per work hour. Based on these figures, the estimated cost of this AD for U.S. operators is $140,400, or $2,600 per airplane, per inspection cycle.

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

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

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

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

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

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

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

We prepared a regulatory evaluation of the estimated costs to comply with this AD. See the ADDRESSES section for a location to examine the 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 certain Boeing Model 777-200 and -300 series airplanes was published in the Federal Register on August 15, 2003 (68 FR 48833). That action proposed to require replacing existing ceiling and sidewall light connectors in the passenger cabin with new connectors, and follow-on actions.

Since the issuance of the proposed AD, the FAA has reviewed and approved Boeing Special Attention Service Bulletin 777-33-0019, Revision 1, dated March 11, 2004. (The proposed AD refers to Boeing Special Attention Service Bulletin 777-33-0019, dated July 19, 2001, as the appropriate source of service information for the proposed actions.) Revision 1 limits the effectivity listing to airplanes having line numbers 1 through 264 inclusive. (Connectors on airplanes with line numbers 265 and subsequent were modified and screened prior to delivery of those airplanes to ensure the connectors' resistance to moisture contamination.) We have revised the applicability statement of this AD accordingly.

The work instructions in Revision 1 of the service bulletin are essentially the same as those in the original issue. Accordingly, we have revised paragraph (a) of this AD to refer to Revision 1 of the service bulletin and to give credit for actions accomplished previously per the original issue of the service bulletin. We have also revised paragraph (b) of this AD to remove the reference to the applicable steps in Work Packages 1, 2, and 3 of the service bulletin. Since all steps in Work Packages 1, 2, and 3 of Boeing Special Attention Service Bulletin 777-33-0019, Revision 1, must be done, there is no need to include this information in the AD.

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

One commenter supports the proposed AD.

One commenter, the airplane manufacturer, requests that we withdraw the proposed AD. The commenter notes that it has performed a comprehensive hazard assessment of the subject connectors and has concluded that a connector failure would not adversely affect the airplane's capacity for continued safe flight and landing. The commenter states that the hazard assessment included a review of the materials adjacent to the subject connectors. This review shows that these materials do not propagate a flame and would not significantly affect the magnitude or duration of a potential connector failure. The commenter notes that the type of material adjacent to the connectors was also changed to an improved material at a certain line number during production. The commenter further explains that the reported connector failures were detected during troubleshooting of inoperative lighting or during airplane maintenance and, in all cases, short circuiting was limited by circuit breaker protection. Based on this information, the commenter concludes that the proposed AD is not justified. The commenter also expresses concern that the extensive rework associated with the proposed AD could be detrimental because the rework would increase the probability of latent system failures due to the large number of connectors in the airplane that must be reworked in an environment not conducive to such rework.

After the comment period closed, we coordinated with the commenter on this issue. The commenter agrees that an unsafe condition exists, and that the proposed AD is an appropriate means of addressing it. Thus, we find that no change to the AD is necessary in this regard.

Several commenters request that we extend the proposed compliance time beyond the proposed 18 months. The commenters' proposals for the extended compliance time range from 24 months to 6 years. The commenters justify their requests based on the scope of the necessary work, especially related to the amount of work associated with gaining access to the connectors ( e.g. , removing stowage bins and ceiling panels, which are not normally removed during minor maintenance visits). The commenters state that extending the compliance time would allow them to accomplish the proposed requirements during a scheduled heavy maintenance visit. Two commenters question the urgency of the unsafe condition (a factor that we considered in determining the compliance time, as explained in the proposed AD). These commenters have not experienced any connector failures in their fleets and thus conclude that an extension of the compliance time would not adversely affect safety. Another commenter suggests that we require the replacement of Priority “A+” and “A” connectors (as defined in Revision 01 of the referenced service bulletin) within 18 months, and the replacement of Priority “B” and “C” connectors within 6 years. One commenter also expresses concern about parts availability, in that the number of airplanes affected by the proposed AD and the relatively short compliance time could overburden the ceiling light supplier with a large number of lights sent to them for modification.

We agree that the compliance time for the requirements of this AD may be extended somewhat. We have reconsidered the urgency of the unsafe condition and the amount of work related to the required actions. We find that extending the compliance time from 18 months to 60 months will not adversely affect safety, and, for the majority of affected operators, will allow the required actions to be performed during regularly scheduled maintenance at a base where special equipment and trained maintenance personnel will be available if necessary. A 60-month compliance time will reduce the burden on affected operators, while at the same time addressing one of the manufacturer's concerns, stated previously, that the rework associated with the connector replacement could increase the probability of latent system failures. We have revised paragraph (b) of this AD accordingly.

One commenter, the airplane manufacturer, requests that we limit the requirement to replace connectors to connectors that are prioritized “A+” and “A” (as defined in Revision 1 of the referenced service bulletin). The commenter notes that Revision 1 of the referenced service bulletin designates connectors with “A+” priority as those that have failed in service, and connectors with “A” priority as those that are in the same physical area and exposed to the same conditions as the failed connectors. (Connectors with “B” priority are those that are in the same physical areas as connectors with “A” priority, but that are not expected to be subject to the same environmental conditions ( e.g. , possible exposure to moisture) as connectors with “A” priority. Connectors with priority “C” are all other connectors in which 115-volt power is present.)

We acknowledge the manufacturer's position with regard to known service problems. We also acknowledge our common interest in replacing all of the connectors. We have determined that all connectors, regardless of their location, have the potential to fail if they are contaminated by moisture. Also, these connectors are interchangeable, so it is possible that connectors with priority “C” could be removed and reinstalled in a location where they would merit priority “A+” or “A” replacement. For these reasons, we find that all connectors are subject to the same unsafe condition that is addressed by this AD. We find that requiring replacement of all connectors with improved connectors that are more resistant to moisture contamination will eliminate the unsafe condition and ensure the continued operating safety of the affected airplane fleet. As stated previously, we have agreed to extend the compliance time for the replacement of all connectors to 60 months, which the manufacturer has agreed will not impose an unnecessary burden on operators. No further change is necessary in this regard.

Several commenters request that we revise the Cost Impact section of the proposed AD to increase the estimated number of work hours, as well as the estimated number of affected Model 777-200 series airplanes.

Several commenters note that the referenced service bulletin estimates that 242 work hours per airplane will be needed to modify each Model 777-200 series airplane. One of these commenters explains that the time required for gaining access and closing up should be included as a specific cost of the proposed AD because the overhead bins and ceiling panels would not normally be removed at a maintenance visit corresponding to the proposed compliance time of 18 months. Another commenter notes that the estimate in the service bulletin of 242 work hours is low. Based on its past experience, the commenter estimates that 300 work hours per airplane will be necessary.

We do not concur with the request to increase the estimated number of work hours. Section 1. G., “Manpower,” of the service bulletin states that 242 work hours per airplane will be needed to accomplish the actions that apply to Model 777-200 series airplanes. This total figure of 242 work hours includes 79 work hours for opening access and 91 work hours for closing access. We do not typically include the time for gaining access and closing up in the Cost Impact estimates in ADs. Thus, in this AD we estimate that 72 work hours will be needed to accomplish the required actions on each Model 777-200 series airplane.

Regarding the commenter's statement that the time for gaining access and closing up should be included because the overhead bins and ceiling panels would not normally be removed at a maintenance visit corresponding to the originally proposed compliance time of 18 months: As explained previously, we have revised the compliance time for this AD from 18 months to 60 months. This extension should allow the majority of affected operators to accomplish the required actions at a scheduled heavy maintenance visit (when stowage bins and ceiling panels are removed). No additional change is necessary in this regard.

Several commenters also note that the estimate that the proposed AD would affect 22 Model 777-200 series airplanes of U.S. registry is incorrect, and that there are actually 107 of these airplanes that would be affected by the proposed AD. We partially concur. We find that 74 Model 777-200 series airplanes will be affected by this AD. We also find that there are no affected Model 777-300 series airplanes currently on the U.S. Register. (The proposed AD identifies 86 affected Model 777-300 series airplanes.) We have revised the Cost Impact section of this AD accordingly.

Other commenters request that we add cost estimates for additional actions. One commenter requests that we revise the cost estimate to include the work hours for modifying each light connector. We do not concur. We find that the light connectors may be modified by the operator or by a vendor. Thus, the time for modifying the light connectors may not be borne by the operator. No change is necessary in this regard.

One commenter states that, to support the modification program, it will need to purchase an entire ship's set of lights to create a rotating pool of light assemblies. This commenter requests that we increase the cost estimate to reflect this cost of $63,200. We do not concur. The need to create a rotating pool of light assemblies is a planning decision made by the individual operator. Not all operators will choose such a course of action; thus, the cost of additional light assemblies should not be attributable to this AD. No change is necessary in this regard.

Another commenter requests that we revise the Cost Impact section of the proposed AD to include the cost of an oxygen leak detection test that it must accomplish following removal/installation of stowage bins on airplanes equipped with gaseous oxygen systems. We do not concur. Not all airplanes subject to this AD are equipped with a gaseous oxygen system in the passenger cabin. Thus, not all airplanes will be subject to the cost of a test of such a system. Further, the estimated work hours needed for testing, as specified in Section 1.G., Manpower, of the service bulletin, are already included in the Cost Impact estimate specified in this AD. No change is necessary in this regard.

We have revised the Note included in the proposed AD to correct the reference to Diehl Service Information Letter 3352-33-01/01, dated June 20, 2001, and to designate the note as “Note 1.”

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

There are approximately 264 airplanes of the affected design in the worldwide fleet. We estimate that 74 Model 777-200 series airplanes of U.S. registry will be affected by this AD.

For Model 777-200 series airplanes, it will take approximately 72 work hours per airplane to accomplish the required actions, at an average labor rate of $65 per work hour. Required parts will cost approximately $4,631 per airplane. Based on these figures, we estimate the cost impact of this AD on U.S. operators of Model 777-200 series airplanes to be $689,014, or $9,311 per airplane.

There are currently no affected Model 777-300 series airplanes on the U.S. Register. However, if an affected Model 777-300 series airplane is placed on the U.S. Register in the future, it will take approximately 82 work hours per airplane to accomplish the required actions, at an average labor rate of $65 per work hour. Required parts will cost approximately $5,488 per airplane. Based on these figures, we estimate the cost impact of this AD to be $10,818 per affected Model 777-300 series airplane.

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

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 .

On June 10, 2005, FAA issued AD 2005-12-20, Amendment 39-14136 (70 FR 35370, June 20, 2005), which applies to certain The Lancair Company (Lancair) Model LC41-550FG airplanes.

We incorrectly referenced the affected airplane model as LC41-550F. The correct airplane model is LC41-550FG. This action corrects the regulatory text.

This AD requires both visual and dye penetrant inspections of the elevator torque tube assembly for cracks. If a crack is found, this AD requires replacement with a modified assembly that incorporates a steel doubler. This AD also requires replacement of the modified elevator torque tube assembly every 300 hours time-in-service or 18 months (whichever occurs first).

This correction is needed to ensure that the affected airplane model is correct and to eliminate misunderstanding in the field.

The effective date remains June 21, 2005.

On March 11, 2005, the FAA proposed to amend Title 14 Code of Federal Regulations part 71 (CFR part 71) to establish Class D airspace at Front Range Airport, Denver, CO, (70 FR 12161). An Airport Traffic Control Tower (ATCT) is under construction at Front Range Airport, Denver CO, which will meet criteria for Class D airspace. The Class D airspace area will be effective during periods that the ATCT is open.

Interested parties were invited to participate in this rule making proceeding by submitting written comments on the proposal to the FAA. No comments were received. Class D airspace designations are published in paragraph 5000 of FAA Order 7400.9M dated August 30, 2004, and effective September 16, 2004, which is incorporated by reference in 14 CFR part 71.1. The Class D airspace designation listed in this document will be published subsequently in that Order.

This amendment to 14 CFR part 71 establishes Class D airspace at Front Range Airport, Denver CO. An Airport Traffic Control Tower (ATCT) is under construction at Front Range Airport, Denver, CO, which will meet criteria for Class D airspace.

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

The FAA published this direct final rule with a request for comments in the Federal Register on April 25, 2005 (70 FR 21144). The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on September 1, 2005. No adverse comments were received, and thus this notice confirms that this direct final rule will become effective on that date.

This amendment to 14 CFR 71 modifies the Class E surface area and the Class E airspace area extending upward from 700 feet AGL at Mc Cook, NE. An examination of controlled airspace for Mc Cook, NE revealed that neither airspace area is in compliance with FAA Orders 7400.2E, Procedures for Handling Airspace Matters, and 8260.19C, Flight Procedures and Airspace. The radius of the Class E surface area is expanded from within a 4.6-mile radius to within a 5.0-mile radius of the Mc Cook Regional Airport and the existing extensions remain the same. The Class E airspace area extending upward from 700 feet AGL is reduced from within a 7.6-mile radius to within a 7.5-mile radius of the Mc Cook Regional Airport. The Mc Cook Regional Airport name is corrected in both legal descriptions. These modifications bring the legal descriptions of the Mc Cook, NE Class E airspace areas into compliance with FAA Orders 7400.2E and 8260.19C. Class E airspace areas designated as surface areas are published in Paragraph 6002 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. Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in Paragraph 6005 of the same Order. The Class E airspace designations listed in this document would be published subsequently in the Order.

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

Interested parties are invited to participate in this rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2005-21608/Airspace Docket No. 05-ACE-18.” The postcard will be date/time stamped and returned to the commenter.

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

The FAA has determined that this regulation is noncontroversial and unlikely to result in adverse or negative comments. For the reasons discussed in the preamble, I certify that this regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, 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.

The rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority since it contains aircraft executing instrument approach procedures to Mc Cook Regional Airport.

The Federal Energy Regulatory Commission published a document in the Federal Register of May 17, 2005 (70 FR 28204). This correction changes the order number of the final rule.

In rule FR Doc. 05-9803 published on May 17, 2005 (70 FR 28204), make the following correction. On page 28205, in the first column, change “Order No. 654” to “Order No. 587-S”.

1. On March 3, 2005, the Commission issued a “Notice Soliciting Public Comment” (the notice) on its procedures for dealing with critical energy infrastructure information (CEII). 70 FR 12867 (Mar. 16, 2005). The Commission's CEII procedures were established by Order Nos. 630 and 630-A. See Critical Energy Infrastructure Information, Order No. 630, 68 FR 9857 (Mar. 3, 2003), FERC Stats. & Regs. ¶ 31,140 (2003); order on reh'g , Order No. 630-A, 68 FR 46456 (Aug. 6, 2003), FERC Stats. & Regs. ¶ 31,147 (2003). After soliciting public comment on the effectiveness of the rules in February 2004, the Commission amended 18 CFR 388.113 and clarified some other issues regarding CEII in Order No. 649. 1 After receiving comments in response to its most recent notice, the Commission further amends and clarifies 18 CFR 388.113 and its CEII process.

2. Shortly after the attacks on September 11, 2001, the Commission began its efforts with respect to CEII. See Statement of Policy on Treatment of Previously Public Documents, 66 FR 52917 (Oct. 18, 2001), 97 FERC ¶ 61,130 (2001). As a preliminary step, the Commission removed documents such as oversized maps that were likely to contain detailed specifications of facilities from its public files and Internet page, and directed the public to use the Freedom of Information Act (FOIA) request process in order to request such information. 2 After receiving responses to a notice of inquiry (NOI) it issued on January 16, 2002, 67 FR 3129 (Jan. 23, 2002), FERC Stats. & Regs. ¶ 35,542 (2002), the Commission issued a notice of proposed rulemaking (NOPR) regarding CEII, which proposed expanding the definition of CEII to include detailed information about proposed facilities as well as those already licensed or certificated by the Commission. Notice of Rulemaking and Revised Statement of Policy, 67 FR 57994 (Sept. 13, 2002); FERC Stats. & Regs. ¶ 32,564 (2002). The Commission issued Order No. 630 on February 21, 2003, defining CEII to include information about proposed facilities, and to exclude information that simply identified the location of the infrastructure. Order No. 630, 68 FR 9857, FERC Stats. & Regs. ¶ 31,140. After receiving a request for rehearing on Order No. 630, the Commission issued Order No. 630-A on July 23, 2003, denying the request for rehearing, but amending the rule in several respects. Order No. 630-A, 68 FR 46456, FERC Stats. & Regs. ¶ 31,147. Specifically, the order on rehearing made several minor procedural changes and clarifications, added a reference in the regulation regarding the filing of non-Internet public (NIP) information, a term first described in Order No. 630, and added the aforementioned commitment to review the effectiveness of the new process after six months. The February 13, 2004, notice facilitated the review contemplated in Order No. 630-A. This order continues the Commission's ongoing commitment to evaluate the effectiveness of the CEII regulations by addressing the comments received in response to its March 3, 2005, notice.

3. In its March 3, 2005, notice, the Commission specifically invited comments on the following issues: (i) Is the CEII designation being misused or claimed for information that does not meet the definition? (ii) Is there a need for the non-Internet public designation? Is it currently too broad? Are there location maps that should be available on the Internet? (iii) Does it make sense for the Commission to protect (either as CEII or NIP) information that is readily publicly available, for instance in the USGS maps? (iv) Are there classes of information that are not appropriate for release even when a legitimate requester agrees to the terms of an appropriate non-disclosure agreement? The Commission received seventeen responses to its notice. 3 While some of the comments address the specific questions raised by the Commission, the majority of the comments relate more to the Commission's processing of requests for CEII. Commenters raise issues regarding verification of requesters, use of non-disclosure agreements and how to ensure compliance with such agreements. In addition, several commenters raise concerns about CEII claims in the context of market-based rate (MBR) filings, and how the typical CEII response times makes it difficult to participate in such proceedings. At least one commenter raises issues regarding owner operator requests for information about their own facilities. Finally, as part of its review of the CEII process, the Commission is revisiting its rules as regards to federal agency requests. These issues are discussed below.

4. The March 3, 2005, notice specifically asked whether the CEII designation was being misused by filers to claim protection for information that does not meet the definition of CEII. The majority of commenters addressing this issue say they are not aware of a problem with misuse of the CEII designation. 4 With one exception discussed below, over-designation does not appear to be an issue.

5. The one area the commenters identify as a potential problem is MBR filings. Both the Transmission Access Policy Study Group (TAPS) and the American Public Power Administration (APPA) raise the issue of whether CEII protection is warranted for these filings. APPA claims that there is “widespread designation of simultaneous import capability studies as CEII, with such designations appearing to apply to data and information that does not appear to be CEII.”  5 Similarly, TAPS evidences concern that “CEII claims are overbroad, especially in the MBR context where entire simultaneous transmission studies and underlying workpapers are designated as CEII.”  6 TAPS questions whether all such information qualifies as CEII. Both APPA and TAPS suggest that the Commission commit to perform random audits of CEII filings. 7 TAPS also encourages the Commission to stress that requesters must make every effort to segregate public information from CEII, and only withhold the CEII from ready public access. TAPS further states that submitters should provide thorough descriptions of the material designated as CEII, and the justification for such label. 8

6. We appreciate commenters' concerns that CEII claims in the MBR context may be overbroad, particularly where entire simultaneous transmission studies and underlying work papers are designated as CEII. In an effort to achieve proper designation of material as CEII while avoiding misuse of the CEII designation, we encourage requesters to make every effort to segregate public information from CEII and to only withhold the CEII from ready public access. To this end, we emphasize that 18 CFR 388.112(b)(1) requires submitters to provide a justification for CEII treatment. The way to properly justify CEII treatment is by describing the information for which CEII treatment is requested and explaining the legal justification for such treatment. The Commission may audit random CEII MBR filings in the future to verify that the CEII label is not being misused.

7. The Commission's most recent Notice requested comment regarding the need for the non-Internet public (NIP) designation, whether the current NIP definition is too broad and should exclude certain location maps. Only about half of the commenters specifically address the NIP issue. Duke claims that the NIP designation is not necessary given that much of the NIP information is already accessible to the public through other means, and information that contains sufficient detail could be treated as CEII. Similarly, Edison Electric Institute (EEI) and ITC state that information that raises security concerns should be treated as CEII, not NIP; however, EEI is in favor of use of the NIP category as a fallback. 9 Williston Basin favors keeping the NIP category, stating “[a]bsent a reversal of the Commission's determination that location information does not qualify as CEII, [it] believes the need for the [NIP] designation is unequivocal.” Williston Basin at p. 3. INGAA, NHA, and PG&E also appear to favor retaining the NIP category. 10

8. After analyzing the advantages and disadvantages of the NIP category, we have decided to retain a NIP category, modified to exclude certain general information. To date, the NIP label has been applied to “location maps and diagrams that do not rise to the level of CEII.” The following documents previously have been identified as NIP: “(1) USGS 7.5 minute topographic maps showing the location of pipelines, dams, or other aboveground facilities, (2) alignment sheets showing the location of pipeline and aboveground facilities, right of way dimensions, and extra work areas; (3) drawings showing site or project boundaries, footprints, building locations and reservoir extent; and (4) general location maps.”  11 Anyone wishing to obtain NIP may get it upon request from the Public Reference Room or from Commission staff; however it is not made available to the public through the Commission's Internet site.

9. The Commission has decided to modify the definition of NIP to exclude general, stylized non-system location maps, and to henceforth, make such maps available through the Commission's Internet site. “Stylized non-system location maps” are those showing generalized project facility locations and little more information than the state in which the facilities are located. Topographic maps, alignment sheets, and drawings with project specifics will continue to be treated as NIP, as will maps that show the location of the national, regional, or specific pipeline systems.

10. Eight entities responded to the question of whether it made sense for the Commission to protect (either by NIP or CEII designation) information that is publicly available elsewhere. Duke and El Paso say there is no need for the Commission to attempt to protect information that was available to the public from another source. 12 However, most of the others support some sort of protection for sensitive information regardless of whether it may be available elsewhere. For instance, INGAA advocates the Commission make its own determination of whether information should be protected, “so as not to exacerbate a security problem that might already exist,” explicitly referencing the Commission's NIP treatment for USGS maps depicting pipeline facilities as appropriate although the maps may be available through other sources. 13 ITC, MidAmerican, NHA, PG&E, and Williston Basin likewise support some level of protection for such information, with NHA stating that “[r]ather than lowering its standards, NHA would urge other agencies that handle CEII and NIP documents to raise the bar and come up to the level of protection rightly provided by FERC.”  14

11. In light of the comments received, the Commission will continue to protect information that it believes poses a risk to the security of the infrastructure, even where the information may be publicly available elsewhere, as long as the information fits within the definition of NIP (as revised) or CEII.

12. The final issue posed in the Notice was whether there is information that may not be appropriate for release even where a CEII requester agrees to abide by the terms of an NDA. Nine commenters responded to that question, with the majority stating that especially sensitive information is not always appropriate for release. 15 The types of information companies cite as examples include commercially sensitive (or trade secret type) information, 16 privileged information (attorney-client, attorney work product, or deliberative process), 17 cultural resources information, 18 LNG and pipeline project details, 19 and security information. 20

13. ITC and MidAmerican are the exceptions, with ITC indicating that as long as the requester follows the CEII request process, evidences a legitimate need for the information, and agrees to abide by the NDA, that he or she should be given the information requested. MidAmerican says it “is not aware of a class of information that in all cases should not be considered for public release upon execution of [an NDA] to a properly screened requestor with a legitimate need for the information.”  21

14. The Commission's existing rule specifies that the decision whether to release CEII involves a balancing of the potential harm from release against the requester's need for the information. This balancing implicitly recognizes that information may not be suitable for release where the extreme sensitivity of the information outweighs a requester's legitimate need for that information. The Commission already made such a determination in the case of some particularly sensitive information related to LNG tanker attacks. 22 In addition, in several instances the Commission has withheld information because it fell within the Commission's deliberative process privilege or contained cultural resources information that the Commission did not release prior to its creation of CEII. In light of the comments received, the Commission intends to continue to withhold CEII in the instances where the potential harm from disclosure outweighs the requester's need for the information

15. Many of the commenters encourage the Commission to adopt stricter standards when it comes to verifying the legitimacy and need of requesters. Commenters ask that the Commission follow a standard, articulated process of verifying requesters' legitimacy and need, and require requesters to provide sufficiently detailed statements of need and intended use of the information for the record. 23

16. Form No. 715 data is of particular concern to several requesters, including BPA, FirstEnergy, and PG&E. Bonneville Power Administration (BPA) encourages the Commission to “require a clear and detailed explanation of why the data from each utility or interconnection is needed, how the data will be used by the requester, and how the requester will prevent its release to any other person.”  24 FirstEnergy argues that “the rationale that consultants provide a valuable service to the public has nothing to do with the Commission's responsibility to determine what specifically a particular purported consultant is going to do with the CEII or to prevent the unauthorized disclosure of CEII to third parties.”  25

17. Form No. 715 presents unique issues because that information is not typically requested in order to participate in a particular Commission proceeding, rather, it is often requested by consultants and academics using the data to create models in order to advise clients and potential clients. The Commission continues to recognize the valuable service provided by these consultants and researchers, and believes that the benefits derived from legitimate consultants and researchers performing such work are substantial. The Commission also realizes that much of their work may be done prior to being engaged by a particular client. Where the work is being done on behalf of a particular client, the regulation requires that the requester identify the client on whose behalf the CEII is being requested. Where the research or product is being developed generally, and there is not yet a client, the requester should provide information by which the Commission can verify his or her legitimacy, such as identifying a past client for whom the consultant has provided similar services or their university affiliation. Such information will help the Commission verify that the requester is providing legitimate services or conducting valuable research. It would be counterproductive to deny requests simply because the consultant or researcher could not identify a particular client on whose behalf the work is being performed.

18. Another issue regarding Form No. 715 request arises when a consultant or other requester doesn't clearly articulate why he or she needs data for all regions. Requesters are reminded to justify in their requests why they need the information they have requested. Requesters are warned that failure to do so may result in denial of their requests. This is not a change from the current regulation, which requires requests provide “a detailed statement explaining the particular need for and intended use of the information.” 18 CFR 388.113(d)(3)(i). The Commission intends to be more rigorous in analyzing whether a request complies with the regulatory requirement, and will expect to see detailed descriptions regarding the need for the information and the intended use of the information. It will not be sufficient, for instance, to simply say the information is needed to analyze the transmission system. The Commission will look for details such as what type of analysis is being performed, what portions of the system are being analyzed, and who are the potential clients or customers who may benefit from the analysis.

19. PJM Interconnection, L.L.C. (PJM) encourages the Commission to seek assistance from the Department of Homeland Security, the Federal Bureau of Investigation, and other law enforcement agencies regarding “requester identification and verification procedures as well as making case-by-case decisions about whether to disclose information.”  26 The Commission is exploring options available through other federal agencies, in particular the possible use of existing databases maintained by other agencies in order to screen CEII requesters.

20. Commenters also raise issues regarding the Commission's notice and comment process. More than one commenter notes difficulties in getting notice and comments letters on a timely basis. 27 Chandeleur & Sabine requests that the Commission provide notice to the corporate official designated to receive service. 28 Duke encourages the Commission to provide notice using electronic means. 29 Several commenters are requesting longer notice and comment periods. 30

21. The Commission currently is providing submitters with either five business days or seven calendar days in which to comment on requests. Where the Commission has the submitter's e-mail address or facsimile number, it will use one of those methods to convey the notice and comment letter to the submitter. We believe in most instances this will provide sufficient time to enable submitters to comment on the request. One problem with routinely giving ten days or more for responses to notice and comment letters is that it extends the time for response, which can be critical where the information is requested in order to participate in a Commission proceeding. 31 If a submitter requires additional time, it should request more time from the contact person identified in the Commission's notice and comment letter.

22. For now, the Commission is not planning to change the notice and comment process to notify the person designated to receive service on behalf of a company. There has not been a broad call from submitters to change the person notified; the current method of notifying the person submitting the information at issue generally seems to be working for most companies. Adding additional contacts to the notice and comment mailing lists complicates the notice and comment process, especially with regard to requests (for CEII such as Form Nos. 715 and 567) that involve large numbers of submitters.

23. Several companies offer suggestions regarding NDAs, voicing a common concern with respect to compliance with NDAs. 32 EEI and PG&E both raise questions regarding how consultants and advisors use CEII to advise clients without revealing the CEII to the clients themselves. 33 FirstEnergy states that it is impossible “to meaningfully assess the risk that the CEII may be improperly disclosed to others (regardless of the execution of an NDA).”  34 Several of the commenters suggest that the Commission undertake to audit compliance with the NDAs. 35 The Commission agrees that random audits may be useful in the future to ensure compliance with NDAs. Given that to date the NDAs have not included any clause whereby the requester agrees to such audit, the Commission believes that the NDAs should be revised accordingly, and audits should be restricted to those requesters who receive information pursuant to the revised NDAs. In addition, the Commission will add language to NDAs notifying requesters that a violation of the NDA could result in civil or criminal sanctions. This will provide requesters with an additional incentive to comply with the terms of the NDA.

24. APPA and TAPS evidence particular concern with market based rate [MBR] filings where the filer claims CEII treatment for portions of its filing. As discussed above, one concern is whether filers are over-designating portions of such filings as CEII, particularly where simultaneous transmission studies and underlying work papers are designated as CEII. Another concern is whether interveners have sufficient time to respond to market based rate filings for which CEII is claimed. TAPS urges the Commission to “synchronize the time available to respond to MBR filings with the need to obtain CEII,” citing the difficulty in responding within 21 days when it can take 30 days or more to obtain access to CEII. 36 TAPS recommends that the Commission adopt a policy “to respond favorably to intervenor motions for additional time to prepare interventions and protests where it is necessary to obtain and analyze CEII.”  37

25. In response to commenters' concerns that intervenors should have sufficient time to respond to MBR filings for which CEII is claimed, the Commission is willing to consider on a case-by-case basis requests for extensions of time to prepare protests to MBR filings where an intervenor demonstrates that it needs additional time to obtain and analyze CEII. Intervenors should file a request for an extension of time before the deadline for comments runs, explicitly stating that they have filed a CEII request and are waiting for a response. If a CEII request is filed in a case involving a new application for MBR authority, however, the Commission's ability to grant a request for an extension of time would necessarily be limited by the statutory action date in such a case. In all MBR cases in which CEII is filed, the Commission strongly encourages the parties to either promptly negotiate a protective order in the proceeding governing access to the CEII, or privately negotiate for the submitter to provide the data to interested parties pursuant to an appropriate non-disclosure agreement. Either one of these alternative approaches is more likely to expedite the requester's receipt of the information.

26. The Commission received several miscellaneous comments regarding its CEII processing. Weaver's Cove notes an apparent inconsistency in requiring a company like Weaver's Cove to submit a CEII request in order to obtain a response prepared by someone who made a responsive filing (marked as CEII) after gaining access to the Weaver's Cove original CEII pleading. 38 Weaver's Cove urges staff to automatically release such information to the original submitter. The problem with this approach is that it is not guaranteed that the responsive pleading does not contain additional CEII that was not already contained in the original CEII filing. It could be that the responsive pleading is marked as CEII because it contains CEII about a similar project. In that case, it would not be fair to automatically release the CEII. Instead, the Commission encourages entities to negotiate to get the information directly from the submitters. In fact, the Commission prefers that requesters negotiate directly with submitters whenever practical.

27. PJM encourages the Commission to clarify that CEII released to an RTO, NERC or reliability coordinator does not invalidate the information's protection as CEII. 39 As far as the Commission is concerned, such limited releases to entities with a clear need to know such information would not result in loss of CEII protection.

28. In the course of reviewing its CEII regulations and processing, the Commission has revisited processing of federal agency requests. As the Commission gets more involved in reliability issues, its need to share information, particularly CEII, with fellow federal agencies increases. In light of this increased need to share CEII, the current system of requiring federal agencies to file formal CEII requests is impractical and unwieldy. For this reason, the Commission has decided to permit federal agencies to request CEII outside of the normal CEII process. As previously noted in Order No. 630-A, federal employees pose less of a security risk because most are screened as part of their federal employment. 40 Henceforth, federal agency requesters can request CEII directly from the Commission without filing formal CEII requests under 18 CFR 388.113. Submitters of CEII will not be given notice and an opportunity to comment on federal agency requests. In order to control release of CEII, authority to approve federal agency requests is restricted to Commission officials at or above the level of division director. 41 The regulation at 18 CFR 388.113(d) is amended to reflect this change.

29. The Office of Management and Budget's (OMB's) regulations require that OMB approve certain information collection requirements imposed by agency rule. 5 CFR 1320.12 (2004). This final rule does not impose any additional information collection requirements. Therefore, the information collection regulations do not apply to this final rule.

30. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment. 42 The Commission has categorically excluded certain actions from this requirement as not having a significant effect on the human environment. Included in the exclusions are rules that are clarifying, corrective, or procedural or that do not substantially change the effect of the regulations being amended. 18 CFR 380.4(a)(2)(ii). This rule is procedural in nature and therefore falls under this exception; consequently, no environmental consideration is necessary.

31. The Regulatory Flexibility Act of 1980 (RFA)  43 generally requires a description and analysis of final rules that will have significant economic impact on a substantial number of small entities. The Commission is not required to make such analyses if a rule would not have such an effect. The Commission certifies that this proposed rule, if finalized, would not have such an impact on small entities.

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

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

34. User assistance is available for eLibrary and the FERC's Web site during normal business hours. For assistance, please contact FERC Online Support at 1-866-208-3676 (toll free) or 202-502-6652 (e-mail at FERCOnlineSupport@FERC.gov ), or the Public Reference Room at 202-502-8371, TTY 202-502-8659 (e-mail at public.referenceroom@ferc.gov ).

35. These regulations are effective immediately upon publication in the Federal Register . In accordance with 5 U.S.C. 553(d)(3), the Commission finds that good cause exists to make this final rule effective immediately. The regulatory changes in the rule concern matters of internal operations and will not affect the rights of person appearing before the Commission. There is, therefore, no reason to make it effective at a later time.

36. The provisions of 5 U.S.C. 801 regarding Congressional review of final rules do not apply to this final rule, because the rule concerns agency procedure and practice and will not substantially affect the rights of non-agency parties.

37. The Commission is issuing this as a final rule without a period for public comment. Under 5 U.S.C. 553(b), notice and comment procedures are unnecessary where a rulemaking concerns only agency procedure and practice, or where the agency finds that notice and comment is unnecessary. The regulatory changes concern only matters of agency procedure and will not significantly affect regulated entities or the general public.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B) the Coast Guard finds that good cause exists for not publishing an NPRM. Publishing an NPRM would be impracticable. The event will take place on July 17, 2005. Because of the danger posed by high-speed powerboats racing in a closed circuit, special local regulations are necessary to provide for the safety of event participants, spectator craft and other vessels transiting the event area. For the safety concerns noted, it is in the public interest to have these regulations in effect during the event.

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 . Delaying the effective date would be contrary to the public interest, since immediate action is needed to ensure the safety of the event participants, spectator craft and other vessels transiting the event area. However advance notifications will be made to affected waterway users via marine information broadcasts and area newspapers.

On July 17, 2005, the Offshore Performance Association will sponsor the OPA Atlantic City Grand Prix. The event will consist of approximately 40 offshore powerboats conducting high-speed competitive races on the waters of the Atlantic Ocean adjacent to Atlantic City, New Jersey. A fleet of approximately 200 spectator vessels is expected to gather nearby to view the competition. Due to the need for vessel control during the event, vessel traffic will be temporarily restricted to provide for the safety of participants, spectators and transiting vessels.

The Coast Guard is establishing temporary special local regulations on specified waters of the Atlantic Ocean adjacent to Atlantic City, New Jersey. The regulated area includes a 3-mile long seciton of the Atlantic Ocean south of Absecon Inlet, extending approximately 300 yards out from the shoreline. The temporary special local regulations will be enforced from 9:30 a.m. to 3:30 p.m. on July 17, 2005, and will restrict general navigation in the regulated area during the races. Except for participants in the OPA Atlantic City Grand Prix and persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the regulated area.

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

We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary.

Although this regulation will prevent traffic from transiting a portion of the atlantic Ocean adjacent to Atlantic City, New Jersey during the event, the effect of this regulation will not be significant due to the limited duration that the regulated area will be in effect and the extensive advance notifications that will be made to the maritime community via the Local Notice to Mariners, marine information broadcasts, and area newspapers, so mariners can adjust their plans accordingly. Additionally, the regulated area has been narrowly tailored to impose the least impact on general navigation yet provide the level of safety deemed necessary.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities, some of which might be small entities: the owners or operators of vessels intending to transit this section of the Atlantic Ocean during the event.

This rule would not have a significant economic impact on a substantial number of small entities for the following reasons. This rule would be in effect for only a limited period. Affected waterway users can pass safely around the regulated area. Before the enforcement period, we will issue maritime advisories so mariners can adjust their plans accordingly.

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

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

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

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

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

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

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

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

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

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

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

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

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

We have analyzed this rule under Commandant Instruction M16475.1D, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(h), of the Instruction, from further environmental documentation. Special local regulations issued in conjunction with a regatta or marine parade permit are specifically excluded from further analysis and documentation under that section.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. The exact date of the event was not known with sufficient time to allow for the publication of an NPRM followed by an effective date before the event.

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 . Delaying this rule would be contrary to the public interest of ensuring the safety of spectators and vessels during this event, and immediate action is necessary to prevent possible loss of life or property.

The following area is a safety zone: All waters located within 400 yards of the triangular race course as drawn by a line from position 41°43′49″ N, 081°21′18″ W to position 41°46′02″ N, 081°20′51″ W and to 41°45′34″ N, 081°18′04″ W. Entry into, transit through, or anchoring within this safety zone is not allowed unless authorized by the Captain of the Port Cleveland or his designated on-scene representative. The designated on-scene representative will be the Coast Guard Patrol Commander. The Coast Guard Patrol Commander may be contacted via VHF Channel 16.

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

We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DHS is unnecessary.

This determination is based on limited time that the safety zone will be in effect, and the extensive advance notice will be made to the maritime community via Local Notice to Mariners, facsimile, and marine safety information broadcasts. This regulation is tailored to impose a minimal impact on maritime interests without compromising safety.

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

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

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

This safety zone would not have a significant economic impact on a substantial number of small entities for the following reasons: The proposed zone is only in effect for a few hours on the day of the event. Before the activation of the safety zone, the Coast Guard will issue maritime advisories available to users who may be impacted through notification in the Local Notice to Mariners, facsimile, and marine safety information broadcasts. Additionally, the Coast Guard has not received any reports from small entities that will be negatively affected.

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

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

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

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

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

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

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

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

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

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

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g. , specifications of materials, performance, design, or operation; test methods; sampling procedure; and related management system 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 proposed rule under Commandant Instruction M16475.1D, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that there are no factors in this case that would limit the use of categorical exclusion under Section 2.B.2 of the Instruction. Therefore, we believe this rule should be categorically excluded under figure 2-1, paragraph 34(g) of the Instruction, from further environmental documentation.

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

In a document published in the Federal Register on October 7, 2004 (69 FR 60083), VA issued an interim final rule that set forth guidelines to govern VA's determinations as to whether presumptions of service connection are warranted for any disease based on a finding that the disease may be associated with service involving detention or internment as a prisoner of war (POW). The interim final rule also established presumptions of service connection, pursuant to those guidelines, for atherosclerotic heart disease, hypertensive vascular disease, stroke, and their complications in former POWs. Finally, the interim final rule revised VA's regulations to reflect statutory changes made by section 201 of the Veterans Benefits Act of 2003, Public Law No. 108-183, which revised 38 U.S.C. 1112(b) to remove, for certain POW presumptive diseases, the previous requirement that the former POW must have been detained or interned for at least 30 days in order to qualify for the presumption. We solicited public comments on the interim final rule and we received comments from one individual.

In the October 7, 2004, Federal Register notice, we explained that VA generally employs evidentiary presumptions of service connection to assist claimants who face unusually difficult evidentiary burdens in demonstrating entitlement to VA disability and death benefits, due to circumstances such as the complexity of the medical issues involved in the claim or the lack of contemporaneous medical records during periods of service. We explained that Congress had previously established guidelines for determining whether new presumptions of service connection are warranted for disabilities associated with certain hazards of service, but had not established any guidelines for determining whether presumptions were warranted for diseases associated with service involving detention or internment as a prisoner of war. Accordingly, the interim final rule established such guidelines in 38 CFR 1.18, which, among other things, states that the Secretary of Veterans Affairs may establish a presumption of service connection for a disease when the Secretary finds that there is “limited/suggestive” evidence that an increased risk of such disease is associated with service involving detention or internment as a POW and the association is biologically plausible.

Applying the new guidelines in § 1.18, the Secretary determined that presumptions of service connection were warranted for atherosclerotic heart disease, hypertensive vascular disease, stroke, and their complications based on medical evidence indicating that those diseases are associated with service involving detention or internment as a POW. Accordingly, the interim final rule revised 38 CFR 3.309(c) to add those diseases to the list of diseases presumed to be associated with such service.

We received comments from an epidemiologist with experience in veterans' health studies. Based on several medical studies, the commenter states that veterans who have a long-term history of post-traumatic stress disorder (PTSD) have a high risk of developing cardiovascular disease and myocardial infarction, particularly if such veterans suffer from other major psychiatric disorders or inflammatory diseases in addition to PTSD. The commenter states that, because former POWs have a relatively high rate of PTSD incurrence, they would presumably have an increased risk of cardiovascular disease. As noted above, the interim final rule established presumptions of service connection for atherosclerotic heart disease, hypertensive vascular disease, and their complications, including myocardial infarction, in former POWs. This action was based on the Secretary's determination that there was at least limited/suggestive evidence of an association between cardiovascular disease and POW experience and that such an association is biologically plausible. We noted that medical studies had detected an increased risk of cardiovascular disease among former POWs. We further noted that the evidence of an association between PTSD and cardiovascular disease lends support to our conclusion that cardiovascular disease is associated with POW experience. Accordingly, we believe the commenter's statement that former POWs have a higher risk of cardiovascular disease is consistent with our interim final rule.

To the extent the comment might be viewed as suggesting that we should use the term “cardiovascular disease” rather than the terms “atherosclerotic heart disease” and “hypertensive vascular disease” to describe the presumptive diseases, we make no change based on that comment. As explained in our October 7, 2004, Federal Register notice, the terms “atherosclerotic heart disease” and “hypertensive vascular disease” are broad terms encompassing a wide variety of cardiovascular diseases that may be described by more specific diagnoses in individual cases. We have concluded that those terms are sufficiently broad to cover the cardiovascular diseases for which there is evidence suggestive of an association with POW experience and, moreover, for which there is a biologically plausible relationship to circumstances of POW experience such as malnutrition and stress. We do not have sufficient evidence at this time to conclude that there is a sufficiently demonstrated and biologically plausible association between POW experience and certain other types of cardiovascular disease such as those of viral or bacterial origin. Accordingly, we believe that the term “atherosclerotic heart disease” most aptly describes the range of heart diseases for which current medical evidence supports a presumption of service connection, and that the term “hypertensive vascular disease” most aptly describes the range of peripheral vascular diseases for which current medical evidence supports a presumption of service connection.

The commenter also states that veterans with chronic PTSD have been found to have a significant risk of developing autoimmune diseases, such as rheumatoid arthritis, psoriasis, insulin-dependent diabetes, and hypothyroidism, and asserts that former POWs are therefore likely to have a higher risk of autoimmune diseases. We make no change based on this comment because it involves matters beyond the scope of the interim final rule. Although the interim final rule established presumptions of service connection for certain diseases, it should not be construed to reflect a determination by VA concerning the strength of any evidence that may exist for a possible association between other diseases, such as autoimmune diseases, and POW experience. In order to ensure the prompt delivery of benefits to the aging POW population, VA necessarily focused on certain diseases for which it was aware of the compelling evidence of an association with POW service. The issue of whether presumptions may be established for other specific diseases is beyond the scope of this final rule. However, the purpose of establishing guidelines in new § 1.18 was to provide a framework for VA, on an ongoing basis, to evaluate scientific and medical evidence pertaining to diseases possibly associated with POW experience as well as policy issues pertaining to the need for particular presumptions. Accordingly, evidence such as that cited by the commenter with respect to autoimmune diseases may be the subject of subsequent review and deliberation under the newly established guidelines.

We note further that existing VA regulations may provide a basis for granting service connection to former POWs who incur autoimmune diseases as a result of PTSD. Currently, 38 CFR 3.309(c) establishes a presumption of service connection for anxiety disorders, including PTSD, in former POWs. A separate regulation at 38 CFR 3.310 provides that service connection may be granted for any disability arising as a proximate result of a service-connected condition. Pursuant to those regulations, a former POW who has PTSD may be able to establish service connection for an autoimmune disease if medical evidence shows that the veteran's disease proximately resulted from the veteran's PTSD.

In the October 7, 2004, Federal Register notice, we determined that there was a basis under the Administrative Procedure Act for issuing the interim final rule with immediate effect. We invited and received public comment on the interim final rule. This document merely affirms the interim final rule as a final rule without change.

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before developing any rule that may result in an expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any given year. This rule will have no such effect on State, local, or tribal governments, or the private sector.

This document contains no new collections of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). The Office of Management and Budget (OMB) previously has approved the VA application forms governing claims for benefits based on service-connected disability or death. Those forms specify the requirements for submitting information and evidence in support of such claims and would govern any claims for benefits based on the presumptions established by this rule. By establishing presumptions of service connection, this rule will relieve some claimants of the need to submit evidence directly establishing that a cardiovascular disease was incurred in or aggravated by service. The OMB approval numbers for the relevant information collections are 2900-0001 (VA Form 21-526, Veterans' Application for Compensation and/or Pension); 2900-0004 (VA Form 21-534, Application for DIC, Death Compensation, and Accrued Benefits by a Surviving Spouse or Child); and 2900-0005 (VA Form 21-535, Application for DIC by Parent(s)).

The Secretary hereby certifies that this regulatory action will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. The reason for this certification is that these amendments will not directly affect any small entities. Only VA beneficiaries and their survivors will be directly affected.

The Catalog of Federal Domestic Assistance program numbers are 64.109, Veterans Compensation for Services-Connected Disability; and 64.110, Veterans Dependency and Indemnity Compensation for Service-Connected Death.

The NFIP enables property owners to purchase flood insurance which is generally not otherwise available. In return, communities agree to adopt and administer local floodplain management measures aimed at protecting lives and new construction from future flooding. Since the communities on the attached list have recently entered the NFIP, subsidized flood insurance is now available for property in the community.

In addition, the Federal Emergency Management Agency has identified the special flood hazard areas in some of these communities by publishing a Flood Hazard Boundary Map (FHBM) or Flood Insurance Rate Map (FIRM). The date of the flood map, if one has been published, is indicated in the fourth column of the table. In the communities listed where a flood map has been published, Section 202 of the Flood Disaster Protection Act of 1973, as amended, 42 U.S.C. 4016(a), requires the purchase of flood insurance as a condition of Federal or federally related financial assistance for acquisition or construction of buildings in the special flood hazard areas shown on the map.

The Administrator finds that delayed effective dates would be contrary to the public interest and that notice and public procedure under 5 U.S.C. 553(b) are impracticable and unnecessary.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR Part 10, Environmental Considerations. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities in accordance with the Regulatory Flexibility Act, 5 U. S. C. 601 et seq. , because the rule creates no additional burden, but lists those communities eligible for the sale of flood insurance.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Paperwork Reduction Act. This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

Executive Order 12612, Federalism. This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, October 26, 1987, 3 CFR, 1987 Comp., p. 252.

Executive Order 12778, Civil Justice Reform. This rule meets the applicable standards of section 2(b)(2) of Executive Order 12778, October 25, 1991, 56 FR 55195, 3 CFR, 1991 Comp., p. 309.

The modified BFEs are not listed for each community in this interim rule. However, the address of the Chief Executive Officer of the community where the modified BFE determinations are available for inspection is provided.

Any request for reconsideration must be based on knowledge of changed conditions or new scientific or technical data.

The modifications are made pursuant to Section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq. , and with 44 CFR Part 65.

For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.

The modified BFEs are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).

These modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State, or regional entities.

The changes in BFEs are in accordance with 44 CFR 65.4.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR Part 10, Environmental Consideration. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Mitigation Division Director of the Emergency Preparedness and Response Directorate certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because modified base flood elevations are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are required to maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.

Regulatory Classification. This interim rule is not a significant regulatory action under the criteria of Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 12612, Federalism. This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

Executive Order 12778, Civil Justice Reform. This rule meets the applicable standards of Section 2(b)(2) of Executive Order 12778.

The modified BFEs are not listed for each community in this interim rule. However, the address of the Chief Executive Officer of the community where the modified BFE determinations are available for inspection is provided.

Any request for reconsideration must be based on knowledge of changed conditions or new scientific or technical data.

The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq. , and with 44 CFR part 65.

For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.

The modified BFEs are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).

These modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by the other Federal, State, or regional entities.

The changes BFEs are in accordance with 44 CFR 65.4.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Mitigation Division Director for the Emergency Preparedness and Response Directorate certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because modified BFEs are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are required to maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.

Regulatory Classification. This interim rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 12612, Federalism. This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

Executive Order 12778, Civil Justice Reform. This rule meets the applicable standards of section 2(b)(2) of Executive Order 12778.

The Federal Emergency Management Agency makes the final determinations listed below for the BFEs and modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Mitigation Division Director of the Emergency Preparedness and Response Directorate has resolved any appeals resulting from this notification.

This final rule is issued in accordance with Section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and 44 CFR Part 67.

The Federal Emergency Management Agency has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR Part 60.

Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community.

The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.

National Environmental Policy Act . This rule is categorically excluded from the requirements of 44 CFR Part 10, Environmental Consideration. No environmental impact assessment has been prepared.

Regulatory Flexibility Act . The Mitigation Division Director of the Emergency Preparedness and Response Directorate certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because modified base flood elevations are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are required to establish and maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.

Regulatory Classification . This final rule is not a significant regulatory action under the criteria of Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 12612, Federalism . This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

Executive Order 12778, Civil Justice Reform . This rule meets the applicable standards of Section 2(b)(2) of Executive Order 12778.

Regulations governing the Loligo squid fishery are found at 50 CFR part 648. The regulations require annual specifications for maximum sustainable yield, initial optimum yield, allowable biological catch, domestic annual harvest (DAH), domestic annual processing, joint venture processing and total allowable levels of foreign fishing for the species managed under the Atlantic Mackerel, Squid, and Butterfish Fishery Management Plan. The procedures for setting the annual initial specifications are described in § 648.21.

The final rule for the 2005 annual specifications was published on March 21, 2005 (70 FR 13406). After allocating 255.1 mt (562,399 lb) for research set-aside, the remaining 2005 annual quota for Loligo squid of 16,744.9 mt (36,916,191 lb) was allocated to quarters, as shown below.

Section 648.21 requires NMFS to determine if landings in Quarter I result in a quota overage, and to deduct any overage from the quota allocation for Quarter III. The Quarter I quota allocation was 5,564.3 mt (12,267,184 lb). Based on dealer reports and other available information, NMFS has determined that landings in Quarter I were 7,659.8 mt (16,887,113 lb). The Quarter III allocation has been reduced by 2,095.5 mt (4,619,929 lb), resulting in an adjusted allocation of 801.3 mt (1,766,643 lb).

This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.

Regulations governing the tilefish fishery are found at 50 CFR part 648. The regulations require annual specification of a TAL for federally permitted tilefish vessels harvesting tilefish from within the Golden Tilefish Management Unit. The Golden Tilefish Management Unit is defined as an area of the Atlantic Ocean from the latitude of the VA/NC border (36°33.36′ N. lat.), extending eastward from the shore to the outer boundary of the exclusive economic zone, and northward to the U.S./Canada border. After 5 percent of the TAL is deducted to reflect landings by vessels issued an open-access Incidental permit category, and after up to 3 percent of the TAL is set aside for research purposes, should research TAL be set aside, the remaining TAL is distributed among the following three tilefish limited access permit categories: Full-time Tier 1 category (66 percent), Full-time Tier 2 category (15 percent), and the Part-time category (19 percent).

The TAL for tilefish for the 2005 fishing year was set at 1.995 million lb (905,172 kg) and then adjusted downward by 5 percent to 1,895,250 lb (859,671 kg) to account for incidental catch. There was no research set-aside for the 2005 fishing year. Thus, the Full-time Tier 2 permit category quota for the 2005 fishing year, which is equal to 15 percent of the TAL, is 284,288 lb (128,951 kg).

The Administrator, Northeast Region, NMFS (Regional Administrator) monitors the commercial tilefish quota for each fishing year using dealer reports, vessel catch reports, and other available information to determine when the quota for each limited access permit category is projected to have been harvested. NMFS is required to publish notification in the Federal Register notifying commercial vessels and dealer permit holders that, effective upon a specific date, the tilefish TAL for the specific limited access category has been harvested and no commercial quota is available for harvesting tilefish by that category for the remainder of the fishing year, from within the Golden Tilefish Management Unit.

The Regional Administrator has determined, based upon dealer reports and other available information, that the 2005 tilefish TAL for the Full-time Tier 2 category has been harvested. Therefore, effective 0001 hrs local time, June 28, 2005, further landings of tilefish harvested from within the Golden Tilefish Management Unit by tilefish vessels holding Full-time Tier 2 category Federal fisheries permits are prohibited through October 31, 2005. The 2006 fishing year for commercial tilefish harvest will open on November 1, 2005. Federally permitted dealers are also advised that, effective June 28, 2005, they may not purchase tilefish from Full-time Tier 2 category federally permitted tilefish vessels who land tilefish harvested from within the Golden Tilefish Management Unit for the remainder of the 2005 fishing year (through October 31, 2005).

This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.

Framework Adjustment (FW) 40B was developed by the New England Fishery Management Council (Council) primarily to improve the effectiveness of the effort control program implemented under Amendment 13 to the NE Multispecies Fishery Management Plan (April 27, 2004; 69 FR 22906), including the opportunities developed to target healthy stocks and other measures to facilitate adaptation to the Amendment 13 effort reductions. The final rule implementing measures approved under FW 40B was published on June 1, 2005 (70 FR 31323). Detailed descriptions, justifications, and a summary of the impacts of all of the management measures proposed under FW 40B were included in the proposed and final rules for that action and are not repeated here.

FW 40B implemented several revisions to the CA II Yellowtail Flounder SAP intended to help better achieve OY for the fishery and ensure that the maximum benefits from the GB yellowtail flounder TAC are realized. Among other provisions, FW 40B provided the Regional Administrator with the authority, after consulting with the Council, to adjust the trip limit and determine the total number of trips allowed into this SAP each fishing year, if necessary, in order to adapt to changing stock and fishery conditions. The authority to adjust these measures is intended to ensure that the catch of GB yellowtail flounder within the SAP would not increase the likelihood that the Eastern U.S./Canada Area would be closed due to catching the GB yellowtail flounder TAC before the end of the fishing year. Such a premature closure would likely result in regulatory discards of GB yellowtail flounder and reduce the possibility of fully harvesting the GB cod and GB haddock TAC from the Eastern U.S./Canada Area.

When determining the total number of trips allowed into the CA II Yellowtail Flounder SAP, the Regional Administrator considers specific criteria outlined in FW 40B, including the available TAC for GB yellowtail flounder, recent discards, and the potential catch of GB yellowtail flounder by vessels fishing outside of the SAP. Using these criteria, a formula was developed in FW 40B to assist the Regional Administrator in determining the appropriate number of trips for this SAP on a yearly basis. The suggested formula in FW 40B is as follows: Number of trips = (GB yellowtail flounder TAC - 4,000 mt)/4.54 mt.

Note that 4.54 mt is equivalent to the 10,000-lb (4,536-kg) trip limit established for this SAP. This formula assumes that approximately 4,000 mt of GB yellowtail flounder would be caught by vessels operating in the U.S./Canada Management Area, but outside of the CA II Yellowtail Flounder SAP, based on recent catches by all fisheries. FW 40B authorizes the Regional Administrator to not allow any trips into this SAP if the available GB yellowtail flounder catch (i.e., the GB yellowtail flounder TAC - 4,000 mt) is not sufficient to support 150 trips with a 15,000-lb (6,804-kg) GB yellowtail flounder trip limit. One hundred and fifty trips at 15,000 lb (6,804 kg) per trip amounts to 1,020 mt of GB yellowtail flounder recommended to support the CA II Yellowtail Flounder SAP. Based on the 4,260-mt TAC of GB yellowtail flounder specified in a recent proposed rule for the 2005 fishing year (April 14, 2005; 70 FR 19724), and using the formula specified in FW 40B, only 260 mt of GB yellowtail flounder are estimated to be available to allow for the CA II Yellowtail Flounder SAP in the 2005 fishing year.

Based on this information, the available 2005 GB yellowtail flounder catch is less than the minimum 1,020 mt recommended to support vessel operations in this SAP for the 2005 fishing year. The Regional Administrator consulted with the Council regarding determining the appropriate number of trips into the CA II Yellowtail Flounder SAP for the 2005 fishing year at its June 21-23, 2005, meeting, and is authorizing zero trips into the CA II Yellowtail Flounder SAP for the 2005 fishing year pursuant to § 648.85(b)(3)(vii).

Under NOAA Administrative Order 205-11, 07/01, dated December 17, 1990, the Undersecretary for Oceans and Atmosphere has delegated authority to sign material for publication in the Federal Register to the Assistant Administrator for Fisheries, NOAA.

This action is required by § 648.85(b)(3)(vii) and is exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(B) and (d)(3), the Assistant Administrator finds good cause to waive prior notice and opportunity for public comment, as well as the 30-day delayed effectiveness for this action, as notice and comment and delayed effectiveness would be impracticable and contrary to the public interest. NMFS cannot initiate rulemaking for actions implemented by a framework action until that action is approved and implemented through a final rule. NMFS did not receive the final FW 40B package until February 15, 2005. This delayed the review, approval, and implementation of FW 40B. The regulations implemented by FW 40B require the Regional Administrator to consult with the Council before announcing the maximum number of trips into the CA II Yellowtail Flounder SAP for a particular fishing year. Since the authority to modify the maximum number of trips into the SAP did not become effective until June 1, 2005, the first opportunity for the Regional Administrator to formally consult with the Council was at the Council's June 21-23, 2005, meeting. Because the delayed implementation of the measures included in FW 40B and the resulting late consultation with the Council, it would be impracticable for NMFS to pursue notice and comment rulemaking in time to specify the number of trips into the CA II Yellowtail Flounder SAP for the 2005 fishing year prior to the start of the SAP on July 1, 2005.

The public has had an opportunity to comment on the appropriate number of trips into the CA II Yellowtail Flounder SAP through the proposed rule for FW 40B. The proposed rule (March 29, 2005; 70 FR 15803) indicated that preliminary information suggested that there would be insufficient available catch of GB yellowtail flounder to support the CA II Yellowtail Flounder SAP for the 2005 fishing year. During the public comment period, several commenters expressed support for the actions taken through this temporary rule. NMFS received no comments in opposition to the action implemented by this rule during the public comment period for FW 40B.

Failure to waive the 30-day delayed effectiveness would allow the SAP to open on July 1, 2005, resulting in potentially high landings of GB yellowtail flounder until the SAP is closed again after the delayed effectiveness. Increased landings caused by the opening of the SAP on July 1 could contribute to the premature harvest of the GB Yellowtail Flounder TAC, resulting in the closure of access to the Eastern U.S./Canada Area prior to the end of the 2005 fishing year (i.e., before April 30, 2006) and a prohibition on the retention of GB yellowtail flounder in the entire U.S./Canada Management Area by limited access NE multispecies DAS vessels for the remainder of the 2005 fishing year. Such a premature closure and retention prohibition could cause unnecessary additional discards of GB yellowtail flounder, further increasing mortality and the potential that the fishery will exceed the yearly TAC. Exceeding the yearly TAC would result in any TAC overages being deducted from the available TAC allocated to the following fishing year, causing additional economic impacts for the following fishing year. A premature closure and retention prohibition would also decrease opportunities to fish for GB haddock and GB cod in the Eastern U.S./Canada Area, thereby reducing sources of potential vessel revenue and decreasing the chance that OY will be achieved in the fishery. Effort reductions implemented by Amendment 13 resulted in substantial adverse economic impacts to the groundfish fishery. Additional economic impacts resulting from a delayed effectiveness of the measures contained in this rule, taken cumulatively, represent further economic hardships to an already struggling industry. Finally, since this action specifies zero trips into this SAP for the 2005 fishing year, failure to implement this action by July 1, 2005, would result in the opening of the SAP on July 1, 2005, only to be closed again once this action becomes effective. This would cause confusion to the industry. Therefore, a delayed effectiveness would be contrary to the public interest because it could potentially: (1) Lead to additional discards and the associated additional mortality on GB yellowtail flounder (2) result in reduced sources of potential revenue, decreased economic returns, and further adverse economic impacts to the fishing industry; and (3) increase confusion in the fishing industry through rapid closure of the SAP. Therefore, given the likely impacts resulting from a delayed effectiveness of this action as described above, it would be contrary to the public interest to provide further notice and opportunity for public comment and a 30-day delayed effectiveness.