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 EMBRAER Model EMB-145 and EMB-135 series airplanes was published in the Federal Register on April 27, 2004 (69 FR 22743). That action proposed to require replacement of the engine-driven hydraulic pump.

The proposed AD refers to EMBRAER Service Bulletin 145-29-0018, Revision 03, dated December 2, 2003, as the appropriate source of service information for replacing the engine-driven hydraulic pump for Model EMB-145 and EMB-135 series airplanes. Since the issuance of that service bulletin, Embraer has issued Revision 04, dated March 16, 2005. Revision 04 of the service bulletin is essentially the same as Revision 03, but it removes a certain airplane from the in-service effectivity and adds two airplanes to the in-production effectivity. We have changed paragraph (a)(1) of this AD to refer to Revision 04 of the service bulletin as the appropriate source of service information for Model EMB-145 and EMB-135 series airplanes, and revised the applicability to refer to Revision 04 for those airplanes. In addition, we have added Revision 03 of the service bulletin to paragraph (d) of this AD to give credit for previously accomplishing the actions in accordance with that revision.

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

The commenter, the airplane manufacturer, asks that we clarify the statement of the unsafe condition as specified in the proposed AD. The commenter suggests we add the word “engine” in front of the term “oil leakage” for clarification. We agree and have added the word “engine” to clarify the statement of the unsafe condition in the AD.

The commenter also asks that the compliance time of “as of the effective date of this AD” specified in paragraph (c) of the proposed AD be extended. The commenter states that it does not concur with accepting only the new part number (P/N) for installation as of the effective date of the AD. The commenter notes that this compliance time is not consistent with the period of 1,000 flight hours defined for hydraulic pump replacement, and may affect operators that may not have enough time to modify their spare parts. The commenter suggests the adoption of a period similar to the Brazilian airworthiness directive referenced in the proposed AD, which provides a compliance time of approximately two months for stock upgrade. The commenter proposes the following compliance time: “No later than 31 March 2004, modify all hydraulic pumps P/N 971808 held in stock, to the new P/N 971808 MOD A—Brazilian airworthiness directive date: 29 January 2004.”

We do not agree. We have determined that the compliance time specified in the AD will ensure an acceptable level of safety and allow the replacement to be done with no airplane out-of-service time during scheduled maintenance intervals for most affected operators. In developing the technical information on which every AD is based, we consider the availability of spare parts that the AD will require to be installed. We have not changed the AD in this regard.

In Table 1 of the proposed AD we referenced an incorrect number for EMBRAER Service Bulletin 145LEG-29-0001. We inadvertently referenced 145LEG-31-0001 instead of 145LEG-29-0001. We have corrected the error in this final rule.

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 described previously. These changes will neither increase the economic burden on any operator nor increase the scope of the AD.

The FAA estimates that 548 airplanes of U.S. registry will be affected by this AD, that it will take approximately 4 work hours per airplane to accomplish the actions, and that the average labor rate is $65 per work hour. The manufacturer will provide replacement parts at no cost. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $142,480, or $260 per airplane.

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

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

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

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

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

The FAA proposed to amend 14 CFR part 39 with an AD for certain Airbus Model A300 B2-203 and B4-203 airplanes; Model A310-200 and -300 series airplanes; and Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model C4-605R Variant F airplanes (collectively called A300-600 series airplanes). That action, published in the Federal Register on March 3, 2005 (70 FR 10339), proposed to require an inspection to determine if suspect part numbers (P/Ns) and serial numbers of certain Thales Avionics equipment are installed, and replacement of any suspect part with a modified part having a new P/N.

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

One commenter, the airplane manufacturer, notes that French airworthiness directive F-2004-037, issued March 17, 2004, which also addresses the subject of the proposed AD, applies to Airbus Model A300 B4-220 airplanes, as well as the other airplane models identified in the proposed AD. The commenter points out that the proposed AD does not mention Airbus Model A300 B4-220 airplanes.

We agree with the commenter's statements, but find that we do not need to change the AD in this regard. Airbus Model A300 B4-220 airplanes are not listed on the U.S. type certificate data sheet; thus, we do not need to issue an AD against those airplanes.

We have revised the applicability of this AD to identify model designations as published in the most recent type certificate data sheet for the affected models.

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

This AD will affect about 158 Model A310-200 and -300 series airplanes, and Mode A300-600 series airplanes of U.S. registry. The required inspection will take about 1 work hour per airplane, at an average labor rate of $65 per work hour. Based on these figures, the estimated cost of this AD for these U.S. operators is $10,270, or $65 per airplane.

Currently, there are no affected Model A300 B2-203 and B4-203 airplanes on the U.S. Register. However, if an affected airplane is imported and placed on the U.S. Register in the future, the required actions will take about 1 work hour, at an average labor rate of $65 per work hour. Based on these figures, we estimate the cost of this AD for Model A300 B2-203 and B4-203 series airplanes to be $65 per airplane.

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

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

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

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

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

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

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

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

The FAA proposed to amend 14 CFR part 39 with an AD for certain Boeing Model 777-200 and -300 series airplanes. That action, published in the Federal Register on December 7, 2004 (69 FR 70574), proposed to require applying an anti-static conductive coating to the fuel access and thermal anti-icing blowout doors at the location of the bonding fasteners on the leading edge of the wings, and performing a resistance test on the new coating to ensure correct ground path resistance.

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, the manufacturer, supports the proposed AD.

One commenter concurs with the AD. However, the commenter states that Boeing Special Attention Service Bulletin 777-57-0046, dated September 25, 2003, which is referenced in the proposed AD as the appropriate source of service information, specifies an action to maintain a certain coating thickness that is impractical to perform. The commenter states that Note (b) of Figures 1 and 2 in the Accomplishment Instructions of the service bulletin specifies that the conductive coating be applied at a thickness of 0.0004 to 0.0008 inch. The commenter states that there is no practical method to measure the thickness and that they have confirmation from the manufacturer that the intent of Note (b) is to ensure that the coating application is continuous. The commenter also notes that the manufacturer plans to delete the thickness dimension and revise the wording in Note (b) in the next revision of the service bulletin.

We agree with the commenter that the intent of Note (b) of the service bulletin is to ensure a continuous coating and that the measured thickness is not relevant. Although Note (b) specifies maintaining the thickness of the applied conductive coating between 0.0004 and 0.0008 inch, we have revised paragraph (f) of this AD to clarify the manufacturer's intent: to apply a uniform coating to avoid runs, sags, or wrinkles, and to ensure the anti-static coating touches the anti-static coating exposed during surface preparation.

We have coordinated this difference with the manufacturer. The manufacturer has informed us that a revision of the service bulletin that contains a revised Note (b) is planned for release. Once the revision has been issued, under the provisions of paragraph (g) of this AD, affected operators may request approval to use the later revision of the referenced service bulletin as an alternative method of compliance.

One commenter requests that the compliance time be reduced. The commenter suggests that the simplicity and low cost of the task would allow airlines to perform the task sooner.

We do not agree with the request to shorten the compliance time. After considering all the available information, including the fact that there have been no reports of in-service arcing or sparking as a result of the missing anti-static coating, we determined that the compliance time, as proposed, represents an appropriate interval in which the anti-static coating can be applied in a timely manner within the fleet, while still maintaining an adequate level of safety. In developing the compliance time for this AD action, we considered not only the safety implications of the identified unsafe condition, but the average utilization rate of the affected fleet, the practical aspects of an orderly modification of the fleet during regular maintenance periods, the availability of required parts, and the time necessary for the rulemaking. However, if additional data are presented that would justify a shorter compliance time, we may consider further rulemaking on this issue. Operators are always permitted to accomplish the requirements of an AD at a time earlier than the specified compliance time.

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

This AD will affect about 65 airplanes worldwide and 18 airplanes of U.S. registry. The actions will take about 5 work hours per airplane, at an average labor rate of $65 per work hour. Based on these figures, the estimated cost of this AD for U.S. operators is $5,850, or $325 per airplane.

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

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

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

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

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

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

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

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

1. The Commission is issuing this Policy Statement to provide clarity and remove barriers to the formation of independent transmission companies. Specifically, the Policy Statement clarifies that the Commission would be willing to accept proposals from independent transmission companies (ITCs) which have market participants as passive minority equity owners. On various occasions, the Commission has allowed innovative rate treatments both to facilitate the creation of ITCs and to stimulate investment in transmission infrastructure by ITCs. 1

On March 21, 2000, the National Park Service published a regulation on the management of PWC use within all units of the national park system (65 FR 15077). This regulation prohibits PWC use in all national park units unless the NPS determines that this type of waterbased recreational activity is appropriate for the specific park unit based on the legislation establishing that park, the park's resources and values, other visitor uses of the area, and overall management objectives. The regulation banned PWC use in all park units effective April 20, 2000, except 21 parks, lakeshores, seashores, and recreation areas. The regulation established a 2-year grace period following the final rule publication to provide these 21 park units time to consider whether PWC use should be allowed.

Fire Island National Seashore is a vital part of America's national system of parks, monuments, battlefields, recreation areas, and other natural and cultural resources. Located on a 32-mile long barrier island off the south shore of Long Island, New York, Fire Island National Seashore encompasses approximately 19,500 acres—many of which are bay and ocean waters—available to more than 4 million visitors each year. The National Seashore is interspersed with 17 local private communities, the William Floyd Estate, a maritime forest known as the Sunken Forest, and the Otis Pike Wilderness Area—the only Federal wilderness area in New York State. Together, these components comprise a seashore ecosystem of wildlife, private communities, and outdoor recreational activities, such as the use of personal watercraft (PWC).

The Fire Island National Seashore extends from the easterly boundary of the main unit of Robert Moses State Park eastward to Moriches Inlet and includes Fire Island proper and the surrounding islands and marshlands in the Great South Bay, Bellport Bay, and Moriches Bay adjacent to Fire Island. Included in the boundaries are Sexton Island, West Fire and East Fire Islands, Hollins Island, Ridge Island, Pelican Island, Pattersquash Island, and Reeves Island and other small and adjacent islands, marshlands, and wetlands that lend themselves to contiguity and reasonable administration within the National Seashore and the waters surrounding the National Seashore to distances of 1,000 feet in the Atlantic Ocean and up to 4,000 feet in Great South Bay and Moriches Bay. The NPS mainland terminal and headquarters are on the Patchogue River within Suffolk County, New York.

Fire Island National Seashore is fragmented by public and private beaches. Fire Island National Seashore includes the Otis Pike Wilderness Area established in 1981, the Sunken Forest, Watch Hill, Sailors Haven, the Fire Island Lighthouse (placed on the National Register of Historic Places in 1981), and the William Floyd Estate (placed on the National Register of Historic Places in 1980).

The resources and values that define the natural environment of Fire Island National Seashore include a diverse assemblage of wildlife, vegetation communities, water resources, geological features, and physical processes reflecting the complexity of the land/sea interface along the North Atlantic coast. Wildlife resources are a myriad of aquatic and terrestrial species inhabiting estuarine, dune and beach habitats. The indigenous plant communities reflect the adaptive extremes necessary for survival on a barrier island, where exposure to salt spray, lack of freshwater, and shifting sands create a harsh and dynamic environment.

The aquatic habitats of Fire Island and the adjacent coastal bays are central to the significance of the National Seashore. The inshore waters are part of a network of coastal lagoons that parallel the south shore of the Long Island coast from Breezy Point, off the tip of southern Manhattan, over 100 miles east to South Hampton. Fire Island lies in the middle of this complex system. The bays are uniformly shallow with an average depth of 1.2 meters (4 feet) and are generally characterized as poorly flushing due to restricted inlet tidal exchange.

From a regional perspective, Fire Island National Seashore includes the highest percentage of remaining undeveloped barrier islands of the south shore of the Long Island barrier island system. Extensive salt marshes, intertidal flats, and the broad shallow margins of the coastal bays within and adjacent to Fire Island are key components of an estuarine system crucial to the maintenance of regional biological diversity and ecosystem health.

Fire Island National Seashore provides important habitat for a number of federally listed threatened and endangered species, including but not limited to the peregrine falcon, roseate tern, loggerhead, Kemp's ridley, leatherback, hawksbill, and green sea turtles, bald eagle, piping plover, and sea beach amaranth. Of these species, the National Seashore provides critical habitat for piping plover and sea beach amaranth and is a focal point for North Atlantic conservation and restoration efforts. The eastern 8 miles of the park provide the most favorable conditions for piping plover breeding activity and support a majority of the local population of the species.

In addition to the piping plover, the National Seashore provides important habitat for a multitude of bird species throughout the year. The island is renowned for the autumn migration of hawks and abundance of wintering waterfowl and is of critical importance as wintering, staging, and breeding habitat for a myriad of bird species. Shorebirds, colonial waterbirds, neotropical migratory songbirds, and a variety of wading birds intensively utilize park habitats, and in general, occur in greater abundance and diversity than on the adjacent mainland.

The coastal waters within Fire Island National Seashore are regularly used by a variety of marine mammals on a seasonal or transitory basis. More than fifteen species have been documented in the National Seashore, all of which are protected under the Marine Mammal Protection Act of 1972. The most commonly observed species are seals, harbor porpoise, and bottlenose dolphin, generally occurring in ocean nearshore waters. Seals are most commonly observed during the fall and winter months, while bottlenose dolphins are present largely during the summer.

Oceanic and estuarine waters and their associated animal and plant life (biota) also play a dominant role in recreational use of the National Seashore. Over 90 percent of visits to the park involve the use of aquatic habitats. The primary recreational activities include swimming, walking, sightseeing, wildlife photography and observation, picnicking, and saltwater fishing.

Fire Island National Seashore was authorized on September 11, 1964 (Pub. L. 88-587) “for the purpose of conserving and preserving for the use of future generations certain relatively unspoiled and undeveloped beaches, dunes, and other natural features within Suffolk County, New York, which possess high values to the Nation as examples of unspoiled areas of great natural beauty * * * to establish an area to be known as the ‘Fire Island National Seashore.’ ”

The purposes of Fire Island National Seashore, as stated in its Strategic Plan (available at http://www.nps.gov/fiis/ stratplanFY01-05.htm ), are as follows:

• Preserve the natural and cultural resources within administrative boundaries.

• Permit hunting, fishing, and shellfishing within boundaries in accordance with U.S. and New York State laws.

• Preserve the Sunken Forest tract from bay to ocean without developing roads therein.

• Preserve the main dwelling, furnishings, grounds, and outbuildings of the William Floyd Estate, home of the Floyd family for eight generations.

• Administer mainland ferry terminal and headquarters sites not to exceed 12 acres on the Patchogue River.

• Preserve the Otis Pike Fire Island High Dunes Wilderness.

• Provide for public access, use, and enjoyment.

• Work with the communities within the park to mutually achieve the goals of both the park and the residents.

The National Park Service is granted broad authority under 16 U.S.C. 1 et seq. , the NPS’ “Organic Act,” to regulate the use of the Federal areas known as national parks. In addition, the Organic Act (16 U.S.C. 3) authorizes the NPS, through the Secretary of the Interior, to “make and publish such rules and regulations as he may deem necessary or proper for the use and management of the parks * * *”

16 U.S.C. 1a-1 states, “The authorization of activities shall be conducted in light of the high public value and integrity of the National Park System and shall not be exercised in derogation of the values and purposes for which these various areas have been established * * *”

The NPS's regulatory authority over waters subject to the jurisdiction of the United States, including navigable waters and areas within their ordinary reach, is based upon the Property and Commerce Clauses of the U.S. Constitution. In regard to the NPS, Congress in 1976 directed the NPS to “promulgate and enforce regulations concerning boating and other activities on or relating to waters within areas of the National Park System, including waters subject to the jurisdiction of the United States * * *” (16 U.S.C. 1a-2(h)). In 1996 the NPS published a final rule (61 FR 35136, July 5, 1996) amending 36 CFR 1.2(a)(3) to clarify its authority to regulate activities within the National Park System boundaries occurring on waters subject to the jurisdiction of the United States.

PWC use at Fire Island National Seashore is a relatively recent phenomenon, paralleling the national trend of increasing popularity and sales of PWC during the 1980s and 1990s.

Personal watercraft use began within the Fire Island National Seashore boundaries in the Great South Bay over 20 years ago, as soon as they were available and on the market. PWC users can access Fire Island National Seashore in a variety of ways; however, there are no public boat ramps or public roads located within the National Seashore boundaries. PWC users access the National Seashore via marinas located in the private communities and by landing on and launching from undeveloped beaches or larger vessels.

A variety of sources within the region provided estimates of typical PWC use in the Great South Bay and Fire Island National Seashore area. Staff from the Suffolk County Department of Parks and the Police Marine Bureau, local municipalities, local dealerships, and local marinas provided estimates of PWC use ranging from 5 to 25% of all watercraft on the water at any given time of the day during peak season. Although no annual counts are conducted of visitors accessing the park by boat or personal watercraft, the National Park Service conducted an informal survey on Saturdays and Sundays during the month of July 1999. During this survey, NPS staff counted the number of boats, including PWC, that were present. Based on the 1999 survey, the estimated number of boats during that time period was between 200 and 300 watercraft. Approximately 20% of the total, or between 40 and 60 watercraft, were PWC. The waterways on the bayside of Fire Island are often congested, with a variety of recreational and fishing boats accessing the waters of the National Seashore from the Great South Bay.

PWC use is typically localized within Fire Island National Seashore, occurring in areas near the private communities, ferryways and navigation channels, and in areas near boat ramps. Park staff indicate that the heaviest usage and highest general visitation area for watercraft of any type is the western end of the island. PWC use is also prevalent along the eastern boundary in Moriches Bay near Smith Point County Park.

As previously stated, on April 20, 2000, the NPS adopted a final rule for managing PWC use in areas of the National Park System. The rule was implemented to ensure a prudent approach to PWC management that would potentially allow their use, yet protect park resources, sensitive natural areas, plants and wildlife, and reduce conflicts between park visitors. The final rule prohibited PWC use in all National Park System areas unless the NPS determined that this type of waterbased activity was appropriate for a specific park based upon the legislation establishing the area, the park's resources and values, other visitor uses of the area, and overall management objectives.

Prior to April 22, 2002, PWC use was allowed throughout Fire Island National Seashore. On April 22, 2002 all of the waters within the National Seashore were closed to PWC use consistent with the 2000 NPS PWC rule (36 CFR 3.24).

On August 23, 2004, the National Park Service published a Notice of Proposed Rulemaking (NPRM) for the operation of PWC at Fire Island National Seashore (69 FR 51788). The proposed rule for PWC use was based on alternative C (one of four alternatives considered) in the Environmental Assessment (EA) prepared by NPS for Fire Island National Seashore. The EA was available for public review and comment from September 3, 2002, through November 11, 2002, and the NPRM was available for public comment from August 23, 2004, through October 22, 2004.

The purpose of the EA was to evaluate a range of alternatives and strategies for the management of PWC use at Fire Island National Seashore to ensure the protection of park resources and values while offering recreational opportunities as provided for in the National Seashore's enabling legislation, purpose, mission, and goals. In March 2004 an errata was issued. The changes to the EA described in the errata were made to modify the preferred alternative and its analysis, to address public comments on the draft EA, and to clarify the text.

The four alternatives considered included three alternatives to continue PWC use under certain conditions: Alternative A would establish, through regulation, the PWC policies that existed prior to 2000 when PWC use was permitted throughout Fire Island National Seashore; alternative B would limit PWC use to areas adjacent to beach communities; and modified alternative C would continue to allow PWC access to the national seashore with additional management and geographic restrictions. The additional geographic restrictions west of Sunken Forest would include a 1,000 foot buffer around all shorelines, with access to beach communities only through established access channels and ferryways. East of the western boundary of Sunken Forest PWC use would be forbidden in Seashore waters, except for access to beach communities only through established access channels and ferryways. In addition, a no-action alternative was considered that would discontinue all PWC use within the National Seashore. The four alternatives were evaluated with respect to PWC impacts on water quality, air quality, soundscapes, wildlife, wildlife habitat, shoreline vegetation, visitor conflicts, and visitor safety.

Based on the analysis NPS determined that modified alternative C is the environmentally preferred alternative. (For the remainder of this document “alternative C” refers to modified alternative C.) Alternative C best fulfills NPS responsibilities as trustee of Fire Island National Seashore's sensitive habitat; ensuring safe, healthful, productive, and aesthetically and culturally pleasing surroundings; and attaining a wider range of beneficial uses of the environment without degradation, risk of health or safety, or other undesirable and unintended consequences. Alternative C is the preferred alternative for fulfilling the park's environmental mission without restricting valid and lawful use. This final rule contains regulations to implement alternative C at Fire Island National Seashore.

A proposed rule was published for public comment on August 23, 2004, with the comment period lasting until October 22, 2004. The National Park Service received 528 timely written responses regarding the proposed regulation. Of the responses, 527 were signatures on a petition supporting the no action alternative and one was from an individual opposing PWC use in national parks. The National Park Service received approximately 4,600 comment letters regarding the EA. More than 1,300 were in support of continuing PWC use as currently managed and approximately 740 supported the no action alternative, or the complete ban of PWC within Fire Island National Seashore. Approximately 1,600 comments opposed the preferred alternative as originally proposed, prompting the development of the modified alternative C. While the proposed rule reflected changes to alternative C made as a result of comments on the EA, the NPRM did not describe or discuss responses to those comments. Therefore, this preamble addresses those comments. Within the following discussion, the term “commenter” refers to an individual, organization, or public agency that responded. The term “comments” refers to statements made by a commenter.

1. Several commenters stated that PWC should not be singled out for analysis and restriction.

NPS Response: The EA was not designed to determine if personal watercraft caused more environmental damage to park resources than other boats, but rather, to determine if personal watercraft use was consistent with the park's enabling legislation and management goals and objectives.

2. One commenter stated that allowing PWC use violates the park's enabling legislation and NPS mandate to protect resources from harm.

NPS Response: No part of the settlement agreement or NPS analysis of PWC use has violated or overturned Fire Island National Seashore's enabling legislation. Both the personal watercraft settlement agreement and the authorizing legislation for Fire Island were considered when developing alternatives for the EA. The objective of the EA, as described in the “Purpose and Need” chapter, was derived from the enabling legislation for the national seashore. As further stated in that chapter, a special analysis on the management of personal watercraft was also provided under each alternative to meet the terms of the settlement agreement between the Bluewater Network and the National Park Service. As a result, the alternatives presented in the EA protect resources and values while providing recreational opportunities at Fire Island National Seashore. As required by NPS policies, the impacts associated with personal watercraft and other recreational uses are evaluated under each alternative to determine the potential for impairment to park resources. Alternative C would not result in impairment of park resources and values for which the national seashore was established.

The seashore's mission statement grows from the park's legislative mandate and is a synthesis of the park's mandated purpose and its primary significances. It includes a commitment “to providing access and recreational and education opportunities to Fire Island National Seashore visitors in this natural and cultural setting close to densely populated urban and suburban areas.”

3. One commenter states that the EA does not use the best available data and violates the court settlement with the Bluewater Network.

NPS Response: A summary of the NPS rulemaking and associated personal watercraft litigation is provided in Chapter 1, Purpose of and Need for Action, Background of the EA. NPS believes it has complied with the court order and has assessed the impacts of personal watercraft on those resources specified, as well as other resources that could be affected. This analysis was done for every applicable impact topic with the best available data, as required by Council on Environmental Quality Regulations (40 CFR 1502.22). Where data was lacking, best professional judgment prevailed using assumptions and extrapolations from scientific literature, other park units where personal watercraft are used, and personal observations of park staff. The NPS believes that the EA is in full compliance with the settlement agreement and that the rationale for limited PWC use within the national recreation area has been adequately analyzed and explained.

4. One commenter is concerned about the use of Federal Aid in Sport Fish Restoration Act (FASFRA) funds to construct boat launches and facilities.

NPS Response: There are no provisions within the proposed alternative for boat launches and facilities. Landing zones are designated by the NPS for access only by PWC users. No FASFRA funds are used within the national recreation area to construct boat launches.

5. Several commenters stated that the decision violates the Organic Act, and other NPS laws, and will result in the impairment of resources.

NPS Response: The “Summary of Laws and Policies” section in the “Environmental Consequences” chapter of the EA summarizes the three overarching laws that guide the National Park Service in making decisions concerning protection of park resources. These laws, as well as others, are also reflected in the NPS Management Policies. An explanation of how the Park Service applied these laws and policies to analyze the effects of personal watercraft on Fire Island National Seashore resources and values can be found under “Impairment Analysis” in the “Methodology” section of the EA.

An impairment to a particular park resource or park value must rise to the magnitude of a major impact, as defined by its context, duration, and intensity and must also affect the ability of the National Park Service to meet its mandates as established by Congress in the park's enabling legislation. For each resource topic, the EA establishes thresholds or indicators of magnitude of impact. An impact approaching a “major” level of intensity is one indication that impairment could result. For each impact topic, when the intensity approached “major,” the park would consider mitigation measures to reduce the potential for “major” impacts, thus reducing the potential for impairment.

The PWC Use Environmental Assessment is a proactive measure to protect national seashore resources from harm. The purpose of the EA is to assess the impacts of PWC use on identified resources within the seashore boundaries. The National Park Service finds that the revised preferred alternative (alternative C), when implemented under this final rule, will not result in an impairment of park resources and values for which the Fire Island National Seashore was established.

6. Approximately 36 percent of all EA comments on the alternatives addressed alternative A. The 1,320 comments received regarding alternative A included one petition with 1,228 respondents and one petition with four respondents in support of Alternative A. Less than one percent of all EA comments on the alternatives addressed alternative B. Approximately 44 percent of all EA comments on the alternatives concerned Alternative C. Comments included a petition with 73 respondents that opposed Alternative C. Many comments questioned the enforceability of a buffer and suggested a ban would be more effective. Approximately 20 percent of all EA comments on the alternative were in favor of the no-action alternative. Three petitions in favor of this alternative were received including 44 respondents from the Bluewater Network, 297 respondents from an unknown source, and 66 respondents from another unknown petition. The majority of comments received for the no-action alternative were in support of a complete ban on PWC. All 528 comments received on the proposed rule were in favor of the no-action alternative.

Several commenters stated that the area restrictions in the preferred alternative seem arbitrary and difficult to enforce.

NPS Response: Alternative C, the preferred alternative, was revised before issuance of the NPRM to address the public comments received on the EA. The revised alternative C, as adopted in this final rule, will continue to allow PWC in the areas adjacent for access to the national seashore with additional management and geographic restrictions. PWC will be allowed to operate in Great South Bay from the western boundary of the national seashore adjacent to Robert Moses State Park, east to the western boundary of the Sunken Forest, excluding any area within 1,000 feet of the shoreline including East Fire Island and West Fire Island; navigation channels marked by buoys or identified on the NOAA navigational chart (12352) to include access channels to and from Fair Harbor, Dunewood, Lonelyville, Atlantique, Cherry Grove, Fire Island Pines, Davis Park, Great Gun Beach, Moriches Inlet, and to the communities of Kismet, Saltaire, Ocean Beach, Ocean Bay Park, Point O'Woods, Oakleyville, and Water Island at “flat wake speed'; and the Long Island Intracoastal Waterway within the park boundaries.

PWC will be prohibited from operation in all waters from the shoreline to 1,000 feet offshore between the west boundary of Moriches Inlet to the east boundary of Robert Moses State Park on the Atlantic Ocean side of the national seashore.

Alternative C, as implemented in this final rule, allows for access throughout the park in designated channels and ferryways; thus, maintaining an equilibrium between visitor use and the protection of resources.

7. One commenter stated that the analysis disregarded or overlooked relevant research regarding impacts to water quality from PWC use.

NPS Response: The protection of water quality within the national seashore has been addressed in the EA in a conservative evaluation of surface water quality impacts. Estimated minimum threshold volumes of water were determined for the PWC use areas where concentrations of gasoline constituents discharged from personal watercraft and other outboard engines could potentially be toxic to aquatic organisms or humans. Using the estimated threshold volumes, volumes of the areas being evaluated, PWC and other motorboat high-use-day loadings of chemicals identified as constituents of gasoline, and water quality benchmarks, it is possible to identify potentially unacceptable impacts to human health or the environment. Chronic water quality benchmarks protective of aquatic populations and protective of human health were acquired from various sources, including U.S. EPA water quality criteria. Potential impacts to wildlife and plants from personal watercraft were addressed in other sections of the EA.

The evaluation of water quality impacts examined impacts from PWCs alone and in combination with other outboard motorboats. Impacts are estimated to range from “negligible” to “major” for the various combinations of alternatives, chemicals, PWCs and/or boats, and years (2002 and 2012). The descriptions for each level of water quality impacts are provided on page 95 of the EA. There is no conclusion in the EA that PWC would have “little impact” on water quality in Fire Island National Seashore as described in the comment. Further, it is not conjectured that “all petroleum compounds evaporate into the atmosphere.”

8. One commenter stated that the analysis represents an outdated look at potential emissions from an overstated PWC population of conventional 2-stroke engines, and underestimated the accelerating changeover to 4-stroke and newer 2-stroke engines. The net effect is that the analysis overestimates potential PWC hydrocarbon emissions, including benzene and polyaromatic hydrocarbons (PAHs).

NPS Response: The NPS recognizes that the assumption of all personal watercraft using 2-stroke engines in 2002 is conservative but believes it was appropriate to be protective of park resources. The assumption is consistent with emission data available in California Air Resources Board (CARB) (1998) and Bluewater Network (2001). The emission rate of 3 gallons per hour at full throttle is a mid-point between 3 gallons in two hours (1.5 gallons per hour; NPS 1999) and 3.8 to 4.5 gallons per hour for an average 2000 model year personal watercraft (Personal Watercraft and Bluewater Network 2001). The assumption also is reasonable in view of the initiation of production line testing in 2000 (EPA 1997) and expected full implementation of testing by 2006 (EPA 1996).

Reductions in emissions used in the water quality impact assessment are in accordance with the overall hydrocarbon emission reduction projections published by the EPA (1996). EPA (1996) estimates a 52% reduction by personal watercraft by 2010 and a 68% reduction by 2015. The 50% reduction in emissions by 2012 (the future date used in the EA) is a conservative interpolation of the emission reduction percentages and associated years (2010 and 2015) reported by the EPA (1996) but with a one-year delay in production line testing (EPA 1997).

The estimate of 2.8 mg/kg for benzo(a)pyrene in gasoline used in the calculations is considered conservative, yet realistic, since it is within the range of concentrations measured in gasoline, according to Gustafson et al. (1997).

9. One commenter stated that the analysis failed to mention the impact of PWC permeation losses on local air quality.

NPS Response: Permeation losses of volatile organic compounds (VOCs) from personal watercraft were not included in the calculation of air quality impacts primarily because these losses are insignificant relative to emissions from operating personal watercraft. Using the permeation loss numbers in the comment (estimated to be half the total of 7 grams of losses per 24 hours from the fuel system), the permeation losses per hour are orders of magnitude less than emissions from operating personal watercraft. Therefore, including permeation losses would have no effect on the results of the air quality impact analyses. Also, permeation losses were not included because of numerous related unknown contributing factors, such as the number of personal watercraft refueling at the reservoir and the location of refueling (inside or outside of the airshed).

10. One commenter stated that the use of the study by Kado et al to suggest that the changeover from two-stroke carbureted to two-stroke direct injection engines may increase emissions of PAH is in error.

NPS Response: The criteria for analysis of impacts from PWC to human health are based on the National Ambient Air Quality Standards (NAAQSs) for criteria pollutants, as established by the U.S. Environmental Protection Agency (EPA) under the Clean Air Act, and on criteria pollutant annual emission levels. This methodology was selected to assess air quality impacts for all NPS EAs to promote regional and national consistency, and identify areas of potential ambient standard exceedances. PAHs are not assessed specifically as they are not a criteria pollutant. However, they are indirectly included as a subset of Total Hydrocarbons (THC), which are assessed because they are the focus of the EPA's emissions standards directed at manufacturers of spark ignition marine gasoline engines (see 61 FR 52088; October 4, 1996). Neither peak exposure levels nor NIOSH nor OSHA standards are included as criteria for analyzing air quality related impacts except where short-term exposure is included in a NAAQS. The methodology for assessing air quality impacts was based on a combination of annual emission levels and the NAAQSs, which are aimed at protection of the public. OSHA and NIOSH standards are intended primarily for workers and others exposed to airborne chemicals for specific time periods. The OSHA and NIOSH standards are not as suitable for application in the context of local and regional analysis of a park or recreational area as are the ambient standards, nor are they intended to protect the general public from exposure to pollutants in ambient air.

11. One commenter expressed concern on the use of SUM06 data and requested a more detailed analysis of the air quality impacts associated with opening corridors to PWC use because the alternatives considered in the EA, other than the no action alternative, do not comply with General Conformity Regulations.

NPS Response: To assess the impact of ozone on plants, the 5-year ozone index value was calculated and is represented as SUM06. The Air Resources Division of the National Park Service, based on local monitoring site data, developed SUM06 values used in each analysis.

The air quality impacts of the various alternatives were assessed by considering the existing air quality levels and the air quality related values present, and by using the estimated emissions and any applicable, EPA-approved air quality models. Cumulative impacts were analyzed quantitatively for all recreational watercraft. Fire Island National Seashore maintains vehicular access to the park for cars, trucks, and recreational vehicles; emissions from these vehicles and other local and regional sources of air pollutants were not assessed quantitatively but were considered qualitatively in the cumulative impact assessment.

Located within the ozone non-attainment area, the proposed actions are subject to the requirements and emission threshold set by the Federal conformity rules (40 CFR part 93), in which the emission threshold set for ozone precursor pollutants—nitrogen oxides (NO X ) or volatile organic compounds (VOC)—is 25 tons/year. All ambient air quality levels except ozone meet the national ambient air quality standards.

The Fire Island National Seashore area, located in Suffolk County, New York, is designated by the U.S. Environmental Protection Agency as in severe nonattainment for ozone, and as in attainment for all other criteria pollutants (CO, NO X , SO 2 , PM 10 , and lead). The Division of Air Resources within the New York State Department of Environmental Conservation has included control measures and has accounted for limited growth related to ozone precursor sources, such as nonroad marine engines, in the State Implementation Plan. The Division of Air Resources predicts that Suffolk County will attain the national air quality standard for ozone by 2007 (allowances for emissions of these pollutants are documented in appendix N of the State Implementation Plan). The proposed action and alternatives are subject to Federal conformity review but are not predicted to add pollutants not already included in the State plan; therefore, the proposed action and alternatives are presumed to conform with the State plan, and a conformity determination is not required (40 CFR 93.158).

12. Several commenters stated that research indicated that direct-injection 2-stroke engines are dirtier than 4-stroke engines.

NPS Response: It is agreed that two-stroke carbureted and two-stroke DI engines generally emit greater amounts of pollutants than four-stroke engines. Only 4 of the 20 PAHs included in the analyses were detected in water: naphthalene, 2-methylnaphthalene, fluorene, and acenaphthylene. Some pollutants (benzene, toluene, ethylbenzene, and xylene, collectively referred to as BTEX, and formaldehyde) were reported by CARB in the test tanks after 24 hours at approximately 50% the concentrations seen immediately following the test. No results for PAH concentrations after 24 hours were seen in the CARB (2001) results, but a discussion of sampling/analyses of PAHs in the six environmental compartments was presented.

EPA NONROAD model factors differ from those of CARB. As a result of the EPA rule requiring the manufacturing of cleaner PWC engines, the existing carbureted 2-stroke PWC will, over time, be replaced with PWC with less-polluting models. This replacement, with the anticipated resultant improvement in air quality, is parallel to that experienced in urban environments as the automobile fleet becomes cleaner over time.

13. One commenter stated that the EA erroneously assumes that none of the PWC operating in Fire Island National Seashore would meet the CARB standards. The quantitative emissions analysis performed by Sierra Research also refutes the EA's use of the term “major” to describe current impact of ozone precursors emitted by PWC.

NPS Response: The NPS emissions calculations are conservative only in the sense that they do not specifically account for watercraft that have already been or will be converted to meet CARB standards. Any reductions in emissions resulting from implementing control strategies were taken into account, as were changes in emissions resulting from increased or decreased usage. In addition, located within the ozone non-attainment area, the proposed actions are subject to the requirements and emission threshold set by the Federal conformity rules (40 CFR part 93), in which the emission threshold set for ozone precursor pollutants—nitrogen oxides (NO X ) or volatile organic compounds (VOC)—is 25 tons/year. All ambient air quality levels except ozone meet the national ambient air quality standards.

14. One commenter stated that continued PWC use at Fire Island National Seashore will not result in sound emissions that exceed the applicable Federal or State noise abatement standards since technological innovations by the PWC companies will continue to result in substantial noise reductions.

NPS Response: The NPS concurs that on-going and future improvements in engine technology and design would likely further reduce the noise emitted from PWC. However, given that the ambient noise levels at the national seashore are negligible to minor in most cases, improved technology reductions would not significantly reduce ambient noise levels.

15. One commenter stated that the NPS methodology was unclear and should clarify between decibels and A-weighting.

NPS Response: The impacts for the EA were weighed in decibels.

16. One commenter stated that the EA fails to recognize seashore visitor's desires to hear natural sounds.

NPS Response: The EA considered the cumulative impact of PWC and other watercraft, while qualitatively considering ambient noise levels; which could include airplanes, etc. While specific background noise studies are not available at Fire Island National Seashore, certain conditions have been taken into account given the number of PWC users in the identified study areas and land use patterns surrounding those areas. For example, it is assumed that the soundscape throughout the majority of area I is that of an active suburban area, while area II is an area of day use, and area III is more characteristic of a quiet rural town with associated tourism.

17. One commenter stated that the analysis did not include Drowning in Noise: Noise Costs of PWC in America and therefore the noise analysis under represents the actual impacts.

NPS Response: One of the initial tasks in developing the Fire Island National Seashore EA was a literature search. Drowning in Noise: Noise Costs of Jet Skis in America was one of the many studies reviewed. The reference to that study (Komanoff and Shaw 2000) was discussed in the “Summary of Available Research on the Effects of Personal Watercraft” section of the EA.

18. One commenter stated that there has been no documentation of any adverse effects to shoreline vegetation from PWC use.

NPS Response: We agree there has been no current adverse impact to shoreline vegetation. The analysis recognizes that PWC use to date has resulted in only negligible adverse impacts to this vegetation, mostly from PWC operators leaving their vessels and trampling vegetation. The regulation creates a 1000′ no PWC use zone from the shoreline to protect shoreline and wetlands vegetation.

19. Two commenters stated that the analysis lacked site-specific data for impacts to fish, wildlife, and threatened and endangered species at Fire Island National Seashore.

NPS Response: The scope of the EA did not include conducting site specific studies regarding potential effects of PWC use on wildlife species at Fire Island National Seashore. Analysis of potential impacts of PWC use on wildlife at the national seashore was based on best available data and input from park staff.

20. One commenter stated that PWC use and human activities associated with their use may not be any more disturbing to wildlife species than any other type of motorized or non-motorized watercraft. The commenter cites research by Dr. James Rodgers of the Florida Fish and Wildlife Conservation Commission, whose studies have shown that PWC are no more likely to disturb wildlife than any other form of human interaction. That PWC use posed less of a disturbance than other vessel types. Dr. Rodgers' research clearly shows that there is no reason to differentiate PWC from motorized boating based on claims of wildlife disturbance.

NPS Response: Based on the documents provided as part of this comment, it appears that personal watercraft are no more apt to disturb wildlife than are small outboard motorboats. In addition to this conclusion, Dr. Rodgers recommends that buffer zones be established, creating minimum distances between boats (personal watercraft and outboard motorboats) and nesting and foraging waterbirds. In Fire Island National Seashore, a 1000-ft buffer and no-wake zones are established by this regulation. With these restrictions in mind, impacts to wildlife and wildlife habitat were judged to be negligible to minor at most locations along the shoreline.

21. One commenter stated that the reported accident numbers involving PWC are higher because they get reported more often than other boating accidents.

NPS Response: We disagree. Incidents involving watercraft of all types, including personal watercraft, are reported to and logged by National Park Service staff. A very small proportion of watercraft accidents at Fire Island National Seashore are estimated to go unreported.

22. One commenter stated that the analysis did not adequately address PWC fire hazards.

NPS Response: According to the National Marine Manufacturers Association, PWC manufacturers have sold roughly 1.2 million watercraft during the last ten years. Out of 1.2 million PWC sold, the U.S. Coast Guard had only 90 reports of fires/explosions in the years from 1995-1999. This is less than 1% of PWC boats having reports of problems associated with fires/explosions. As far as the recall campaigns conducted by Kawasaki and Bombardier, the problems that were associated with fuel tanks were fixed. Kawasaki conducted a recall for potentially defective fuel filler necks and fuel tank outlet gaskets on 23, 579 models from the years 1989 and 1990. The fuel tank problems were eliminated in Kawasaki's newer models, and the 1989 and 1990 models are most likely not in use anymore since life expectancy of a PWC is only five to seven years according to PWIA. Bombardier also did a recall for its 1993, 1994, and 1995 models to reassess possible fuel tank design flaws. However, the number of fuel tanks that had to be recalled was a very small percent of the 1993, 1994, and 1995 fleets because fuel tank sales only amounted to 2.16% of the total fleet during this period (Bombardier, Inc.). The replacement fuel tanks differed from those installed in the watercraft subject to the recall in that the replacement tanks had revised filler neck radiuses, and the installation procedure now also requires revised torque specifications and the fuel system must successfully complete a pressure leak test. Bombardier found that the major factor contributing to PWC fires/explosions was over-torquing of the gear clamp. Bombardier was legally required by the U.S. Coast Guard to fix 9.72% of the recalled models. Out of 125, 349 recalls, the company repaired 48,370 units, which was approximately 38% of the total recall, far exceeding their legal obligation to repair units with potential problems.

Further fuel tank and engine problems that could be associated with PWC fires has been reduced significantly since the National Marine Manufacturers Association set requirements for meeting manufacturing regulations established by the U.S. Coast Guard. Many companies even choose to participate in the more stringent Certification Program administered by the National Marine Manufacturers Association (NMMA). The NMMA verifies annually, or whenever a new product is put on the market, boat model lines to determine that they satisfy not only the U.S. Coast Guard Regulations but also the more rigorous standards based on those established by the American Boat and Yacht Council.

Accident data specific to Fire Island National Seashore shows no incidents of PWC catching on fire or exploding at the park. Based on the regulations imposed upon PWC manufacturers by the U.S. Coast Guard and manufacturing associations, and the continued cooperation of manufacturers to assess and fix any potential design flaws, the National Park Service does not think PWC use presents any unusual fire hazard at Fire Island National Seashore.

23. Several commenters stated that the analysis does not adequately assess the safety threat posed to park visitors by PWC use.

NPS Response: The EA has been revised to acknowledge the reference (ACA 2001). According to New York State PWC accident trends, the number of accidents reported in the State has fluctuated from 31 reported accidents in 1994 to 140 reported accidents in 1996. However, the manufacturers of personal watercraft provide training videos with each watercraft they sell, and to date, 24 States, including New York, require some type of boater education in order to operate a personal watercraft.

Incidents involving watercraft of all types, including personal watercraft, are reported to and logged by the National Park Service, Suffolk County Marine Bureau, and the USCG or local constables. Eleven accidents or incidents involving personal watercraft have been reported at Fire Island National Seashore in the past five years. Accident information generated by the U. S. Coast Guard has been incorporated into the “Summary of National Information of the Effects of Personal Watercraft” section of the “Purpose and Need” chapter of the Final EA.

The inclusion of a buffer and the requirement of the flat-wake speeds within the specified navigation channels, as detailed in modified alternative C, will provide greater protection for swimmers, fishermen, boats at the shoreline, and people in the water and at the shoreline. Because of these measures under the modified preferred alternative (alternative C), the National Park Service has found personal watercraft use at Fire Island National Seashore to be compatible with park management objectives and values under certain regulation.

24. One commenter states that the EA also falls short of adequately examining the adverse impacts of PWC use to canoeist and kayakers. There is no evidence that NPS surveyed canoeist and kayakers regarding how PWC impact their visitor experience of affect the likelihood of return visits.

NPS Response: The regulation prohibits PWC use within 1000′ of the shoreline between the park's western boundary and the western boundary of Sunken Forest and a complete prohibition in all other waters to the east. These are the area most often used by kayakers and canoeists. The seashore's mission includes a commitment “to providing access and recreational and education opportunities to Fire Island National Seashore visitors in this natural and cultural setting close to densely populated urban and suburban areas.” The scope of the EA did not include the conduct of visitor surveys beyond the annual survey conducted by the park. Analysis of potential impacts of PWC use on visitors to the national seashore was based on best available data, input from park staff, and the results of analysis using that data.

25. One commenter stated that the economic impacts should not outweigh environmental impacts.

NPS Response: We agree. The national seashore's mission includes a commitment “to providing access and recreational and education opportunities to Fire Island National Seashore visitors in this natural and cultural setting close to densely populated urban and suburban areas.” The park and the Superintendent are not just considering economic impacts or environmental impacts, but must also consider the potential impacts to their visitors as well as their park mission.

Based on the preceding comments and responses, the NPS has made no changes to the proposed rule language with regard to PWC operations.

This document is not a significant rule and has not been reviewed by the Office of Management and Budget under Executive Order 12866.

(1) This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. The National Park Service has completed the report “Economic Analysis of Personal Watercraft Regulations in Fire Island National Seashore” (Law Engineering and Environmental Sciences, Inc.) dated March 2002. The report found that this rule will not have a negative economic impact. In fact this rule, which will not directly impact local PWC dealerships and rental shops, may have an overall positive impact on the local economy. This positive impact to the local economy is a result of an increase of other users, most notably canoeists, swimmers, anglers and traditional boaters seeking solitude and quiet, and improved water quality.

(2) This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. Actions taken under this rule will not interfere with other agencies or local government plans, policies, or controls. This is an agency specific rule.

(3) This rule does not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients. This rule will have no effects on entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients. No grants or other forms of monetary supplements are involved.

(4) This rule does not raise novel policy issues. This regulation is one of the special regulations being issued for managing PWC use in National Park Units. The National Park Service published the general regulations (36 CFR 3.24) in March 2000, requiring individual park areas to adopt special regulations to authorize PWC use. The implementation of the requirements of the general regulation continues to generate interest and discussion from the public concerning the overall effect of authorizing PWC use and National Park Service policy and park management.

The Department of the Interior certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). This certification is based upon the finding in a report prepared by the National Park Service entitled, “Economic Analysis of Personal Watercraft Regulations in Fire Island National Seashore” (Law Engineering and Environmental Sciences, Inc., March 2002). The focus of this study was to document the impact of this rule on two types of small entities, PWC dealerships and PWC rental outlets. This report found that the potential loss for these types of businesses as a result of this rule would be minimal to none.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. The National Park Service has completed an economic analysis to make this determination. This rule:

a. Does not have an annual effect on the economy of $100 million or more.

b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local or tribal governments or the private sector. This rule is an agency specific rule and imposes no other requirements on other agencies, governments, or the private sector.

In accordance with Executive Order 12630, the rule does not have significant taking implications. A taking implication assessment is not required. No takings of personal property will occur as a result of this rule.

In accordance with Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. This rule only affects use of NPS administered lands and waters. It has no outside effects on other areas and only allows use within a small portion of the park.

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

This regulation does not require an information collection from 10 or more parties and a submission under the Paperwork Reduction Act is not required. An OMB Form 83-I is not required.

The National Park Service has analyzed this rule in accordance with the criteria of the National Environmental Policy Act and has prepared an Environmental Assessment (EA). The EA was open for public review and comment from September 3, 2002, to November 11, 2002. A copy of the EA and the errata is available by contacting the Superintendent, Fire Island National Seashore,120 Laurel Street, Patchogue, New York 11772. E-mail: michael_bilecki@nps.gov, Fax: (631) 289-4898, or on the Internet at http://www.nps.gov/fiis/pwc.htm. A Finding of No Significant Impact (FONSI) was approved on May 12, 2005. Copies of the FONSI may be downloaded at http://www.nps.gov/fiis or obtained by calling (631) 289 4810 x225 or writing to the Superintendent, Fire Island National Seashore,120 Laurel Street, Patchogue, New York 11772.

In accordance with the President's memorandum of April 29,1994, “Government to Government Relations With Native American Tribal Governments” (59 FR 22951) and 512 DM 2, we have evaluated potential effects on federally recognized Indian tribes and have determined that there are no potential effects.

This final rule is effective upon publication in the Federal Register. In accordance with the Administrative Procedure Act, specifically, 5 U.S.C. 553(d)(1), this rule, 36 CFR 7.20(d), is exempt from the requirement of publication of a substantive rule not less than 30 days before its effective date.

As discussed in this preamble, the final rule is a part 7 special regulation for Fire Island National Seashore that relieves the restrictions imposed by the general regulation, 36 CFR 3.24. The general regulation, 36 CFR 3.24, prohibits the use of PWC in units of the national park system unless an individual park area has designated the use of PWC by adopting a part 7 special regulation. The proposed rule was published in the Federal Register (69 FR 51788) on August 23, 2004, with a 60-day period for notice and comment consistent with the requirements of 5 U.S.C. 553(b). The Administrative Procedure Act, pursuant to the exception in paragraph (d)(1), waives the section 553(d) 30-day waiting period when the published rule “grants or recognizes an exemption or relieves a restriction.” In this rule the NPS is authorizing the use of PWCs, which is otherwise prohibited by 36 CFR 3.24. As a result, the 30-day waiting period before the effective date does not apply to the Fire Island National Seashore final rule.

A proposed rule was published in the Federal Register (70 FR 17636) on April 7, 2005, and in the Official Gazette on May 3, 2005. Two organizations, three attorneys, one law firm, and two individuals submitted written comments.

The Office will offer a reduced fee to TEAS applicants who use the Office's Trademark/Servicemark Application, Principal Register form if: (1) The application meets the additional filing requirements specified in § 2.22(a); (2) the applicant files certain communications regarding the application through TEAS; and (3) the applicant agrees to receive communications concerning the application by e-mail. The application will be referred to as a TEAS Plus application. The applicant must pay an additional fee set forth in § 2.6(a)(1)(iv) if, at any time during examination of the TEAS Plus application, the Office determines that: (1) The application did not meet the filing requirements of § 2.22(a) on the filing date; (2) the applicant filed one of the communications listed in § 2.23(a) on paper; or (3) the applicant refused to receive correspondence from the Office by e-mail.

References in this notice to “the Act,” “the Trademark Act,” or “the statute” refer to the Trademark Act of 1946, 15 U.S.C. 1051 et seq. , as amended.

This final rule is in accordance with the Consolidated Appropriations Act, 2005, Sec. 2, Division B, Title VIII, Sec. 802 of Public Law 108-447, 118 Stat. 2809, 2929, enacted on December 8, 2004. The Appropriations Act amends the Trademark Act of 1946 to require that:

Effective January 31, 2005, application filing fees were amended in accordance with the provisions of 15 U.S.C. 1113(a), as amended by the Appropriations Act. A final rule was published at 70 FR 2952 (Jan. 19, 2005). The filing fee for paper applications filed under section 1 or 44 of the Trademark Act is now $375.00 per class, and the filing fee for TEAS applications filed under section 1 or 44 of the Trademark Act is now $325.00 per class.

This rule sets forth the requirements for TEAS applications that must be satisfied in order to be eligible for a reduced fee of $275.00 per class. The rule only applies to TEAS applications filed on the Office's Trademark/Servicemark Application, Principal Register form. Under § 2.22, to obtain a reduced filing fee an application must include the following:

(1) The applicant's name and address;

(2) The applicant's legal entity;

(3) The citizenship of an individual applicant, or the state or country of incorporation or organization of a juristic applicant;

(4) If the applicant is a partnership, the names and citizenship of the applicant's general partners;

(5) A name and address for correspondence;

(6) An e-mail address for correspondence and an authorization for the Office to send correspondence concerning the application to the applicant or applicant's attorney by e-mail;

(7) One or more basis or bases for filing under section 1 and/or section 44 of the Act that satisfy all the requirements of § 2.34. If more than one basis is set forth, the applicant must comply with the requirements of § 2.34 for each asserted basis;

(8) Correctly classified goods and/or services, with an identification of goods and/or services from the Office's Acceptable Identification of Goods and Services Manual (Goods and Services Manual). In an application based on section 44 of the Act, the scope of goods and/or services covered by the section 44 basis may not exceed the scope of the goods and/or services in the foreign application or registration;

(9) If the application contains goods and/or services in more than one class, compliance with § 2.86;

(10) A filing fee for each class of goods and/or services as required by § 2.6(a)(iii);

(11) A verified statement that meets the requirements of § 2.33, dated and signed by a person properly authorized to sign on behalf of the applicant pursuant to § 2.33(a);

(12) A clear drawing of the mark. If the applicant does not claim standard characters, the applicant must attach a digitized image of the mark in .JPG format. If the mark includes color, the drawing must show the mark in color;

(13) If the mark is in standard characters, a mark comprised of only characters in the Office's standard character set available at http://www.uspto.gov/teas/standardCharacterSet.html, typed in the appropriate field of the TEAS Plus form;

(14) If the mark includes color, a statement naming the color(s) and describing where the color(s) appears on the mark, and a claim that the color(s) is a feature of the mark;

(15) If the mark is not in standard characters, a description of the mark;

(16) If the mark includes non-English wording, an English translation of that wording;

(17) If the mark includes non-Latin characters, a transliteration of those characters;

(18) If the mark includes an individual's name or portrait, either: (1) a statement that identifies the living individual whose name or likeness the mark comprises and written consent of the individual, or (2) a statement that the name or portrait does not identify a living individual (see section 2(c) of the Act);

(19) If the applicant owns one or more registrations for the same mark, a claim of ownership of the registration(s), identified by the U.S. registration number(s), pursuant to § 2.36; and

(20) If the application is a concurrent use application, compliance with § 2.42.

In addition to the TEAS Plus application filing requirements in § 2.22, a TEAS Plus applicant must comply with the requirements set forth in § 2.23. The applicant must: (1) Continue to receive communications from the Office by e-mail; and (2) file the following documents through TEAS: response(s) to Office action(s); request(s) to change the correspondence address; appointment or revocation of power of attorney; appointment or revocation of domestic representative; preliminary amendment(s); amendment(s) to allege use under section 1(c) of the Act; statement(s) of use under section 1(d) of the Act; request(s) for extensions of time to file a statement of use under section 1(d) of the Act; and request(s) to delete a section 1(b) basis.

The Office is adding § 2.22, and amending §§ 2.6, 2.23, 2.53, and 7.25.

The Office is revising § 2.6(a)(1) to add new subsections (iii) and (iv). Section 2.6(a)(1)(iii) adds a new fee in the amount of $275.00 per class for filing a TEAS Plus application under § 2.22. Section 2.6(a)(1)(iv) adds a new fee in the amount of $50.00 per class for processing a TEAS Plus application filed under § 2.22 that does not meet the requirements of §§ 2.22 and 2.23. The additional fee is the difference between the filing fee for a regular TEAS application and the reduced fee for a TEAS Plus application.

The Office is adding a new § 2.22. Section 2.22(a) sets forth the requirements for filing a TEAS Plus application. To file a TEAS Plus application, an applicant must use the electronic Trademark/Servicemark Application, Principal Register form, accessed from http://teas.uspto.gov, and choose the reduced fee option presented as the TEAS Plus form on the initial screen.

For most of the filing requirements in § 2.22(a), an applicant must enter the information in the appropriate data fields on the TEAS Plus form. To enter the identification of goods/services, an applicant will be instructed to enter search terms appropriate for the desired goods/services within the identified field on the TEAS Plus form. The system will then retrieve relevant entries from the Goods and Services Manual, and the applicant must select one or more of the entries to add to the TEAS Plus form. The Goods and Services Manual, available on the Office's web site at: http://www.uspto.gov, contains more than 20,000 listings of acceptable identifications of goods and services.

Section 2.22(b) provides that if a TEAS Plus application does not meet the filing requirements of paragraph (a), the applicant must pay the fee required by § 2.6(a)(1)(iv). The application will retain its original filing date if the initial application met the minimum application filing requirements of § 2.21. Section 2.22(b) applies where an application is initially designated as a TEAS Plus application, but upon examination, the Office determines that the application did not meet the TEAS Plus filing requirements as of the filing date.

Section 2.22(c) lists the types of TEAS applications that are not eligible for the reduced fee option under paragraph (a). Applications for certification marks, collective marks, collective membership marks and applications for registration on the Supplemental Register cannot be filed as TEAS Plus applications because the Office does not have TEAS Plus forms for these types of applications.

The Office is removing the provisions of the current § 2.23, which sets forth the Office practice of assigning serial numbers to applications and informing applicants of serial numbers and filing dates. The Office has no intention of changing this practice, but is merely deleting this administrative information from the rules of practice. Such administrative practices are generally set forth in the Office's Trademark Manual of Examining Procedure (TMEP).

The Office is adding new subsections §§ 2.23(a) and 2.23(b). Section 2.23(a) sets forth additional examination requirements for a TEAS Plus application. Section 2.23(a)(1) requires that applicant file the following communications through TEAS: (1) Responses to Office actions (except notices of appeal); (2) Requests to change the correspondence address or owner's address; (3) Appointment or revocation of power of attorney; (4) Appointment or revocation of domestic representative; (5) Preliminary amendments; (6) Amendments to allege use under section 1(c) of the Act; (7) Statements of use under section 1(d) of the Act; (8) Request(s) for extensions of time to file a statement of use under section 1(d) of the Act; and (9) Requests to delete a section 1(b) basis.

Applicants are encouraged to file notices of appeal through the Electronic System for Trademark Trials and Appeals (ESTTA), available on-line at http://www.uspto.gov, but this is not mandatory.

Proposed §§ 2.23(a)(2) and 2.62(b) required that applicants file responses to Office actions within two months of the mailing date, but the Office has withdrawn this proposal.

Section 2.23(a)(2) requires that the applicant continue to receive communications from the Office by electronic mail.

Section 2.23(b) requires that the applicant pay the additional fee set forth in § 2.6(a)(1)(iv) if the applicant fails to meet any of the requirements in § 2.23(a) during the pendency of the application.

The Office is revising § 2.53(a) to break it into subsections (a)(1) and (a)(2). Section 2.53(a)(1) provides that in a TEAS Plus application, an applicant who seeks registration of a standard character mark must enter the mark in the appropriate field on the TEAS Plus form. Section 2.53(a)(2) provides that in all other TEAS submissions, an applicant seeking registration of a standard character mark must either (1) enter the mark in the appropriate field on the TEAS form, or (2) attach a digitized image of the mark that meets the requirements of § 2.53(c), and check the box to claim that the mark consists of standard characters. Thus, a TEAS Plus applicant will not have the option of attaching a digitized image of a standard character mark. The TEAS Plus applicant must enter a mark comprised of characters from the Office's standard character set, currently available at http://www.uspto.gov/teas/standardCharacterSet.html , and the Office will generate a digitized image of the mark in .JPG format and attach the image to the TEAS Plus form.

When issuing an Office action in a TEAS Plus application, the examining attorney will require that the applicant either respond through TEAS, or, if responding on paper, include the additional $50.00 per class fee with the response.

The Office is amending § 7.25(a) to add §§ 2.22 and 2.23 to the list of rules in part 2 of this chapter that do not apply to requests for extension of protection of international registrations to the United States. A request for extension of protection to the United States is not eligible for examination as a TEAS Plus application because it cannot be filed directly through TEAS.

Comment: Three comments note that the Office's Goods and Services Manual includes many “open-ended” listings that require an applicant to complete parenthetical information, such as “headgear, namely (specify type, e.g. , hats, caps),” and ask whether a TEAS Plus filer will be able to complete the parenthetical information without being subject to the higher fee.

Response: The TEAS Plus form will permit an applicant to select any identification in the Manual, including those that require the applicant to complete parenthetical information. When the applicant selects an “open-ended” identification, that identification will permit the applicant to type the necessary information, as per the instructions within the listing ( e.g. , “specify the function of the programs”). If an applicant attempts to use such a listing without completing the required information, TEAS Plus will generate an error message.

Comment: One comment asks whether an applicant will lose TEAS Plus status if the applicant completes the parenthetical information in an open-ended identification, but is later required to amend the parenthetical information because it is deemed indefinite.

Response: The applicant will not lose TEAS Plus status in this situation, unless the applicant uses the free-text field to insert an additional list of items into the identification, or fills it with inappropriate information.

Comment: One comment asks whether an applicant will lose TEAS Plus status if the applicant is required to add a class to its application, or to amend the goods or services in a single class of a multi-class application, and, if so, whether the additional fee will apply only to the newly added or amended class.

Response: Section 2.22(a)(8) requires that the goods/services be correctly classified. An applicant will lose TEAS Plus status if amendment of the classification is required because the applicant classified the goods/services in the wrong class, and will be required to pay the additional fee for all classes in the application. However, it is extremely unlikely that an application will lose its TEAS Plus status because the goods/services are incorrectly classified, because the TEAS Plus form is designed to automatically provide the correct class for goods/services selected from the Goods and Services Manual, and it will not permit an applicant to edit the classification field on the form.

The application will not lose its TEAS Plus status if the examining attorney determines during examination that the original identification of goods/services is inaccurate and requires amendment of the identification or classification.

Comment: Three comments note that there are many goods and services that are new and not yet listed in the Goods and Services Manual. Two comments suggest that § 2.22(a)(8) be amended to include an exception for goods and services that are not yet included in the Manual, but are otherwise acceptable. Two comments urge the Office to act promptly on suggestions for supplementing the Manual, to enable more applicants to take advantage of TEAS Plus.

Response: The suggestion to include an exception for goods and services that are not yet included in the Manual has not been adopted. It is not feasible to provide such exceptions to the TEAS Plus rule, because processing the exceptions would be time-consuming and costly, and would thus defeat the purpose of TEAS Plus.

The Office continually updates its Goods and Services Manual, and actively seeks suggestions from interested members of the public. See Request for Suggestions from the Public for Additions to the Trademark Acceptable Identification of Goods and Services Manual, 1269 TMOG 29 (April 1, 2003). Suggestions can be sent to tmidsuggest@uspto.gov. The Office will act upon these suggestions promptly, so as to enable as many applicants as possible to take advantage of TEAS Plus.

Comment: Two comments note that the Office's standard character set at http://www.uspto.gov/teas/standardCharacterSet.html currently includes both supported and unsupported standard characters, and that an applicant whose mark includes unsupported characters must attach a .JPG image of its mark, which is not permitted in a TEAS Plus application. The comments urge the Office to permit applicants to file TEAS Plus applications for marks that include the characters that are currently unsupported.

Response: The characters that are unsupported in a regular TEAS application will be supported in TEAS Plus. The TEAS Plus form is designed to support all characters in the Office's standard character set.

Comment: One comment notes that proposed § 2.22(a)(12) required a drawing that meets the requirements of 37 CFR 2.51 and 2.52, and urges the Office to change these rules to permit applicants to file drawings that contain gray tones to show shading.

Response: The language in proposed § 2.22(a)(12) has been changed. The final rule requires “a clear drawing of the mark” in a TEAS Plus application, the same standard used in § 2.21(a)(3), which sets forth the requirements for receipt of an application filing date. Thus, an applicant whose drawing meets the requirements of § 2.21(a)(3) will be entitled to use TEAS Plus even if the drawing does not meet all the requirements of §§ 2.51 and 2.52.

It is noted that the Office now accepts drawings that contain the color gray, or stippling that produces gray tones. See TMEP § 807.07(e); Exam Guide 1-05, issued May 20, 2005, posted at http://www.uspto.gov/web/offices/tac/notices/examguide1-05.htm.

Comment: One comment urges the Office to withdraw the requirement for a signature on a TEAS Plus application. The comment asserts that attorneys encounter difficulties in obtaining signatures from their clients, and that if these attorneys deferred filing until they secured the required signature, their clients could miss a deadline for claiming priority. The comment notes that applications are currently not examined until 5-6 months after filing, and suggests that the Office permit applicants to provide a signature within a short time period after filing, such as 2-3 months.

Response: The suggestion has not been adopted. TEAS Plus will lower the cost of examination and reduce pendency in large part because most applications will be complete when filed, and will therefore, result in the issuance of fewer Office actions. Allowing applicants to submit signatures “within a short time after filing” could often result in the need for an Office action, which would be costly and burdensome and defeat the purpose of TEAS Plus.

Comment: One comment notes that regular TEAS forms are available for applications on the Supplemental Register, and for collective and certification mark applications, and questions the rationale for excluding these types of applications from TEAS Plus.

Response: At this time, the Office does not have TEAS Plus forms for applications for registration on the Supplemental Register, or for collective and certification marks.

An applicant will lose its TEAS Plus status if the mark later has to be amended to a collective or certification mark. However, the applicant will not lose TEAS Plus status if the application is amended from the Principal to the Supplemental Register, as long as the amendment is filed through TEAS.

Comment: Two comments suggest that the Office take steps to ensure that the TEAS Plus form will flag missing items during validation.

Response: TEAS Plus will flag missing items and will not accept the transmission if the applicant omits one of the elements that is required for all TEAS Plus applications. However, TEAS Plus will accept the transmission of an application that omits an item that is required for some applications but not others, e.g., a translation of non-English wording. Omission of such an item could trigger a requirement for the additional fee. Moreover, the additional fee may be required if an applicant enters inappropriate information in a required field. For example, if an applicant enters “???” as its state of incorporation, TEAS Plus will accept the transmission, but applicant will be required to pay the $50 fee to convert the application to a regular TEAS application. Accordingly, applicants should review their TEAS Plus applications carefully before transmitting them.

Comment: Two comments assert that scanning multiple page documents into .JPG format is cumbersome and time-consuming, since each page of a document must be scanned separately, and urge the Office to begin accepting alternative formats.

Response: At this time, each page must be scanned separately, and only 50 pages can be attached to a single .JPG submission. The Office is working to resolve this problem, and expects to be able to accept files in .PDF format in the future. At this time, however, an applicant whose attachment is not in .JPG format cannot use TEAS Plus.

Comment: Two comments assert that TEAS does not accommodate all types of communications which a filer might need to make when responding to an Office action, and request that an exception be made for situations in which TEAS fails to provide an electronic method to make a particular filing. The examples given were the inability to file a response on the same day that the action is sent; the inability to send a certified copy of a foreign registration, and the inability to send evidence of radio and television commercials.

Response: TEAS can accommodate most responses to Office actions. Certified copies of foreign registrations are not required during examination. A photocopy, which can easily be scanned into a .JPG file, is sufficient. 15 U.S.C. 1126(e); 37 CFR 2.34(a)(3)(ii).

At this time, TEAS does not have the technical capability to accept a response to an Office action before the Trademark Applications and Registrations Retrieval (TARR) system is updated, which could take up to 72 hours after the action is issued. However, waiting for up to 72 hours is not overly burdensome to applicants. It has been the experience of the Office that very few responses to Office actions are filed within 72 hours after an Office action is issued.

It is true that attachments comprising audio or video tapes cannot be sent directly through TEAS. However, for sound marks there is a process in place to handle these filings electronically. The sound mark can be sent in an e-mail attachment as a .WAV file or MP3 file directly to the TEAS Support Team, at teas@uspto.gov. TMEP §§ 807.09 and 1202.15. Because the TEAS form will require a .JPG attachment for the specimen, the applicant must still create a .JPG file for this purpose; however, it will merely consist of a statement that “A .WAV file (or MP3 file) has been sent directly to the TEAS Support Team for processing.” TEAS Plus will allow for this same work-around solution. It is not possible to adapt TEAS Plus to accept every conceivable type of filing. TEAS Plus offers a reduced fee for filings that meet the TEAS Plus requirements, because these filings require less work by Office personnel, and the Office is passing these cost savings on to applicants. Filings that do not or cannot meet these requirements are subject to the higher fee because of the additional work that is required. Exception processing, apart from the work-around solution already in place for sound marks, is costly and time-consuming, and would defeat the purpose of TEAS Plus.

Comment: Four comments oppose the two-month response deadline for TEAS Plus applications. It is asserted that docketing two different deadlines would be burdensome for applicants and their attorneys; that the requirement would discriminate against foreign applicants, small businesses and individual applicants, and benefit wealthier, more technologically advanced applicants; that there is insufficient justification for imposing a two-month response deadline absent a corresponding benefit to applicants or the Office; that the two-month deadline does not appear to have any bearing on the cost of examination or on the ease or ability of the Office to correspond with applicants; that attorneys may be unable to meet the deadline due to difficulties in communicating with clients, particularly foreign clients, small entities and clients located in less-developed nations; that there is no need to reduce the response time in order to accomplish the purposes of TEAS Plus; that Congress established a six-month response period and applicants should not have to give up their right to the statutory response period in order to use TEAS Plus; that while average pendency may be reduced, TEAS Plus applications could not be abandoned until after expiration of the statutory six-month deadline; and that the two-month deadline is problematic because the TEAS system does not recognize the situation that a deadline expires on a weekend or holiday and responses filed the next day are considered timely, which poses a potential trap for applicants who respond near the end of the two-month deadline.

Response: The Office has withdrawn the proposed requirement for a two-month response deadline.

It is noted that, while there was a time when TEAS did not accept transmission of a response filed on the next business day after a deadline expiring on a weekend or holiday, this problem has been resolved. TEAS now accepts such responses.

Comment: One comment opposes the removal of the current § 2.23, which sets forth the Office's administrative practice of assigning serial numbers to applications and informing the applicant of the serial number and filing date. The comment notes that prompt receipt of a filing date and serial number is extremely important to trademark owners, and asserts that any change in procedure should be subject to public notice and comment.

Response: The Office has no plans to change its procedures for assigning filing dates and serial numbers, or for notifying applicants of serial numbers and filing dates. However, it is unnecessary to set forth these internal administrative procedures in the Code of Federal Regulations. The requirements for receipt of a filing date are set forth in § 2.21, and any change in these requirements is subject to notice and comment.

Comment: One comment asks how the requirement that an applicant must receive communications from the Office by electronic mail in § 2.23(a)(2) differs from the requirement in § 2.22(a)(6) that the applicant provide an e-mail address and authorize the Office to send correspondence concerning the application by e-mail. The comment also questioned whether a filer will lose TEAS Plus status if the Office's e-mail communication capability is interrupted because of a technical problem, or because the applicant's e-mail address provided at the time of filing has changed or been replaced.

Response: Sections 2.22 and 2.23 differ in that § 2.22 sets forth the requirements that must be met at the time of filing, while § 2.23 sets forth the requirements that must be met during the pendency of the application to maintain TEAS Plus status. Section 2.22(a)(6) requires that the application as filed include an e-mail address for correspondence and an authorization for the Office to send correspondence concerning the application to the applicant by e-mail. Section 2.23(a)(2) requires that the applicant continue to receive correspondence by e-mail throughout the pendency of the application.

If an applicant files a request to have correspondence sent on paper, the applicant will lose TEAS Plus status. However, an applicant will not lose TEAS Plus status if the e-mail transmission does not go through due to a technical problem at the USPTO.

Applicants have a duty to notify the Office of any change of the correspondence address. 37 CFR 2.18; TMEP § 603.03. Therefore, an applicant will lose TEAS Plus status if an e-mail communication does not go through because the applicant failed to notify the Office of a change in the e-mail correspondence address.

Comment: One comment expresses support for the requirement that applicants authorize correspondence by e-mail, but asserts that the Office does not consistently process electronically filed requests to change e-mail addresses, and requests that this issue be addressed.

Response: This problem has been corrected. Requests to change an e-mail correspondence address filed through TEAS are now automatically entered into the Office's automated systems.

Comment: One comment asks how the fee required by § 2.6(a)(1)(iv) will be collected from applicants who fail to meet the requirements of §§ 2.22 and 2.23.

Response: The examining attorney will issue a standard Office action requiring payment of the additional fee.

When issuing a non-final action on a TEAS Plus application, the examining attorney will require that the applicant: (1) Respond through TEAS; or (2) submit the additional fee if filing a paper response. If the applicant files a paper response without the additional fee, the requirement for payment of the additional fee will be made final, assuming that the application is otherwise in condition for final refusal.

Comment: One comment expresses support for a reduced fee, and asks what the requirements will be, and when the rules will go into effect.

Response: The effective date is set forth above, under the heading “Effective Date,” and the requirements are set forth below in §§ 2.6, 2.22, 2.23, and 2.53.

This rule does not contain policies with federalism implications sufficient to warrant preparation of a Federalism Assessment under Executive Order 13132 (Aug. 4, 1999).

This final rule has been determined not to be significant for purposes of Executive Order 12866 (Sept. 30, 1993).

The Deputy General Counsel for General Law of the United States Patent and Trademark Office has certified to the Chief Counsel for Advocacy of the Small Business Administration that the rule changes will not have a significant impact on a substantial number of small entities (Regulatory Flexibility Act, 5 U.S.C. 605(b)).

The current filing fees for trademark applications are $375.00 per class for applications filed on paper and $325.00 per class for trademark applications filed electronically through the Trademark Electronic Application System (TEAS). The sole purpose of the final rule is to provide applicants that electronically file trademark applications through TEAS with the added option of filing the application for a reduced fee of $275.00 per class. Applications filed under the reduced fee option will be referred to as TEAS Plus applications.

In fiscal year 2004, the agency received approximately 245,000 trademark applications. Of that total, the Office estimates that 179,000 trademark applications were filed through TEAS and that 66,000 of the TEAS filers were small entities. The Office projects that it will receive approximately 264,000 trademark applications in fiscal year 2005, that an estimated 211,000 will be filed through TEAS, and that approximately 42,000 TEAS filers will take advantage of the reduced fee option. The Office estimates that of the projected 42,000 TEAS Plus applications filed during fiscal year 2005, approximately 15,500 will be filed by small entities.

Because the final rule merely provides all trademark applicants, including small businesses, with an alternative filing method at a reduced cost, the agency certifies that any economic impact on small entities affected by the rule will not be significant. The agency did not receive any comments in response to the certification in the Regulatory Flexibility Act section of the Notice of Proposed Rule Making published in the Federal Register (70 FR 17636) on April 7, 2005.

The rules are in conformity with the requirements of the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq. ).

Notwithstanding any other provision of law, no person is required to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the PRA unless that collection of information displays a currently valid OMB control number.

This rule involves collections of information requirements subject to the PRA. The collections of information involved in this rule have been reviewed and previously approved by OMB under the following control numbers: 0651-0009 and 0651-0050. This rule includes provisions that affect the fee structures for approved information collection activities under 0651-0009 Trademark Processing. Changes to the fee structures, as set forth in this rule, will be submitted to the Office of Management and Budget for review and approval at the time of renewal of 0651-0009.

Comments are invited on: (1) Whether the collection of information is necessary for proper performance of the functions of the agency, (2) the accuracy of the agency's estimate of the burden, (3) ways to enhance the quality, utility, and clarity of the information to be collected, and (4) ways to minimize the burden of the collection of information to respondents.

Send comments regarding any other aspect of this data collection, including suggestions for reducing the burden, to the Commissioner for Trademarks, P.O. Box 1451, Alexandria, VA 22313-1451 (Attn: Ari Leifman), and to the Office of Information and Regulatory Affairs, OMB, 725 17th Street, NW., Washington, DC 20230 (Attn: PTO Desk Officer).

On July 12, 2004, the State of Maryland submitted a formal revision to its State Implementation Plan (SIP). The SIP revision consists of minor changes which clarify the applicability and compliance methods for the regulations governing fuel-burning equipment.

Specifically, the changes in this revision are clarifications to existing regulations. The applicability portion found in COMAR 26.11.09.01 has been revised to include a reference to wood used as fuel. The existing regulation lacked a definition of “fuel.” The Maryland Department of the Environment has stated that the intent of the regulation has always been to include wood as a fuel regulated in this section. An incorrect interpretation of the applicability would be that only “fossil fuel-fired” equipment is regulated by the regulations in COMAR 26.11.09. The addition of the definition for “fuel” clarifies the applicability to include equipment using “wood or wood products” as fuel. The revision also clarifies the calculations for particulate matter emissions found in COMAR 26.11.09.03. The clarification distinguishes the calculations used for concentration emission limits from the calculations used for mass emissions requirements. Concentration emission limits (grains per standard cubic foot) require an adjustment for air flow, mass emission limits (such as pounds per million BTU) do not require this adjustment. The final change in the revision is a clarification of the compliance test method for particulate matter emissions in COMAR 26.11.06. EPA test method 5 requires three runs of approximately one hour each. This amendment clarifies that the average of the three test runs is used to determine compliance with particulate matter standards in a manner consistent with EPA test method 5.

EPA is approving revisions to three sections of regulations for the control of fuel-burning equipment. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. These changes are considered clarifications to existing requirements. The State of Maryland provided public notice and hearing. There were no comments received during the public participation process. However, in the “Proposed Rules” section of today's Federal Register , EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on September 6, 2005, without further notice unless EPA receives adverse comment by August 5, 2005. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 6, 2005. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action to approve clarifications to the applicability and compliance methods for particulate matter standards for fuel-burning equipment may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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

On May 22, 2003, the Texas Commission on Environmental Quality (TCEQ) submitted revisions to its SIP addressing changes to the transportation conformity rule (30 TAC 114.260) adopted by the state on May 1, 2003. Additionally, on May 17, 2005, EPA received another submittal from TCEQ further revising the transportation conformity rule as adopted by the state on April 27, 2005. These revisions incorporate recent changes in the federal transportation conformity rule into the Texas conformity SIP and are described in detail below. EPA is approving these revisions to the Texas conformity SIP.

The Federal Clean Air Act Amendments of 1990 (CAA) required each state to submit a revision to its SIP by November 25, 1994, establishing enforceable criteria and procedures for making conformity determinations for metropolitan transportation plans (MTP), transportation improvement programs (TIP), and projects funded by the Federal Highway Administration (FHWA) or the Federal Transit Administration (FTA). The conformity rule assures that in air quality nonattainment or maintenance areas, projected emissions from transportation plans and programs stay within the motor vehicle emissions ceiling in the applicable attainment demonstration or maintenance SIP. The transportation conformity SIP enables the state to implement and enforce the Federal transportation conformity requirements at the state level per 40 CFR 51 subpart T and 40 CFR 93 subpart A.

EPA published final rules regarding conformity requirements on November 24, 1993 (58 FR 62188). Since then, EPA has made several amendments to the transportation conformity rules: August 7, 1995 (60 FR 40098), November 14, 1995 (60 FR 57179), August 15, 1997 (62 FR 43780), April 10, 2000 (65 FR 18911), August 6, 2002 (67 FR 50808), and July 1, 2004 (69 FR 40004). The state of Texas submitted an initial conformity SIP to EPA on November 6, 1994, and we approved this SIP on November 8, 1995 (60 FR 56244). Revisions to this SIP to address the federal rule amendments promulgated up to and including 1997 were submitted by the Governor of Texas on December 10, 1998, and approved by EPA on July 8, 1999 (64 FR 36790). With the current revisions submitted by TCEQ, the state is aligning its rule to the federal conformity rule for all amendments up to and including those promulgated on July 1, 2004.

Specifically, these revisions address a March 2, 1999, ruling by the United States Court of Appeals for the District of Columbia ( Environmental Defense Fund v. EPA , et al. , 167 F. 3d 641, D.C. Cir. 1999). The court's ruling affected provisions of the rule that pertained to the funding of MTPs and TIPs; use of motor vehicle emissions budgets (MVEB) prior to SIP approval; federal transportation projects in areas without a conforming MTP and TIP; timing of conformity consequences following an EPA SIP disapproval; and use of submitted safety margins in areas with approved SIPs submitted prior to November 24, 1993.

More recent changes to the rule are inclusion of criteria and procedures for implementing conformity in accordance with the new National Ambient Air Quality Standards (NAAQS) addressing eight-hour ozone and particulate matter with an aerodynamic diameter less than or equal to 2.5 micrometers (PM  2.5 ). Changes relating to the implementation of these new standards are summarized below.

Changes to 40 CFR 93.101 add new definitions for one-hour ozone NAAQS; eight-hour ozone NAAQS; donut areas; isolated rural nonattainment and maintenance areas; and limited maintenance plans. Other federal changes in the rule include provision of a one-year grace period before conformity is required in newly designated nonattainment areas and the addition of PM  2.5 to the list of criteria pollutants (40 CFR 93.102). Changes to 40 CFR 93.104 were made to amend the point by which a conformity determination must be made following a state's submission of a control strategy SIP or maintenance SIP for the first time. This new provision requires conformity to be determined within 18 months of EPA's affirmative finding that the SIP's MVEBs are adequate. Changes to the grace period for transportation plan requirements in certain ozone and carbon monoxide nonattainment areas are made in 40 CFR 93.106. 40 CFR 93.109 has been changed to include the applicability of conformity for one-hour ozone nonattainment or maintenance areas until EPA revokes the one-hour ozone NAAQS and additional language related to conformity requirements for the new NAAQS for eight-hour ozone and PM  2.5 . Changes to 40 CFR 93.110 clarify that conformity determinations must be based on the latest planning assumptions in place at the time a conformity analysis begins, rather than at the time of Department of Transportation's conformity finding. Some changes to the methodology of hot-spot analyses were made at 40 CFR 93.116. The rule revisions also made several changes with respect to the MVEB at 40 CFR 93.118 where the adequacy process is discussed. Changes to 40 CFR 93.119 concern use of interim emissions tests in areas without adequate or approved MVEBs. In 40 CFR 93.120, the 120-day grace period previously allowed prior to a conformity freeze has been deleted so that a freeze will occur immediately upon the effective date of a SIP disapproval. EPA amended the rule at 40 CFR 93.121 so that regionally significant, non-federal projects may no longer advance during a conformity lapse unless they have received all necessary state and local approvals prior to the lapse. EPA also made minor revisions to 40 CFR 93.117 and 40 CFR 93.124-93.126. For a comprehensive guide to all changes in the federal rule, please see the reference document at http://www.epa.gov/otaq/transp/conform/420b04013.pdf or the transportation conformity final rule at 69 FR 40004.

With these two SIP submissions, the state is incorporating by reference the changes made to the federal conformity rule up to and including the final rule issued on July 1, 2004 (69 FR 40004), with the exception of the requirements of 40 CFR 93.105. The federal requirements in 40 CFR 93.105 are addressed in the commission's rule in 30 TAC 114.260(d) and are not being changed with this revision. The TCEQ is also making minor changes to other sections of the state conformity rule to correct typographical errors and reflect updated name and style changes within the Commission in accordance with the Texas Legislative Council Drafting Manual of October 2002.

The SIP revision package submitted to EPA on May 22, 2003, contained a revision to 30 TAC 114.452, Control Requirements. EPA is not acting on 30 TAC 114.452 today. This submitted revision allows commercial operators of lawn and garden equipment additional time to submit an alternate emission reduction plan. However, TCEQ has since repealed this rule and EPA will be acting on the repeal in a subsequent Federal Register publication. The package submitted in 2003 also contained a revision to 30 TAC 114.21, Exemptions. EPA is not acting on 30 TAC 114.21 today.

EPA is approving the revisions to the Texas conformity SIP and corresponding amendments to 30 TAC 114.260 Transportation Conformity. The EPA is publishing this rule without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the SIP revisions if relevant adverse comments are received. The rule will be effective on September 6, 2005, without further notice unless we receive adverse comment by August 5, 2005. If we receive adverse comment we will publish a timely withdrawal in the Federal Register informing the public this rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of adverse comment.

The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.” This rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)), because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act.

This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This rule is not subject to Executive Order 13045 because it approves a state program.

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 6, 2005. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2).)

On May 13, 2005, we published a direct final rule (70 FR 25676) and a parallel proposal (70 FR 25684) amending the NESHAP for Miscellaneous Coating Manufacturing (40 CFR part 63, subpart HHHHH). The direct final rule amended the NESHAP by providing additional compliance options and clarifications. Specifically, the direct final rule amendments specified that compliance with a percent reduction emission limit may be demonstrated by measuring total organic compounds (TOC), compliance with the weight percent hazardous air pollutant (HAP) limit in coatings products may be demonstrated based on formulation data, and the cover or lid on a process vessel may be opened for material additions and sampling. The direct final rule amendments also clarified the requirements for cleaning operations, the compliance date for equipment that is added to an existing source, the conditions under which you must determine whether an emission stream is a halogenated vent stream, and the terminology used to describe the emission limits for process vessels. The direct final rule amendments also revised the definition of Group 2 transfer operations to clarify that all product loading operations are part of the miscellaneous coating manufacturing. We stated in the preamble to the direct final rule and parallel proposal that if we received adverse comments by June 13, 2005, (or if a public hearing was requested by May 23, 2005) on one or more distinct provisions of the direct final rule, we would publish a timely notice in the Federal Register specifying which provisions will become effective and which provisions will be withdrawn due to adverse comment. We subsequently received adverse comment from one commenter on the amendment to allow compliance with the weight percent HAP limit in coating products may be demonstrated based on formulation data. The commenter's claim is that if EPA does not allow the mass cutoffs of 0.1 percent for OSHA-defined carcinogens or 1 percent for other HAP used in Material Safety Data Sheets (MSDS), then the option is very limited.

Accordingly, we are withdrawing the amendment, 40 CFR 63.8055(b)(4). The amendment is withdrawn as of July 6, 2005. We will take final action on the proposed rule after considering the comment received. We also received a comment regarding chemical processes involving reactions that produce materials that may have a coating-application end use. However, the commenter referred to preamble language merely clarifying existing rule language in overlapping standards, and not new language provided by the direct final rule. We have not changed any of the rule language discussed in the clarification of overlapping standards section of the preamble. Thus, this comment is not an adverse comment on the amendments themselves, but rather an adverse comment on the definition of coating manufacturing in the original rule.

We will not institute a second comment period on this action. The provisions for which we did not receive adverse comment will become effective on July 12, 2005, as provided in the preamble to the direct final rule.

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

• Crop production (NAICS code 111)

• Animal production (NAICS code 112)

• Food manufacturing (NAICS code 311)

• Pesticide manufacturing (NAICS code 32532)

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

In addition to using EDOCKET (http://www.epa.gov/edocket/) , you may access this Federal Register document electronically through the EPA Internet under the “ Federal Register ” listings at http://www.epa.gov/fedrgstr/ . A frequently updated electronic version of 40 CFR part 180 is available at E-CFR Beta Site Two at http://www.gpoaccess.gov/ecfr/ .

In the Federal Register of November 14, 2002 (67 FR 220) (FRL-7279-3), EPA issued a notice pursuant to section 408(d)(3) of the FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide tolerance petition (2E6514) by Wacker Specialities, 3301 Sutton Road, Adrian, MI, 49221-9397. The petition requested that residues of a certain pesticide chemical in or on various food commodities be exempted from the requirement of a tolerance. This notice included a summary of the petition prepared by the petitioner Wacker Specialties. No comment was submitted.

Section 408(c)(2)(A)(i) of the FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(c)(2)(A)(ii) defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Pursuant to section 408(c)(2)(B), in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in section 408(b)(2)(C), which requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”

EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be clearly demonstrated that the risk from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.

EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. First, EPA determines the toxicity of the pesticide chemical. Second, EPA examines exposure to the pesticide through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings.

Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): Solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients.

The Agency included in the final rule a list of those who may be potentially affected by this action. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under the FOR FURTHER INFORMATION CONTACT .

In addition to using EDOCKET at http://www.epa.gov/edocket/ , you may access this Federal Register document electronically through the EPA Internet under the “ Federal Register ” listings at http://www.epa.gov/fedrgstr/ . A frequently updated electronic version of 40 CFR part 180 is available at E-CFR Beta Site Two at http://www.gpoaccess.gov/ecfr/ .

A tolerance exemption for dimethyl ether (methane, oxybis-) was established in the Federal Register of May 18, 2005, (70 FR 28436), (FRL-7711-4). In that document the CAS Reg. No. in the tolerance exemption expression was given as 115-10-06. It should be 115-10-6 as expressed in the preamble.

Section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B), provides that, when an Agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a final rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making today's technical correction final without prior proposal and opportunity for comment, because EPA is merely correcting a typographical error in a previously-published final rule in the Chemical Abstracts Service (CAS) numerical designation for a chemical. Notice and public procedures are unnecessary for such a minor change. The initial notice for the final rule and the final rule clearly identified the chemical by name. EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(B).

This final rule implements a technical correction to the CFR., and it does not otherwise impose or amend any requirements. As such, the Office of Management and Budget (OMB) has determined that a technical correction is not a “significant regulatory action” subject to review by OMB under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Nor does this final rule contain any information collection requirements subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq .), or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4).

Since the Agency has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the APA or any other statute (see Unit III.), this action is not subject to provisions of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq .).

This action will not result in environmental justice related issues and does not, therefore, require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994).

Since this action is not a “significant regulatory action” as defined by Executive Order 12866; it does not require OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), and is not subject to Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note).

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

• Crop production (NAICS code 111)

• Animal production (NAICS code 112)

• Food manufacturing (NAICS code 311)

• Pesticide manufacturing (NAICS code 32532)

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

In addition to using EDOCKET http://www.epa.gov/edocket/ , you may access this Federal Register document electronically through the EPA Internet under the “ Federal Register ” listings at http://www.epa.gov/fedrgstr/ . A frequently updated electronic version of 40 CFR part 180 is available at E-CFR Beta Site Two at http://www.gpoaccess.gov/ecfr/ .

EPA issued a final rule, published in the Federal Register of July 14, 1997 (62 FR 37516) (FRL-5731-3), which announced that on its own initiative under section 408 of the FFDCA, 21 U.S.C. 346a, as amended by the FQPA (Public Law 104-170), it established a time-limited tolerance for the residues of fenpropathrin in or on currant at 15 ppm, with an expiration date of December 31, 1998. This time-limited tolerance was subsequently extended via Federal Register notices published on: September 9, 1998 (63 FR 48113) (FRL-6020-2), extending the tolerance until June 30, 2000; August 9, 2000 (65 FR 48617) (FRL-6597-9), extending the tolerance until December 31, 2001; and on December 14, 2001 (66 FR 64768) (FRL-6814-2), extending the tolerance until December 31, 2003. EPA established the tolerance because section 408(l)(6) of the FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under FIFRA section 18. Such tolerances can be established without providing notice or period for public comment.

EPA received a request to extend the use of fenpropathrin on currants for this year's growing season due to the continued problems with controlling currant cane borer and currant stem girdler in currants in Washington, since the cancellation of the insecticide historically used to control these pests. After having reviewed the submission, EPA concurs that emergency conditions exist. EPA has authorized under FIFRA section 18 the use of fenpropathrin on currants for control of currant cane borer and currant stem girdler in Washington.

EPA assessed the potential risks presented by residues of fenpropathrin in or on currant. In doing so, EPA considered the safety standard in section 408(b)(2) of the FFDCA, and decided that the necessary tolerance under section 408(l)(6) of the FFDCA would be consistent with the safety standard and with FIFRA section 18. The data and other relevant material have been evaluated and discussed in the final rule published in the Federal Register of July 14, 1997 (62 FR 37516) (FRL-5731-3). Based on that data and information considered, the Agency reaffirms that re-establishment of the time-limited tolerance will continue to meet the requirements of section 408(l)(6) of the FFDCA. Therefore, the time-limited tolerance is re-established for an additional 3-year period. EPA will publish a document in the Federal Register to remove the revoked tolerance from the Code of Federal Regulations (CFR). Although this tolerance will expire and is revoked on December 31, 2008, under section 408(l)(5) of the FFDCA, residues of the pesticide not in excess of the amounts specified in the tolerance remaining in or on currant after that date will not be unlawful, provided the pesticide is applied in a manner that was lawful under FIFRA and the application occurred prior to the revocation of the tolerance. EPA will take action to revoke this tolerance earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe.

Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. Although the procedures in those regulations require some modification to reflect the amendments made to the FFDCA by the FQPA, EPA will continue to use those procedures, with appropriate adjustments, until the necessary modifications can be made. The new section 408(g) of the FFDCA provides essentially the same process for persons to “object” to a regulation for an exemption from the requirement of a tolerance issued by EPA under new section 408(d) of the FFDCA, as was provided in the old sections 408 and 409 of the FFDCA. However, the period for filing objections is now 60 days, rather than 30 days.

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number OPP-2005-0192 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before September 6, 2005.

1. Filing the request . Your objection must specify the specific provisions in the regulation that you object to, and the grounds for the objections (40 CFR 178.25). If a hearing is requested, the objections must include a statement of the factual issues(s) on which a hearing is requested, the requestor's contentions on such issues, and a summary of any evidence relied upon by the objector (40 CFR 178.27). Information submitted in connection with an objection or hearing request may be claimed confidential by marking any part or all of that information as CBI. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. A copy of the information that does not contain CBI must be submitted for inclusion in the public record. Information not marked confidential may be disclosed publicly by EPA without prior notice.

Mail your written request to: Office of the Hearing Clerk (1900L), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. You may also deliver your request to the Office of the Hearing Clerk in Suite 350, 1099 14th St., NW., Washington, DC 20005. The Office of the Hearing Clerk is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Office of the Hearing Clerk is (202) 564-6255.

2. Copies for the Docket . In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit III.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in ADDRESSES . Mail your copies, identified by docket ID number OPP-2005-0192, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. In person or by courier, bring a copy to the location of the PIRIB described in ADDRESSES . You may also send an electronic copy of your request via e-mail to: opp-docket@epa.gov . Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

A request for a hearing will be granted if the Administrator determines that the material submitted shows the following: There is a genuine and substantial issue of fact; there is a reasonable possibility that available evidence identified by the requestor would, if established resolve one or more of such issues in favor of the requestor, taking into account uncontested claims or facts to the contrary; and resolution of the factual issues(s) in the manner sought by the requestor would be adequate to justify the action requested (40 CFR 178.32).

This final rule establishes a time-limited tolerance under section 408 of the FFDCA. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866, due to its lack of significance, this rule is not subject to Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Since tolerances and exemptions that are established on the basis of a FIFRA section 18 petition under section 408 of the FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) do not apply. In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132, requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of the FFDCA. For these same reasons, the Agency has determined that this rule does not have any “tribal implications” as described in Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249,November 6, 2000). Executive Order 13175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.” This rule will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175, does not apply to this rule.

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

EPA Region 5 is publishing this direct final notice of deletion of the Fadrowski Drum Disposal Superfund Site from the NPL.

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

Because EPA considers this action to be noncontroversial and routine, EPA is taking it without prior publication of a notice of intent to delete. This action will be effective September 6, 2005 unless EPA receives adverse comments by August 5, 2005 on this notice or the parallel notice of intent to delete published in the Proposed Rules section of today's Federal Register. If adverse comments are received within the 30-day public comment period on this notice or the notice of intent to delete, EPA will publish a timely withdrawal of this direct final notice of deletion before the effective date of the deletion and the deletion will not take effect. EPA will, as appropriate, prepare a response to comments and continue with the deletion process on the basis of the notice of intent to delete and the comments already received. There will be no additional opportunity to comment.

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

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

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

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

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

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

The following procedures apply to deletion of the Site:

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

(2) The State of Wisconsin concurred with deletion of the Site from the NPL.

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

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

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

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

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

The Fadrowski Drum Disposal Site (FDDS or “the Site”) occupies approximately 20 acres of suburban land in the southeast quarter of Section 1, Township 5 North, Range 21 East, Milwaukee County, Wisconsin. The Site is located within the corporate limits of the City of Franklin and is fronted by U.S. 41 (also known as South 27th Street) on the east, Rawson Avenue is about 1,400 feet to the south and College Avenue is located approximately 3,400 feet to the north. An unnamed tributary flows southward along the western boundary of the Site and eventually empties into the Root River approximately three miles southwest of the Site. The tributary carries overflow water from Mud Lake in Grobschmidt Park, approximately one-quarter mile north of the Site and also receives storm water discharge from South 27th Street and other upgradient paved areas. The Site abuts and is downgradient of the defunct Menard lumber and retail facility situated directly to the north. Several commercial retail facilities are situated directly south and southwest of the Site. The new Menard Home Improvement Center is located directly east of the Site, across U.S. 41. Residential subdivisions and multi-unit residential properties are situated west of the unnamed tributary and also along Rawson Avenue.

Between 1970 and 1982, the FDDS was owned and operated by Edward J. Fadrowski as an unlicensed disposal facility that accepted demolition and construction wastes. Pursuant to applicable state regulations, the operation would have been exempt from regulation had it only accepted solid wastes consisting of clean earth fill and containing less than 25 percent demolition waste. During that time frame, Mr. Fadrowski was also the principal operator of a waste collection and transportation company (Ed's Trucking) which was licensed to collect and transport noncombustible waste, wood, refuse and garbage. The clients of Ed's Trucking included diverse local businesses and industries that generated a variety of wastes. The Wisconsin Department of Natural Resources (WDNR) discovered the unlicensed disposal of nonexempt waste at the Site in 1981 during an inspection. A subsequent WDNR inspection confirmed that the disposal of metal, wood, foundry waste, crushed drums, and slag-type boiler waste had occurred at the Site.

In December 1982, Menard, Inc. of Eau Claire, Wisconsin purchased the FDDS property and two adjacent land parcels to the north and began constructing its lumber and retail facility at 6801 S. 27th Street, Franklin, Wisconsin. The FDDS property was intended as a source of borrow soil to be used during grading and construction of Menard's lumber and retail facility on the adjacent parcels. During excavation at the Site for soil fill material in May 1983, buried drums containing unknown liquids and sludges were uncovered; some of the drums had been ruptured and their contents released. The WDNR sampled the drum contents and found them to be hazardous, as defined by Chapter NR 181 of the 1981 Wisconsin Administrative Code (WAC). The samples revealed high concentrations of lead at 32,700 parts per million (ppm) and chromium at 6,800 ppm. Also identified were trace levels of arsenic (less than 5 ppm), the pesticide DDT at 1,450 ppm, and various petroleum-derived volatile organic compounds (VOCs). Other waste samples collected by the WDNR at the Site were determined to be hazardous because their flash points were below 140 degrees Fahrenheit, indicating ignitability. The EPA's Office of Health and Environmental Assessment determined that the carcinogenic risks from the principal threat, i.e., buried containerized wastes, exceeded EPA's upper threshold of acceptable risk (1 × 10 − 4 ). The EPA and the WDNR believe that a number of potential responsible parties (PRPs) generated the hazardous wastes that were disposed of at the Site and/or caused the release of these substances at the Site.

The Site was proposed for listing on the NPL on October 15, 1984 (49 FR 40320). Pursuant to Section 105 of CERCLA, 42 U.S.C. 9605; the FDDS listing on the NPL was finalized on June 10, 1986 (51 FR 21054). An Administrative Order on Consent (AOC) was signed in May 1987 by the PRPs, U.S. EPA, and WDNR, compelling the PRPs to conduct a Remedial Investigation and Feasibility Study (RI/FS) to determine the nature and extent of the contamination as well as alternatives for cleaning up the Site.

Pursuant to the 1987 AOC, the RI/FS was initiated in May 1987 by INX International Ink Company (INX), formerly ACME Ink Printing Company of Milwaukee, Wisconsin, and was completed in June 1991. The RI results indicated that three generalized geological layers exist at the Site: clay till, sand and gravel, and dolomite bedrock. The uppermost clay till layer is between 80 and 100 feet thick and is continuously saturated up to within 3 to 10 feet of the ground surface; however, the soils are of such low permeability that this aquifer does not sustain domestic water supply. The underlying sand and gravel aquifer yields adequate amounts of water to sustain domestic use and several domestic wells are screened in this unit. Beginning at about 175 feet below ground surface and ranging up to 320 feet in thickness, the deep dolomite bedrock aquifer is the primary source of domestic water supply in the vicinity of the FDDS. Although there were very few inorganic or organic compounds detected at elevated levels in the groundwater at the FDDS, the RI results confirmed that the groundwater in the clay till aquifer contained cyanide (67 parts per billion or ppb), chromium (13 ppb), and barium (273 ppb), in excess of the 1988 Wisconsin Preventive Action Limits (PALs). During one sampling event, benzene and mercury were also found to exceed the 1988 Wisconsin PALs and Enforcement Standards (ESs); however these results could not be confirmed. The benzene detections have since been attributed to sampling and/or laboratory error. The concentrations of mercury and other inorganic constituents, e.g., chromium, barium, and cyanide, have declined steadily to below the PALs and ESs. Several private wells are located within 2,000 feet of the Site and several emergency back up wells for the cities of Franklin and Oak Creek are located within three miles of the Site; however, testing showed that drinking water has not been impacted by the Site.

Surface water on the Site was contained by a large manmade pond in the west central portion of the Site. The pond intercepted most surface water runoff from the Site and was also a point of groundwater discharge. The pond contained elevated cyanide levels. The water in the unnamed tributary on the western Site boundary was found to contain low levels of VOCs. Other contaminants detected downstream of the Site, namely ethylbenzene and xylenes, were not detected onsite. Cyanide and mercury were detected in both upstream and downstream samples, and were therefore not likely to be site-related. No semi-volatile organic chemicals (SVOCs) were detected in the unnamed tributary water.

The sediments sampled in the onsite pond contained site-related contaminants. Sediments collected downstream of the Site in the unnamed tributary showed higher concentrations of certain polynuclear aromatic hydrocarbons (PAHs) than did the upstream samples. Similarly, total PAHs and inorganics, including aluminum, barium, beryllium, calcium, lead, and magnesium showed higher concentrations in the downstream samples compared to the samples collected upstream of the Site, indicating that the stream sediments may have been contaminated by the Site. Subsequent monitoring results showed that the surface water and sediments in the tributary had not been contaminated by the FDDS, but instead, were more likely to have been affected by urban runoff.

Surface soils from the western slope of the fill pile showed PAH concentrations as high as 10,290 ppb. This was consistent with the character of onsite subsurface soils and indicated that runoff or seeps from the fill pile were impacting surface soil adjacent to the pile and west of the pile near the unnamed tributary. Subsurface soils collected onsite were contaminated with organic compounds—namely toluene at levels ranging from 34 to 1,800 ppb. Total PAHs were also frequently detected in the subsurface soil at levels as high as 24,300 ppb. The subsurface soil borings also revealed DDT at its highest concentration of 310 ppb and the polychlorinated biphenyl, Arochlor 1254, at a maximum concentration of 1,900 ppb. Cyanide was found in one boring at 6,360 ppb and numerous inorganic compounds were also detected.

The draft RI/FS was completed in March 1991. The final FS was completed in June 1991 and provided an in-depth summary and discussion of Site sampling activities and a health risk assessment. Six cleanup alternatives were also evaluated as part of the FS; however, no groundwater alternatives were among the six evaluated due to the low contaminant levels detected in the groundwater and the limited extent of groundwater contamination. The considered alternatives included source-control actions that relied on natural attenuation of groundwater contaminants.

Based on the results of the RI/FS, a Remedial Action (RA) was selected for cleaning up the Site and was documented in the Record of Decision (ROD) of June 10, 1991, with concurrence from the WDNR. The selected remedy was to eliminate or reduce migration of the contaminants from the Site to the groundwater and to reduce the risk associated with exposure to the contaminated materials, thus protecting human health and environment. The major components of the selected remedy included:

• Excavation of previously identified drums and associated characteristically hazardous soils;

• Construction of trenches to find and excavate additional containerized waste and associated characteristically hazardous soils;

• Off-site recycling or treatment and disposal of drummed wastes;

• Treatment and disposal of contaminated soil;

• Construction of a landfill cover (cap) in compliance with Section NR 504.07, Wisconsin Administrative Code (WAC) landfill closure requirements;

• Use of institutional controls on landfill property to limit land and groundwater use; and,

• Monitoring of groundwater and surface water to ensure effectiveness of the remedial action and to evaluate the need for future groundwater treatment.

The health risk assessment, performed during the RI, indicated that people may have been exposed to hazardous substances by drinking contaminated groundwater and surface water or by accidentally ingesting contaminated soil. Residents in the vicinity of the Site, especially children, may have used the manmade pond located at the eastern edge of the Site for swimming, thereby potentially exposing them to Site contaminants. Most risks from these exposures fell within a risk range of 1 × 10 −4 (one in ten-thousand) to 1 × 10 −6 (one in one-million), which is considered acceptable by EPA. However, other Site conditions, such as the onsite buried drums of hazardous materials, would pose unacceptable risks to construction workers and possibly residents should the Site be commercially or residentially developed in the future. The RI indicated that some of the drums had ruptured, causing further contamination of the environment. Approximately nine acres of wetlands border the onsite pond on the west. Levels of cyanide in the onsite pond exceeded the Ambient Water Quality Criteria for the protection of aquatic life. Cyanide was also found in the upstream and downstream tributary samples. Prior to the cleanup, runoff from the Site flowed toward the wetlands; however, no threatened or endangered species had been previously identified in this area.

A Remedial Design (RD) was completed by Menard, Inc., a PRP for the Site, under the September 30, 1991 AOC. The RD was approved by the EPA in March 1993 and included the final design of the selected RA alternative. This RA alternative prescribed the removal of drummed waste from the Site, waste consolidation, pond closure, clay cap installation over the consolidated waste, and the installation of a groundwater monitoring network. One component of the RA—institutional controls—was effected by placing deed restrictions on the portion of the property that included but was not limited to the waste footprint. The deed restrictions, effective since June 1993, prohibit certain activities within the fill area on the Site unless prior written approval is obtained from the EPA, in consultation with the WDNR.

On April 21, 1993, EPA issued a Unilateral Administrative Order (UAO) to the PRPs to implement the Remedial Action (RA) specified in the 1991 ROD. Menard, Inc. undertook the RA field activities in September 1993. The majority of the work was completed by September 1994, including:

• Removal and off-site treatment and disposal of 167 buried drums;

• Excavation, treatment, and disposal of approximately 100 cubic yards of contaminated soils;

• De-watering and backfilling the 2.6 million gallon onsite pond;

• Consolidation of more than 18,000 cubic yards of waste (primarily demolition debris) in order to minimize the capped area;

• Construction of a multilayered landfill cover system and leachate collection system, complicit with section NR 504.07, WAC, for placement over the consolidated wastes;

• Installation of both upgradient and downgradient nested monitoring wells, screened within the three geological units (clay, sand and gravel, and dolomite bedrock) at the Site; and,

• Installation of a perimeter fence.

Since the completion of the RA, the Site has been in the monitoring phase, which was projected to continue for a 30-year period. As part of the RA, the Scope of Work (SOW) required that after two years and five years of respective monitoring, a comprehensive statistical analysis of the data at each of these milestones was to be prepared in order to evaluate the effectiveness of the remedy and the potential for reduced monitoring at the Site. The monitoring network included nine groundwater monitoring wells, one leachate tank, one private well on the southeast side of the Site, and two surface water/sediment sample locations in the unnamed tributary—one each upstream and downstream of the Site. The nine nested monitoring wells intercept three aquifers at the Site ( i.e. , clay, sand and gravel, dolomite) and are located just outside the four corners of the landfill boundary. The prescribed monitoring included quarterly monitoring of the groundwater for field parameters (temperature, pH, conductivity), EPA Target Analyte List (TAL) parameters (inorganics), EPA Target Compound List (TCL) parameters (VOCs, SVOCs, and pesticides), WAC NR 508 parameters (alkalinity, chemical oxygen demand, hardness, sodium, dissolved iron, chloride, and fluoride), and percent organic material and grain size analysis for stream sediment samples.

Beginning in November 1995, the effectiveness of the remedy was monitored through quarterly sampling of the nine monitoring wells, leachate tank, surface water, and sediments from the unnamed tributary. The requisite two-year statistical evaluation of contaminant levels in the groundwater, leachate, surface water and sediment was prepared by Menard, Inc. using data from eight monitoring events. The data were evaluated to ascertain whether the Site was meeting cleanup requirements and whether the monitoring frequency and parameters needed adjustment. The cleanup requirements for the FDDS, established in the 1991 ROD, are the groundwater quality standards in Chapter NR 140 WAC, 1988. As previously mentioned, these values are referred to as the Wisconsin PALs and ESs. The report concluded that natural attenuation of site-related contaminants was effective; surface water and sediment monitoring could be discontinued, and the monitoring frequency of onsite wells, the private well, and the leachate tank could be reduced from quarterly to semiannual. Concurring with these recommendations, EPA and the WDNR approved the report in November 2000; the revised monitoring schedule was implemented at that time.

The five-year statistical evaluation was completed in June 2003 and utilized data collected from the onsite monitoring wells and leachate tank during fifteen monitoring events, and surface water and sediment data collected during nine monitoring events. The results showed that site-related contaminants follow a declining trend in their respective concentrations. Statistical evaluation of the groundwater data indicated that the PALs had been met for all contaminants except iron, manganese, and fluoride. These three constituents have been consistently detected above their respective PALs in the onsite groundwater at a five percent statistical significance level.

Although fluoride, iron, and manganese exceed their respective PALs, they are also common constituents found naturally in the groundwater of Wisconsin. An evaluation of the background groundwater quality in Milwaukee County, prepared by Menard, Inc. and approved by EPA and WDNR as part of the five-year statistical evaluation, indicated that concentrations of fluoride, iron, and manganese above the 1988 Chapter NR 140 PALs are common. The PAL exceedances reported onsite are, therefore, unlikely to be caused by past FDDS activities and more probably reflect the naturally occurring groundwater quality in the region. The consistency of these onsite groundwater levels with background levels, also exceeding the PALs for these three constituents, demonstrates that the groundwater has been restored to its pre-FDDS condition. This finding also indicates that achieving PALs for these three constituents via natural attenuation or related methods is neither technically nor economically feasible. To address these higher constituent levels in groundwater, an exemption was granted by the WDNR, pursuant to WAC Sections NR 140.28 and NR 507.29, allowing the calculation of Wisconsin alternative concentration levels (WACLs) for iron, fluoride, and manganese in the monitoring wells where the PALs are exceeded. The WACLs, respectively calculated for iron in three monitoring wells, manganese in five wells, and fluoride in two wells (see Table 1), remain protective of human health and the environment and have been approved by the WDNR in its letter of July 29, 2003 to the EPA. These actions have brought the FDDS into full compliance with WAC 1988 Chapter NR 140 Groundwater Quality Standards and the RA cleanup goals set forth in the 1991 ROD and RD/RA SOW. Moreover, Lake Michigan is the source of the municipal water supply for the City of Franklin. The City provides potable water to all of the large commercial establishments and residential developments in the vicinity of the Site. Though several emergency back up wells for the cities of Franklin and Oak Creek are within three miles of the Site, and some private wells still exist within 2,500 feet of the Site, such as those located south of Rawson Avenue, test results show that these wells are not being affected by the Site. The City of Franklin expects to extend its water distribution lines to this area within the next five years, at which time the use of private wells will be unnecessary. Surface water and sediment from the unnamed tributary at the Site have been sampled and analyzed during nine previous monitoring events at both upgradient and downgradient flow locations with respect to the FDDS. Analytical results indicated that while surface water and sediment quality have been affected by urban runoff, the results do not reflect that surface water and sediment in the unnamed tributary have been affected by the FDDS.

Menard, Inc. has assumed operation and maintenance (O&M) responsibility since the completion of RA activities through its primary RA contractor, Ayres Associates of Eau Claire, Wisconsin. These responsibilities, listed in Table 2, have been performed by Ayres Associates' subcontractor, Environmental Sampling Corporation of Muskego, Wisconsin.

Annual O&M reports are filed each June summarizing the O&M work conducted over the past year and documenting any problems at the Site, corrective actions taken, and changes in the monitoring and reporting requirements. The O&M items of note that have occurred at the Site since RA completion are the following:

1. Installation of a shallow subsurface drain system in 1999 to intercept the surface water seeping from the west slope of the Site. The drain system directed the water via piping to the leachate collection system where it was discharged to the Milwaukee Metropolitan Sanitary District. This system eliminated a seep that was detected; no problems with the cover system have been detected since that time.

2. Miscellaneous repairs and/or replacement of the fencing, locks, and access road, as well as annual mowing of the grass cover at the Site; and,

3. Reduction in groundwater and leachate monitoring frequency from quarterly to semiannually. Surface water and sediment sampling of the unnamed stream were eliminated in 2000 due to the inability to detect site-related contaminants over a two-year period, as documented in the Two-Year Ground Water Monitoring Report approved by the Agencies in November 2000. Under the terms of a Consent Order signed on March 28, 2005 between the WDNR and Menard, Inc., and with the concurrence of EPA, the frequency of groundwater and leachate monitoring was further reduced from semiannually to annually.

Since June 1993, a deed restriction has been in effect for this Site. The deed restriction, specified in the 1991 ROD, prohibits certain activities within the fill area on the Site. These activities include: no consumptive or other use of the groundwater underlying the property; no use of, or activity at, the property that may interfere with the work performed or to be performed under the UAO at the Site, or any activity which may damage any RA component contracted for or installed pursuant to the UAO or otherwise impair the effectiveness of any work to be performed pursuant to the UAO; no installation, construction, removal or use of any buildings, wells, pipes, roads, ditches or any other landfill cap except as approved by the EPA as consistent with the UAO and SOW; and, no residential use of the property.

During the O&M phase, some modifications have occurred in the vicinity of the FDDS. On July 24, 2001, EPA and WDNR rescinded portions of the existing deed restrictions on the private property adjacent to the Site, thereby allowing commercial development of the property outside the Site boundary fencing, as appropriate. These areas had previously been considered buffer areas around the Site; however, due to the stable Site conditions, the agencies have allowed limited development in these areas. This development is consistent with current Site conditions and has not caused storm water management or unauthorized Site access problems to develop. This area of the City of Franklin is considered to be an active commercial district and future development will likely occur in the vicinity of the FDDS. The Final Close-Out Report, signed August 8, 2003, documented that Menard, Inc. completed all response actions for the FDDS in accordance with OSWER Directive 9320.2-09A-P, Close Out Procedures for National Priorities List Sites, January 2000, as overseen by EPA and WDNR. The WDNR will continue to oversee and ensure the performance of O&M activities at the Site by Menard, Inc. using the provisions of its March 28, 2005 Consent Order with Menard, Inc. This oversight will continue for the remaining 22 years of the 30-year O&M phase or until such time as the WDNR determines that the annual groundwater and leachate monitoring requirements may be modified or terminated.

The first statutory five-year review for the Site was completed by EPA on September 14, 1998 pursuant to CERCLA section 121 (C) and as provided in OSWER Directive 93 55.7-02, Structure and Components of Five-Year Reviews, May 23, 1991. This review was completed five years from the date (September 1993) on which the first contract was awarded by the responsible parties to implement RA.

The second statutory five-year review was completed by EPA on September 25, 2003, about five years from the date of completion of the first five-year review. This review was prepared according to OSWER Directive No. 9355.7-03B-P (EPA 540-R-01-007), Comprehensive Five-Year Review Guidance, June 2001.

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

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

Because EPA considers this action to be noncontroversial and routine, EPA is taking it without prior publication of a notice of intent to delete. This action will be effective September 6, 2005 unless EPA receives adverse comments by August 5, 2005 on a parallel notice of intent to delete published in the Proposed Rule section of today's Federal Register. If adverse comments are received within the 30-day public comment period on the proposal, EPA will publish a timely withdrawal of this direct final notice of deletion before the effective date of the deletion and it will not take effect and, EPA will prepare a response to comments and continue with the deletion process on the basis of the notice of intent to delete and the comments already received. There will be no additional opportunity to comment.

In its Data Collection Order, the Commission revised the information collection requirements for FCC Form 477 (69 FR 77912, December 29, 2004). The revisions extend and modify the FCC Form 477 local competition and broadband data gathering program, established by the Commission's Data Gathering Order (65 FR 19675, April 12, 2000). In the Data Collection Order, the Commission stated that the revised information collection requirements had not been approved by OMB. It indicated that the amended rules implementing the revised information collection would become effective only upon OMB approval of the revised information collection. It stated that it would publish a document in the Federal Register announcing the effective date.

OMB approved the revised information collection on May 26, 2005. Accordingly, through this document, the Commission announces that May 26, 2005, will function as the effective date of both the revised information collection and the amended rules implementing it. This means that the revised information collection and the amended rules will apply to the Form 477 that entities must file on or before September 1, 2005, reporting data as of June 30, 2005.

Pursuant to the Paperwork Reduction Act of 1995, Public Law 104-13, an agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. Notwithstanding any other provisions of law, no person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a valid control number. Questions concerning OMB control numbers and expiration dates should be addressed to Paul J. Laurenzano, Wireline Competition Bureau, at (202) 418-1359 or via the Internet at Paul.Laurenzano@fcc.gov.

This is a summary of the Commission's Report and Order in IB Docket No. 04-226, FCC No. 05-91, adopted April 29, 2005 and released on May 11, 2005. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257). The document is also available for download over the Internet at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-05-91A1.pdf. The complete text may also be purchased from the Commission's copy contractor, Best Copy and Printing, Inc. (BCPI) located in Room CY-B402, 445 12th Street, SW., Washington, DC 20554. Customers may contact BCPI at their Web site: http://www.bcpiweb.com or call 1-800-378-3160.

The Commission initiated a Notice of Proposed Rulemaking in this proceeding (69 FR 48118, August 9, 2004). In response to the Notice of Proposed Rulemaking, on April 29, 2005, the Commission adopted a Report and Order adopting the proposals contained in the Notice of Proposed Rulemaking. The new rules will mandate electronic filing of applications and other submissions related to the provision of international telecommunications services. Over the years, the Commission has introduced a number of electronic filing systems that a large and growing number of applicants are using to file their applications. For international services, filers submit applications and other filings via the International Bureau Filing System (IBFS). In the Report and Order, the Commission required all filings related to international telecommunications services to be submitted via the IBFS.

The mandatory filing requirements will be implemented in stages as new forms are developed for IBFS. This phased-in implementation will allow for the development of additional forms consistent with the rules. The Commission adopted a sixty-day transition period to allow applicants and carriers time to adjust to the new filing requirements. The sixty-day transition period will begin on the effective date of the new rules and will apply to those applications for which electronic forms are currently available. Thereafter, the International Bureau will issue public notices announcing the availability of new forms and the effective date of the electronic filing requirement. At the end of the sixty-day transition period, the Commission will no longer accept filings in a manual format, and the filings will be returned to the applicant without processing.

The Report and Order concluded that mandatory electronic filing will allow applicants to make international filings more rapidly and efficiently. In addition, it will improve the speed and efficiency of application processing, and expedite the availability of the application information for public use and inspection. Also, the Commission concluded that electronic filing would not impose any undue burdens on parties.

The Commission will continue with its policies for the confidential treatment of certain materials. Currently, IBFS does not accommodate confidential filings, but the Commission intends to develop the capability of IBFS to accommodate confidentially filed pleadings and applications.

The Regulatory Flexibility Act of 1980, as amended (RFA), requires that a regulatory flexibility analysis be prepared for any rule making proceeding that requires notice-and-comment, unless the agency certifies that the “rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” ( See 5 U.S.C. 601-612, has been amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), Public Law 104-121, Title II, 110 Stat. 857 (1996).) The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” The term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).

Pursuant to the RFA, the Commission incorporated an Initial Regulatory Flexibility Certification into the Notice of Proposed Rulemaking in the Certification. The Commission tentatively concluded that the proposals contained in the Notice of Proposed Rulemaking were in the public interest and would not impose undue burdens on carriers, small or large. Further, any burdens caused by mandating electronic filing would be offset by the fact that services to the public would likely be expedited. We received no comments on the Notice of Proposed Rulemaking or the Initial Regulatory Flexibility Certification.

In the Report and Order, the Commission adopted mandatory electronic filing for applications and other filings associated with international telecommunications services. Mandatory electronic filing is in the public interest and will not impose undue burdens on a significant number of small entities that are now required to file for international telecommunications services. Further, the processing of these filings will be expedited by mandatory electronic filing.

We certify that the requirements of the Report and Order will not have a significant economic impact on a substantial number of entities.

Report to Congress: The Commission will send a copy of the Order, including a copy of the Final Regulatory Flexibility Certification, in a report to Congress. In addition, the Commission will send a copy of the Order, including a copy of the Final Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the SBA. A copy of the Order and Final Regulatory Flexibility Certification will also be published in the Federal Register.

This Report and Order contains either new or modified information collections subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It has been submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the PRA. OMB, the general public, and other Federal agencies are invited to comment on the modified information collection contained in this proceeding. ( See 69 FR 48188, August 9, 2004) In addition, we note that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, ( see 44 U.S.C. 3506 (c)(4)), the Commission previously sought specific comment on how the Commission might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”

In the Report and Order, we assessed the effects of mandatory electronic filing of all applications and other filings related to international services. Mandatory electronic filing will allow all applicants, including small entities, to make filings more rapidly and efficiently. The Report and Order also provides for a transition period that will allow all applicants and carriers to adjust to the new rules. Finally, the Report and Order permits an applicant to seek a waiver of the rules in the limited instances where electronic filing may be burdensome.

All comments regarding the requests for approval of the information collection should be submitted to Judith B. Herman, Federal Communications Commission, Room 1-C804, 445 12th Street, SW., Washington, DC 20554, or via the Internet to Judith-B.Herman@fcc.gov; phone 202-418-0214.

It is ordered that, pursuant to sections 1, 4(i)-4(j), 201-205, 211, 214, 219-220, 303(r), 309 and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i)-154(j), 201-205, 211, 214, 219-220, 303(r), 309, 403, the policies, rules and requirements discussed herein are adopted and parts 1, 63, and 64 of the Commission's rules, 47 CFR 1, 63, and 64 are amended.

It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Report and Order, including the Final Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business Administration in accordance with section 603(a) of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq.

It is further ordered that the policies, rules and requirements established in this decision shall take effect August 5, 2005 except for those policies, rules and requirements which contain information requirements that have not yet been approved by the Office of Management and Budget (OMB).

This is a summary of the Commission's Report and Order, ET Docket No. 05-24, FCC 05-121, adopted June 9, 2005, and released June 9, 2005. The full text of this document is available on the Commission's Internet site at http://www.fcc.gov . It is also available for inspection and copying during regular business hours in the FCC Reference Center (Room CY-A257), 445 12th Street, SW., Washington, DC 20554. The full text of this document also may be purchased from the Commission's duplication contractor, Best Copy and Printing Inc., Portals II, 445 12th St., SW., Room CY-B402, Washington, DC 20554; telephone (202) 488-5300; fax (202) 488-5563; e-mail FCC@BCPIWEB.COM.

The Commission will send a copy of this Report & Order, in a report to be sent to Congress and the General Accounting Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

1. In the Report and Order (R&O), the Commission modified the schedule by which new broadcast television receivers with screen sizes 25-36″ are required to include the capability to receive over-the-air digital television (DTV) broadcast signals. This provision of the rules is an element of the Commission's phase-in plan for requiring that all new broadcast television receivers include DTV reception capability. The DTV reception requirement, which is also often termed the “DTV tuner requirement,” is being implemented by applying the requirement first to large screen receivers and then progressively to smaller screen units and other devices over a period of several years. The decision maintains the existing plan to require that 50 percent of 25-36″ receivers that are imported or shipped in interstate commerce include DTV tuners beginning July 1, 2005, but modifies the date on which 100 percent of such receivers must include DTV tuners by advancing that date from July 1, 2006, to March 1, 2006. The action was initiated in response to a Petition for Rulemaking from the Consumer Electronics Association and the Consumer Electronics Retailers Association (CEA-CERC) requesting that we eliminate the 50 percent requirement for the 25-36″ mid-size receivers and instead advance the date by which 100 percent of these receivers would include DTV tuners to March 1, 2006. While we understand CEA-CERC's concern that the 50 percent requirement may have posed some difficulties for manufacturers and retailers, we nonetheless concluded that maintaining this approach for the mid-size 25-36″ receivers prior to March 1, 2006, will most effectively ensure that DTV tuner equipped sets are available to consumers this year, and especially for the 2005 holiday and 2006 Super Bowl seasons. In this regard, we continue to believe that it is essential that DTV reception capability be provided to consumers in new TV receivers as rapidly as possible in order to promote an expeditious completion of the transition from analog to digital broadcast television service. We also concluded that advancing the date by which all 25-36″ receivers must include DTV reception capability to March 1, 2006, will serve to minimize any difficulties with the 50 percent provision at the earliest practicable date and will also serve to expedite the provision of DTV reception capability to consumers.

2. In their petition for rulemaking, CEA-CERC requested that we eliminate the July 1, 2005, requirement for 50 percent of TV receivers with screen sizes 25-36″ to include DTV reception capability and instead advance from July 1, 2006, to March 1, 2006, the date for all such receivers to include a DTV tuner. CEA-CERC submitted that manufacturers' and retailers' experience with the 50 percent provision for 36″ and larger receivers is that the 50 percent aspect of the phase-in plan is antithetical to the purpose of the DTV tuner requirement. They stated that, in practice, the 50 percent requirement has proven to be unduly disruptive in the marketplace in ways unforeseen and, in fact, threatens to slow, rather than speed, consumer migration to TV receivers with DTV tuners. They indicated that this is because the experience with 36″ and larger sets is that consumers typically choose a lower-priced product with otherwise similar features except for the DTV tuner rather than a set with a DTV tuner. CEA-CERC argued that eliminating the 50 percent rule for 25-36″ receivers and moving up the date for 100 percent compliance by such receivers would better align the policy behind the DTV tuner rule with market forces and consumer expectations.

3. In response to the CEA-CERC petition, we issued a Notice of Proposed Rulemaking (NPRM), 70 FR 13139, March 18, 2005, to consider adjusting the schedule by which new broadcast television receivers with screen sizes 25-36″ are required to include the capability to receive digital television signals. In the NPRM, we requested comment on whether there is need to revise the implementation schedule of the DTV tuner requirement for receivers with screen sizes 25-36″ to address the concerns raised by CEA-CERC and, if so, how that schedule should be revised to achieve our goal that all new television receivers include DTV tuning capability by July 1, 2007. We specifically requested comment on the approach suggested by CEA-CERC whereby the requirement that 50 percent of receivers with screen sizes 25-36″ incorporate a DTV tuner in the period from July 1, 2005, to July 1, 2006, would be eliminated and replaced with a new provision requiring that all receivers with screen sizes 25-36″ be required to include a DTV tuner effective March 1, 2006. We also invited alternative approaches for addressing the market situation described in the CEA-CERC petition and indicated that we intend to consider the full range of options that are consistent with our stated goals. However, we also advised commenting parties that we did not intend to extend the July 1, 2007, date by which all broadcast television receivers include DTV reception capability.

4. After review of the record in this proceeding, we conclude that while the partial production elements of our DTV tuner implementation plan may have caused some confusion in the market, that approach remains workable and will best serve to ensure that DTV tuner equipped receivers in the 25-36″ mid-size range are available to consumers until the 100 percent DTV tuner requirement goes into effect for these receivers. We also find that it is in the interests of consumer electronics manufacturers and retailers and consistent with our goals as stated above to advance the 100 compliance date for mid-size receivers from July 1, 2006, to March 1, 2006.

5. With regard to the 50 percent provision, we find that postponing application of the DTV tuner requirement to the 25-36″ receivers until March 1, the earliest date on which manufacturers state that they can meet the 100 percent requirement, would unacceptably delay the general availability of DTV reception capability in these products. While eliminating the 50 percent requirement for mid-size receivers until the 100 percent compliance requirement becomes effective might be more convenient for manufacturers and retailers, such an approach would also delay the wider dissemination of DTV tuners in products of this size range. It remains our intent that the implementation schedule aim for the most rapid introduction of DTV reception capability in this size range and indeed all new television receivers. Postponing the requirement for inclusion of DTV tuners in mid-size TV sets would be inconsistent with our efforts to advance the DTV transition as rapidly as possible. Our intent is to stem the flow of analog-only products as soon as possible for, every analog-only TV set sold is a blow to the DTV transition.

6. Initiating the DTV tuner requirement for mid-size receivers on March 1, 2006, the date that CEA-CERC and manufacturers submit is the earliest feasible time by which manufacturers could meet the 100 percent compliance requirement, would undermine our goal of the most rapid introduction of DTV reception capability. The full eight months delay in which no mid-size TV sets would be required to include DTV tuners under that approach would miss the entire holiday and Super Bowl seasons this fall and next winter. Similarly, postponing the initiation of the 50 percent requirement until November 1, 2005 as suggested by CEA-CERC in their ex parte letter would miss the summer and most of the fall season and would also allow a large number of analog tuners to enter retailers' inventories for sale just before the holiday season. Moreover, consumers who purchase new receivers in the coming holiday and Super Bowl seasons would not likely return to the market again to purchase a new receiver for several years and so would be without a DTV tuner equipped device until they purchased a new set or until they obtained a separate set-top DTV tuner unit.

7. We recognize that there are DTV tuner-equipped mid-size TV receivers on the market now and that if we were to eliminate the 50 percent requirement in favor of a delayed 100 percent requirement there would still be DTV tuner equipped sets for consumers to acquire. Nonetheless, we expect that the quantity of DTV tuner equipped sets sold under that approach would be significantly lower than that under the 50 percent approach, given manufacturers' and retailers' description of the market. We also believe that it would further consumer awareness if manufacturers and retailers would provide point-of-sale and other marketing information to consumers and/or clearly label new television sets to indicate whether they can receive off-the-air DTV signals or only off-the-air analog signals. We believe that such efforts would result in more informed consumer choices about whether to buy DTV tuner equipped sets. We therefore encourage manufacturers and retailers to clearly label and identify the tuning capabilities of new TV sets and/or employ other means to disseminate to consumers information regarding whether or not specific models are able to receive off-the-air digital television signals.

8. With respect to the 100 percent compliance date, we conclude that it will ameliorate the concern of the consumer electronics manufacturers and retailers and further our goal of promoting DTV reception availability to advance the date on which 100 percent of 25-36″ receivers will be required to include a DTV tuner to March 1, 2006. Manufacturers have indicated that they will be able to equip 100 percent of new mid-size TV sets with DTV tuners by this date and both manufacturers and retailers support changing the 100 percent compliance date as a step to minimize the difficulties posed by the 50 percent requirement. We do not believe it would be feasible or practicable to advance the 100 percent requirement to a date earlier than that suggested by CEA-CERC. We recogniz manufacturers' arguments that the lead time associated with development of new products, and particularly the time needed to establish specifications, change manufacturing lines, and order parts, would not allow the industry generally to meet a 100 percent compliance requirement before March 1, 2006. It makes little sense to require products to be on the market before the general population of manufacturers can deliver them. As many commenting parties observe, if manufacturers were not able to meet our deadline, they might cease production of mid-range sets or switch to monitor products that do not include TV tuners. Such a result would be disruptive to our goal of ensuring that consumers are able to receive DTV signals and could serve to delay the DTV transition. Accordingly, we are maintaining the provision of the current rules requiring that 50 percent of 25-36″ television receivers include DTV tuners effective July 1, 2005, and advancing the date on which 100 percent of such receivers must include DTV tuners to March 1, 2006.

9. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), 1 an Initial Regulatory Flexibility Analysis (IRFA) was incorporated into the Notice of Proposed Rulemaking (NPRM) in ET Docket No. 05-24. The Commission sought written public comment on the proposals on the NPRM concerning modification of the plan for applying the DTV tuner requirement to TV receivers with screen sizes 25-36″, including comment on the IRFA. This Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA. 2

10. As described in the NPRM, the changes to the rules considered in this proceeding are intended to ensure a smooth transition of the nation's television system to digital television. Beginning in 1987, the Commission undertook to bring the most up-to-date technology to broadcast television. 3 That effort resulted in several Commission decisions, including those adopting a digital television (DTV) standard, 4 DTV service rules, 5 and a Table of DTV Allotments. 6 The Table of DTV Allotments provides each existing television broadcaster with a second channel on which to operate a DTV station for a transition period in which stations will operate both analog and digital TV service, after which analog service will cease and one of each station's two channels will revert to the government for use in other services. The transition deadline established by Congress is December 31, 2006.

11. Consistent with its efforts to promote the expeditious completion of the DTV transition, the Commission adopted a requirement that all new television receivers imported or shipped in interstate commerce after July 1, 2007, include the capability to receive DTV signals off-the-air. In order to minimize the impact of the DTV tuner requirement on both manufacturers and consumers, the Commission adopted a phase-in schedule that applies the DTV tuner requirement first to receivers with the screens and then to progressively smaller screen receivers and other TV receiving devices. The Consumer Electronics Association and the Consumer Electronics Retailers Coalition (CEA-CERC) submitted a petition for rule making requesting that the Commission eliminate the portion of the phase-in schedule requiring that 50 percent of TV receivers with screen sizes 25-36″ include DTV reception capability from July 1, 2005, to July 1, 2006, and instead advance the date for requiring all such receivers to include a DTV tuner to March 1, 2006, from July 1, 2006. CEA-CERC argued that the 50 percent requirement has proven to be disruptive to the market in the case of larger screen receivers. We are issuing this Report and Order to modify the portion of the DTV tuner requirement phase-in plan that applies to receivers with screen sizes 24″ to 36″. Specifically, we are amending the rules to advance the date on which all 24-36″ receivers must include a DTV tuner to March 1, 2006, from the current date of July 1, 2006. Maintaining the 50 percent requirement for the period from July 1, 2005, to February 28, 2005, and advancing the 100 percent compliance date for mid-size receivers to March 1, 2006, will ameliorate the concerns of the consumer electronics manufacturers and retailers with respect to the 50 percent approach and further our goal of promoting DTV reception availability.

12. No comments were filed in response to the IRFA.

13. The RFA directs the Commission to provide a description of and, where feasible, an estimate of the number of small entities that will be affected by the proposed rules. 7 The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental entity.”. 8 In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. 9 A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA). 10

Electronics Equipment Manufacturers . Rules adopted in this proceeding will apply to manufacturers of DTV receiving equipment and other types of consumer electronics equipment. The SBA has developed definitions of small entity for manufacturers of audio and video equipment  11 as well as radio and television broadcasting and wireless communications equipment. 12 These categories both include all such companies employing 750 or fewer employees. The Commission has not developed a definition of small entities applicable to manufacturers of electronic equipment used by consumers, as compared to industrial use by television licensees and related businesses. Therefore, we will utilize the SBA definitions applicable to manufacturers of audio and visual equipment and radio and television broadcasting and wireless communications equipment, since these are the two closest NAICS Codes applicable to the consumer electronics equipment manufacturing industry. However, these NAICS categories are broad and specific figures are not available as to how many of these establishments manufacture consumer equipment. According to the SBA's regulations, an audio and visual equipment manufacturer must have 750 or fewer employees in order to qualify as a small business concern. 13 Census Bureau data indicates that there are 554 U.S. establishments that manufacture audio and visual equipment, and that 542 of these establishments have fewer than 500 employees and would be classified as small entities. 14 The remaining 12 establishments have 500 or more employees; however, we are unable to determine how many of those have fewer than 750 employees and therefore, also qualify as small entities under the SBA definition. Under the SBA's regulations, a radio and television broadcasting and wireless communications equipment manufacturer must also have 750 or fewer employees in order to qualify as a small business concern. 15 Census Bureau data indicates that there are 1,215 U.S. establishments that manufacture radio and television broadcasting and wireless communications equipment, and that 1,150 of these establishments have fewer than 500 employees and would be classified as small entities. 16 The remaining 65 establishments have 500 or more employees; however, we are unable to determine how many of those have fewer than 750 employees and therefore, also qualify as small entities under the SBA definition. We therefore conclude that there are no more than 542 small manufacturers of audio and visual electronics equipment and no more than 1,150 small manufacturers of radio and television broadcasting and wireless communications equipment for consumer/household use.

Computer Manufacturers . The Commission has not developed a definition of small entities applicable to computer manufacturers. Therefore, we will utilize the SBA definition of electronic computers manufacturing. According to SBA regulations, a computer manufacturer must have 1,000 or fewer employees in order to qualify as a small entity. 17 Census Bureau data indicates that there are 563 firms that manufacture electronic computers and of those, 544 have fewer than 1,000 employees and qualify as small entities. 18 The remaining 19 firms have 1,000 or more employees. We conclude that there are approximately 544 small computer manufacturers.

14. The rule changes adopted in the Report and Order impose no additional recordkeeping or recordkeeping requirements on manufacturers of television receiving equipment, large or small. While the modifications adopted therein may have a small impact on consumer electronics manufacturers, any such impact would be similar for both large and small entities.

15. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities. 19

16. The modification of the provisions for implementing the DTV tuner requirement in TV receivers with screen sizes in the 25-36″ mid-size range set forth herein are intended to ameliorate certain market difficulties described by consumer electronics manufacturers and consumer electronics products retailers and to expedite the availability of DTV tuners in new mid-size television receivers that are offered to consumers. The revisions adopted preserve the requirement for DTV tuners in 50 percent of the new mid-size range of receivers for the period July 1, 2005, to February 28, 2005, in order to ensure that such receivers are available as soon as possible and particularly during the 2005 holiday season and 2006 Super Bowl season. The consumer electronics industry has indicated that it prefers the 100 percent requirement to become effective on March 1, 2006, rather than the original July 1, 2006, date. Advancing the date for 100 percent compliance by mid-size receivers will ameliorate the challenges of the 50 percent provision for manufacturers and retailers and will also serve to promote the availability of DTV tuner equipped TV sets to consumers.

17. Other approaches considered included various suggestions by broadcasters and others to advance the deadline for DTV tuners in 25-36″ sets to dates between November 1, 2005, and January 1, 2005. We rejected the options to advance the 100 percent requirement to a date earlier than March 1, 2006, on the basis that the 5 to 6 month lead-times available to manufacturers under those scenarios would be too short for manufacturers to meet with new products, especially given the lead-times associated with obtaining parts and components from suppliers. Extending the deadline beyond March 1, 2006, would be inconsistent with the need to expedite the DTV transition.

18. The Commission will send a copy of the Report and Order, including this FRFA, in a report to Congress pursuant to the Congressional Review Act. 20 In addition, the Commission will send a copy of the Report and Order, including the FRFA, to the Chief Counsel for Advocacy of the SBA. 21

19. Pursuant to the authority contained in sections 2(a), 4(i) & (j), 7, 151 and 303 of the Communications Act of 1934 as amended, 47 U.S.C. 152(a), 154(i) & (j), 151, 157, and 303, this Report and Order is adopted and the Commission's rules are hereby amended as set forth in Rule Changes, and shall become effective August 5, 2005.

20. The Petition for Rulemaking submitted by the Consumer Electronics Association and the Consumer Electronics Retailers Association in this matter on November 5, 2004, is denied in part and is granted in part as indicated in the Report and Order.

21. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration, 22 to Congress and the General Accounting Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

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

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

FRA is authorized as the delegate of the Secretary of Transportation to enforce the Federal railroad safety statutes and regulations, including the civil penalty provisions at 49 U.S.C. ch. 213. 49 CFR 1.49; 49 U.S.C. ch. 201-213. FRA currently has 27 regulations that contain provisions that reference its authority to impose civil penalties if a person violates any requirement in the pertinent portion of a statute or the Code of Federal Regulations. In this final rule, FRA is retracting its June 8, 2005 amendments to each of those separate regulatory provisions and the corresponding footnotes in each Schedule of Civil Penalties that raised the ordinary maximum CMP from $11,000 to $15,000. The ordinary maximum CMP should remain at $11,000, as shown below:

The June 2004 CPI of 568.2 divided by the June 1998 CPI of 488.2 equals an inflation factor of 1.164; $11,000 multiplied by 1.164 equals $12,804, or an increase of $1,804. The increase of $1,804 is then rounded to the nearest multiple of $5,000, which in this case is $0. Thus, the ordinary maximum will remain at $11,000. In the final rule, 70 FR 33380, FRA erroneously rounded to the nearest multiple of $5,000 the amount of $12,804, instead of the increased amount ($1,804) as required by the Inflation Act.

In consideration of the foregoing, the final rule published on June 8, 2005 at 70 FR 33380 is hereby withdrawn.

I. Background

On September 27, 1993, NHTSA published a Notice of Proposed Rulemaking (NPRM) proposing several amendments to its regulations (49 CFR parts 573 and 577) concerning manufacturers' obligations to provide notification and remedy for motor vehicles and items of motor vehicle equipment found to contain a defect related to motor vehicle safety or a noncompliance with a Federal motor vehicle safety standard (58 FR 50314). On April 5, 1995, we issued a final rule (60 FR 17254) addressing most aspects of that NPRM, and on January 4, 1996, we amended several provisions of that final rule in response to petitions for reconsideration of that rule (61 FR 274). However, the agency did not promulgate regulations on dealer notification in the 1995 or 1996 rulemakings because we had not resolved the issues raised by the comments submitted in response to the NPRM.

In the NPRM, we proposed to require manufacturers to notify their dealers and distributors  1 of safety-related defects and noncompliances in their motor vehicles and equipment within five days after notifying the agency of their determination of a safety defect or noncompliance pursuant to 49 CFR part 573, Defect and Noncompliance Reports. In a May 19, 1999 supplemental notice of proposed rulemaking (SNPRM), NHTSA proposed a different approach (64 FR 27227). Rather than specify a particular time period, we proposed to require manufacturers to notify dealers within a reasonable time in accordance with a schedule that is to be submitted to the agency with the manufacturer's defect or noncompliance information report required by 49 CFR § 573.6 (this section was codified as § 573.5 prior to August 9, 2002). NHTSA published the final rule on June 23, 2004 (69 FR 34954). It adopted the proposal in the SNPRM for dealer notification within a reasonable time after the manufacturer decides that a defect that relates to motor vehicle safety or a noncompliance exists. 49 CFR 577.7(c)(1). In addition, the final rule established that, if the agency were to find that the public interest requires dealers to be notified at an earlier date than that proposed by the manufacturer, the manufacturer would have to notify its dealers in accordance with the agency's directive. Id. Finally, the final rule adopted the proposal in the SNPRM requiring that the dealer notification contain certain information and described the manner in which such notification is to be accomplished. 49 CFR 577.7(c) and 577.13.

In response to the final rule, the agency received four petitions for reconsideration. Two joint petitions were received: Public Citizen (PC) and the Center for Auto Safety (CAS) (collectively PC/CAS) and Motor and Equipment Manufacturers Association (MEMA) and the Automotive Aftermarket Suppliers Association (AASA) (collectively MEMA/AASA). The Juvenile Products Manufacturers Association, Inc. (JPMA) and General Motors Corporation (GM) filed separate petitions.

PC/CAS objected to the provision allowing notification of dealers within a reasonable time and argued that the five-day period proposed in the NPRM should be instituted. GM asked the agency to clarify that manufacturers are required to verify that they sent the dealer notifications, rather than that the notifications were actually received by their dealers. MEMA/AASA, JPMA, and GM objected to the inclusion of a provision in the final rule on manufacturers' notification of offers to repurchase equipment in dealer inventory.

The issues raised by the petitioners are addressed below.

Under 49 U.S.C. 30118(c), a manufacturer of motor vehicles or replacement equipment must notify NHTSA and owners, purchasers, and dealers of the vehicle or equipment as provided by 49 U.S.C. 30119(d) if the manufacturer learns that the vehicle or equipment contains a defect and decides in good faith that the defect is related to motor vehicle safety, or does not comply with an applicable federal motor vehicle safety standard. This notification must be accomplished within a reasonable time after the manufacturer first decides that a safety-related defect or noncompliance exists under 49 U.S.C. 30118(c). 49 U.S.C. 30119(c)(2). Similarly, if NHTSA decides, pursuant to 49 U.S.C. 30118(b), that the vehicle or equipment contains a safety-related defect or does not comply with an applicable standard, the Administrator is required to order the manufacturer to notify owners, purchasers, and dealers of vehicle or equipment of the defect or noncompliance. In these instances, notification is to be given within a reasonable time prescribed by NHTSA. 49 U.S.C. 30119(c)(1).

In addition to statutory requirements, NHTSA regulations delineate various aspects of manufacturers' notification obligations. For over 30 years, 49 CFR part 573, Defect and Noncompliance Responsibility and Reports, has set forth requirements for manufacturers' notification of NHTSA of a safety-related defect or noncompliance. In addition, 49 CFR part 577, Defect and Noncompliance Notification, has set out requirements for manufacturers' notification of owners of motor vehicles and motor vehicle equipment of a safety defect or noncompliance.

The September 1993 NPRM proposed that manufacturers conducting safety recalls provide their dealers with a document that contained the information set forth in the report submitted to the agency pursuant to 49 CFR part 573, within five working days after submitting the report to NHTSA.

A large number of parties commented on the dealer notification proposal in the NPRM, including manufacturer and dealer associations, individual manufacturers, and Advocates for Highway and Auto Safety. All manufacturing and dealer entities objected to the proposed five-day dealer notification requirement. Those objecting included Toyota Motor Corporate Services of North America, Inc. (Toyota), Volkswagen of America, Inc. (VWoA), Chrysler Corporation (Chrysler), American Automobile Manufacturers Association (AAMA), Association of International Automobile Manufacturers (AIAM), National Automobile Dealers Association (NADA), and five heavy truck manufacturers.

The manufacturer and dealer commenters explained the procedure for dealer notification in operation for almost two decades since the enactment of the 1974 Amendments to the National Traffic and Motor Vehicle Safety Act (Safety Act). 88 Stat. 1470 et seq. In essence, under the operating procedure, manufacturers provided notice to dealers within a reasonable time after deciding that there was a safety-related defect or noncompliance. As the commenters pointed out, this procedure was working well and there was no need for the proposed five-day dealer notification period. The heavy truck manufacturers maintained that manufacturers act responsibly without the five-day rule, citing as an example a steering gear recall, in which the affected manufacturers notified dealers within one day of the defect determination and advised drivers to park their trucks.

AAMA and NADA emphasized the statutory basis of dealer notification. They explained that section 153(b) of the Safety Act, as amended, (which has been recodified in 49 U.S.C. 30119(c)  2 ) requires provision of notice of a safety-related defect to a dealer within a reasonable time after the determination of a defect. They argued that the reasonable time concept allows flexibility by taking into account the differing circumstances and complexities of any particular remedy program. Chrysler argued that circumstances requiring early notification can be taken care of in the present framework by the agency reviewing the issue with the manufacturer and resolving it based upon the reasonable time requirement.

NMFS manages the groundfish fishery in the BSAI according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The 2005 “other flatfish” TAC in the BSAI is 4,375 metric tons (mt) as established by the 2005 and 2006 final harvest specifications for groundfish in the BSAI (70 FR 8979, February 24, 2005) and the apportionment from the non-specified reserve of groundfish to “other flatfish” in the BSAI, effective July 6, 2005, published in the Rules section of today's Federal Register .

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS, has determined that the 2005 “other flatfish” TAC in the BSAI will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 3,375 mt, and is setting aside the remaining 1,000 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for “other flatfish” in the BSAI.

After the effective date of this closure the maximum retainable amounts at §§ 679.20(e) and (f) apply at any time during a trip.

“Other flatfish” consists of all flatfish species, except for Pacific halibut, flathead sole, Greenland turbot, rock sole, yellowfin sole, arrowtooth flounder, and Alaska plaice.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of “other flatfish” in the BSAI.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.

NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The 2005 ITAC of “other flatfish” in the BSAI was established as 2,975 metric tons by the 2005 and 2006 final harvest specifications for groundfish in the BSAI (70 FR 8979, February 24, 2005). The Administrator, Alaska Region, NMFS, has determined that the ITAC for “other flatfish” in the BSAI needs to be supplemented from the non-specified reserve in order to continue operations.

Therefore, in accordance with § 679.20(b)(3), NMFS apportions 1,400 metric tons from the non-specified reserve of groundfish to the “other flatfish” ITAC in the BSAI. This apportionment is consistent with § 679.20(b)(1)(ii) and does not result in overfishing of a target species because the revised ITAC is equal to or less than the specification of the acceptable biological catch (70 FR 8979, February 24, 2005).

“Other flatfish” consists of all flatfish species, except for Pacific halibut, flathead sole, Greenland turbot, rock sole, yellowfin sole, arrowtooth flounder, and Alaska plaice.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA) finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) and 679.20(b)(3)(iii)(A) as such a requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the apportionment of the non-specified reserves of groundfish to the “other flatfish” fishery. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of June 16, 2005.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

Under 679.20(b)(3)(iii), interested persons are invited to submit written comments on this action (see ADDRESSES ) until July 15, 2005.

This action is required by 50 CFR 679.20 and is exempt from review under Executive Order 12866.