This final rule is issued under Marketing Order No. 983 (7 CFR part 983), regulating the handling of pistachios grown in California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

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

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

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

This final rule establishes reporting requirements authorized under the California pistachio order. The additional reporting requirements will enable the committee to collect information on: (1) Pistachios failing to meet quality and aflatoxin requirements; (2) failing pistachios that are reworked or disposed under the marketing order; (3) handlers applying for exemptions; (4) transfers of uninspected pistachios between regulated handlers; and (5) inventories and shipments of pistachios.

Sections 983.38, 983.39, and 983.40 of the pistachio order specify maximum aflatoxin requirements, minimum quality requirements, and failed lot rework and disposition procedures, respectively.

Sections 983.41 of the pistachio order provides exemptions for certain aflatoxin and quality testing requirements for handlers who handle less than 1,000,000 pounds of assessed weight pistachios per marketing year (September 1-August 31).

Section 983.47 of the pistachio order provides authority to require handlers to furnish such reports and information on such forms as are needed to enable USDA and the committee to perform their functions and enforce order provisions.

Section 983.70 of the pistachio order exempts handlers who handle 1,000 pounds or less of dried weight pistachios (dried to 5 percent moisture) from all aflatoxin and minimum quality requirements.

Under these authorities, the committee, at its November 3, 2004, meeting unanimously recommended establishing a new subpart “Rules and Regulations,” and a new section entitled “§ 983.147—Reports” to delineate and define six new forms, ACP-2 through ACP-7. The committee further clarified this recommendation at its December 15, 2004, meeting.

Detailed information on the burdens created by these new forms is discussed later in this document.

The recommended forms, ACP-2 through ACP-7, will be used by the committee to track pistachios that fail to meet minimum quality and maximum aflatoxin requirements (ACP-2); track lots which have been reworked or disposed of in accordance with marketing order requirements (ACP-3); identify handlers who handle 1,000 dried pounds or less of pistachios per production year (September 1-August 31) (ACP-4) and properly apply marketing order exemptions; identify handlers who handle less than 1,000,000 pounds of assessed weight pistachios per marketing year (September 1-August 31) (ACP-5) and properly apply marketing order exemptions; track uninspected pistachios that are transferred between regulated handlers (ACP-6); and track monthly shipments and handler inventories (ACP-7).

The majority of the forms recommended by the committee (ACP-2 through APC-6) are new reporting requirements, and do not duplicate information collected by any other Federal agency. One form, ACP-7 is similar to a report required by the California Pistachio Commission (commission), a program overseen by the State of California, under which California pistachio research and promotion activities are implemented. Because the commission is prohibited from sharing confidential handler information, the committee recommended the ACP-7 be implemented for committee use to provide information necessary to administer the order. Because shipment and inventory data is already compiled by handlers for the commission, handlers may attach the commission report to the committee form to meet this new reporting requirement. Thus, handlers will not be duplicating their efforts and both agencies would receive necessary data for respective program purposes. Further, the information collection does not duplicate that collected by any other Federal agency.

The committee estimates that this action will impact no more than 24 handlers of pistachios, and further estimates that, on average, a handler will expend no more than an average of 11.8 minutes in completing each form. The total estimated annual burden for all six forms is estimated to be 92.4 hours.

The committee believes that these forms are easy to prepare and file, and place as small a reporting burden as possible on handlers. These forms and their respective burdens were discussed at public meetings at which all affected entities were encouraged to comment on the effect of requiring these forms to be completed and filed by pistachio handlers. The committee vote was unanimous, with 8 in favor and none opposed or abstaining.

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

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

There are approximately 24 handlers of California pistachios subject to regulation under the order and approximately 741 producers in the production area. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $6,000,000. Seven of the 24 handlers subject to regulation have annual pistachio receipts of at least $6,000,000. In addition, 722 producers have annual receipts less than $750,000. Thus, the majority of handlers and producers of California pistachios may be classified as small entities. There are an estimated nine USDA approved testing laboratories that may participate in this program. Five of these laboratories are handler in-house operations and already included in the estimated respondents. Other testing laboratories are government agencies. There are two other existing laboratories. One is part of the Dried Fruit Association of California and the other is a private laboratory operated by Am Cal Analytical Laboratories. We believe that this association and private laboratory would be considered small entities.

This final rule establishes reporting requirements authorized under the California pistachio order. These additional reporting requirements will enable the committee to collect information on: (1) Pistachios failing to meet quality and aflatoxin requirements; (2) failing pistachios that are reworked or disposed of in marketing order requirements; (3) handlers applying for exemptions; (4) transfers of uninspected pistachios between regulated handlers; and (5) inventories and shipments of pistachios.

Sections 983.38, 983.39, and 983.40 of the pistachio order provide maximum aflatoxin requirements, and minimum quality requirements, and failed lot rework and disposition procedures, respectively.

Sections 983.41 of the pistachio order provides exemptions for certain aflatoxin and quality testing requirements for handlers who handle less than 1,000,000 pounds of assessed weight pistachios per marketing year (September 1-August 31).

Section 983.47 of the pistachio order provides authority for the committee to require handlers to furnish such reports and information on such forms as are needed to enable the Secretary of Agriculture and the committee to perform their functions and enforce order provisions.

Section 983.70 of the pistachio order exempts handlers who handle 1,000 pounds or less of dried weight pistachios during any marketing year (dried to 5 percent moisture) from all aflatoxin and minimum quality requirements.

Under these authorities, the committee, at its November 3, 2004, meeting, unanimously recommended establishing a new subpart “Rules and Regulations,” and a new section entitled “§ 983.147—Reports” to delineate and define six new forms, ACP-2 through ACP-7. The committee further clarified this recommendation at its December 15, 2004, meeting.

The majority of the reports recommended by the committee are new reporting requirements (ACP-2 through ACP-6). One form, ACP-7 is similar to a report required by the commission, a program overseen by the State of California, under which California pistachio research and promotion activities are implemented.

The committee debated the overall merits of the forms at its meetings, deliberating over the value of the information to be collected relative to the burden which each form would impose on the regulated handlers. In the end, the committee concluded that the information that will be collected is necessary to properly administer the marketing order. It further concluded that the burden was relatively small compared to the benefits that will be accrued by the committee and industry from the information obtained.

The committee discussed alternatives to establishing these reporting requirements including not adopting ACP-4, as it was believed that this information might be obtained by staff during compliance audits. Upon reviewing the auditing procedure, committee members determined that utilization of the ACP-4 will be a more feasible means of obtaining information on identifying exempt handlers. Thus, the committee unanimously recommended all six forms for implementation. It believes that the information to be provided on each of the recommended forms will be important to the administration of the order and will enhance committee operations.

Further, the committee's meetings were widely publicized throughout the pistachio industry and all interested persons were encouraged to attend the meetings and participate in the committee's deliberations. Like all committee meetings, the November 3 and December 15, 2004, meetings were public meetings and entities of all sizes were invited to express their views on these issues.

A proposed rule concerning this action was published in the Federal Register on March 28, 2005 (70 FR 15602). The proposal also announced AMS's intent to request an approval of a new information collection for the marketing order regulating pistachios grown in California. Copies of the proposal were also mailed or sent via facsimile to all pistachio handlers. Finally, the proposed rule was made available through the Internet by USDA and the Office of the Federal Register. A 60-day comment period ending May 27, 2005, was provided to allow interested persons to respond to the proposal. No comments were received.

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

After consideration of all relevant material presented, including the information and recommendation submitted by the committee and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

It is further found that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register (5 U.S.C. 553) because the committee is required to furnish handlers with one of the forms by July 15. Further, handlers are aware of this rule, which was unanimously recommended at a public meeting. Also, a 60-day comment period was provided for in the proposed rule, and no comments were received.

As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. In addition, as noted in the initial regulatory flexibility analysis, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this final rule. A detailed discussion of the six new forms follows.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the information collection requirements that are contained in this rule were approved by the Office of Management and Budget (OMB), under OMB No. 0581-0230. The information collection has been merged into OMB No. 0581-0215 Pistachios Grown in California, which expires May 31, 2008.

Since publication of the proposed rule on March 28, 2005 (70 FR 15602), the committee has found that the number of respondents (handlers and approved aflatoxin laboratories) has increased from 20 to 25. However, 5 of these 25 respondents will be exempt from filing 5 of the 6 forms, as they handle 1,000 pounds or less and are exempt from handling requirements and most reporting requirements.

In summary, this final rule establishes reporting requirements authorized under the California pistachio order. These additional reporting requirements will enable the committee to collect information on: (1) Pistachios failing to meet quality and aflatoxin requirements; (2) failing pistachios that are reworked or disposed of in accordance with marketing order requirements; (3) handlers applying for exemptions; (4) transfers of uninspected pistachios between regulated handlers; and (5) inventories and shipments of pistachios. Additionally, it will allow the committee to obtain accurate information for preparation of the annual marketing policy statement, as required under the order.

Another form, ACP 1, was not included with this approval request because that form was part of a previous request, published in the Federal Register on March 1, 2005 (70 FR 9843).

Comments Invited

The FAA has determined that notice and opportunity for prior public comment is impracticable because these procedures would significantly delay certification of the airplane and thus delivery of the affected airplanes. In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance; however, we invite interested persons to participate in this rulemaking by submitting written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.

We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning these special conditions. The docket is available for public inspection before and after the comment closing date. If you wish to review the docket in person, go to the address in the ADDRESSES section of this preamble between 7:30 a.m. and 4 p.m., Monday through Friday, except Federal holidays.

We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive.

If you want the FAA to acknowledge receipt of your comments on these special conditions, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.

On March 28, 2005, Envoy Aerospace, 5027 Switch Grass Lane, Naperville, Illinois 60564-5368, applied for a supplemental type certificate (STC) to modify Raytheon Model BH.125 series 400A, DH.125 series 400A, and HS.125 series 400B airplanes. Raytheon Model BH.125 series 400A, DH.125 series 400A, and HS.125 series 400B airplanes are currently approved under Type Certificate No. A3EU. The Raytheon Model BH.125 series 400A, DH.125 series 400A, and HS.125 series 400B airplanes are transport category airplanes powered by two turbofan engines, with maximum takeoff weights of up to 23,600 pounds. These airplanes operate with a 2-pilot crew and can seat up to 8 passengers. The proposed modification includes the incorporation of dual Innovative Solutions and Support Air Data Systems. The avionics installed in these airplanes have the potential to be vulnerable to high-intensity radiated fields (HIRF) external to the airplane.

Under the provisions of 14 CFR 21.101, Envoy Aerospace must show that the Raytheon Aircraft Company Model BH.125 series 400A, DH.125 series 400A, and HS.125 series 400B airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A3EU or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The certification basis for the Raytheon Aircraft Company Model BH.125 series 400A, DH.125 series 400A, and HS.125 series 400B airplanes includes CAR.4b dated December 1953, Amendment 4b-1 through 4b-11, exclusive of CAR 4b.350(e), and includes Special Regulation SR.422B. In addition, the certification basis includes later amended sections of 14 CFR part 25 that are not relevant to these special conditions.

If the Administrator finds that the applicable airworthiness regulations ( i.e. , part 25, as amended) do not contain adequate or appropriate safety standards for the Raytheon Aircraft Company Model BH.125 series 400A, DH.125 series 400A, and HS.125 series 400B airplanes, because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the Raytheon Aircraft Company Model BH.125 series 400A, DH.125 series 400A, and HS.125 series 400B airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.

Special conditions, as defined in 14 CFR 11.19, are issued in accordance with § 11.38 and become part of the type certification basis in accordance with § 21.101.

Special conditions are initially applicable to the model for which they are issued. Should Envoy Aerospace apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. A3EU to incorporate the same or similar novel or unusual design feature, these special conditions would also apply to the other model under the provisions of § 21.101.

As noted earlier, the Raytheon Aircraft Company Model BH.125 series 400A, DH.125 series 400A, and HS.125 series 400B airplanes modified by Envoy Aerospace will incorporate dual Innovative Solutions and Support Air Data Systems that will perform critical functions. These systems may be vulnerable to high-intensity radiated fields external to the airplane. The current airworthiness standards of part 25 do not contain adequate or appropriate safety standards for the protection of this equipment from the adverse effects of HIRF. Accordingly, this system is considered to be a novel or unusual design feature.

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

To ensure that a level of safety is achieved equivalent to that intended by the regulations incorporated by reference, special conditions are needed for the Raytheon Aircraft Company Model BH.125 series 400A, DH.125 series 400A, and HS.125 series 400B airplanes modified by Envoy Aerospace. These special conditions require that new avionics/electronics and electrical systems that perform critical functions be designed and installed to preclude component damage and interruption of function due to both the direct and indirect effects of HIRF.

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

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

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

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

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

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

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

As discussed above, these special conditions are applicable to Raytheon Aircraft Company Model BH.125 series 400A, DH.125 series 400A, and HS.125 series 400B airplanes modified by Envoy Aerospace. Should Envoy Aerospace apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. A3EU, to incorporate the same or similar novel or unusual design feature, these special conditions would apply to that model as well under the provisions of § 21.101.

This action affects only certain novel or unusual design features on Raytheon Aircraft Company Model BH.125 series 400A, DH.125 series 400A, and HS.125 series 400B airplanes modified by Envoy Aerospace. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

The substance of these special conditions has been subjected to the notice and comment procedure in several prior instances and has been derived without substantive change from those previously issued. Because a delay would significantly affect the certification of the airplane, which is imminent, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the supplemental type certification basis for the Raytheon Aircraft Company Model BH.125 series 400A, DH.125 series 400A, and HS.125 series 400B airplanes modified by Envoy Aerospace.

1. Protection from Unwanted Effects of High-Intensity Radiated Fields (HIRF). Each electrical and electronic system that performs critical functions must be designed and installed to ensure that the operation and operational capability of these systems to perform critical functions are not adversely affected when the airplane is exposed to high-intensity radiated fields.

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

The FAA has determined that notice and opportunity for prior public comment is impracticable because these procedures would significantly delay certification of the airplane and thus delivery of the affected aircraft. In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance; however, we invite interested persons to participate in this rulemaking by submitting written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.

We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning these special conditions. The docket is available for public inspection before and after the comment closing date. If you wish to review the docket in person, go to the address in the ADDRESSES section of this preamble between 7:30 a.m. and 4 p.m., Monday through Friday, except Federal holidays.

We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive.

If you want the FAA to acknowledge receipt of your comments on these special conditions, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.

On January 28, 2005, Royal Air, Inc., 2141 Airport Road, Waterford, Michigan 48327, applied for a supplemental type certificate (STC) to modify Dassault Model Fan Jet Falcon, Fan Jet Falcon Series C, D, E, and F airplanes; Model Mystere-Falcon 200 airplanes; and Model Mystere-Falcon 20-C5, 20-D5, 20-E5, and 20-F5 airplanes currently approved under Type Certificate No. A7EU. The Dassault Aviation Falcon series airplanes are small transport category airplanes powered by two turbojet engines, with maximum takeoff weights of up to 18,000 pounds. These airplanes operate with a 2-pilot crew and can seat up to 8 passengers. The proposed modification is the installation of ADDUs and an air data sensor manufactured by Innovative Solutions & Support. The avionics/electronics and electrical systems installed in this airplane have the potential to be vulnerable to high-intensity radiated fields (HIRF) external to the airplane.

Under the provisions of 14 CFR 21.101, Royal Air, Inc. must show that the Dassault Model Fan Jet Falcon, Fan Jet Falcon Series C, D, E, and F airplanes; Model Mystere-Falcon 200 airplanes; and Model Mystere-Falcon 20-C5, 20-D5, 20-E5, and 20-F5 airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A7EU, or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The certification basis for the Dassault Model Fan Jet Falcon and Fan Jet Falcon Series C, D, E, and F airplanes includes the applicable paragraphs of CAR 4b, as amended by Amendments 4b-1 through 4b-12, Special Regulation SR-422B, and 14 CFR part 25 as amended by provisions of Amendment 25-4 in lieu of CAR 4b.350(e) and (f). The certification basis for the Dassault Model Mystere-Falcon 200 airplanes includes the applicable paragraphs of CAR 4b, as amended by Amendments 4b-1 through 4b-12; Special Regulation SR-422B and 14 CFR part 25 as amended by certain sections of Amendments 25-1 through 25-46; SFAR 27 as amended by Amendments 27-1 through 27-3; and 14 CFR part 36 as amended by Amendments 36-1 through 36-12. The certification basis for the Dassault Model Mystere-Falcon 20-C5, 20-D5, 20-E5, and 20-F5 airplanes includes the applicable paragraphs of CAR 4b, as amended by Amendments 4b-1 through 4b-12, Special Regulation SR-422B, and 14 CFR part 25 as amended by certain sections in Amendments 25-1 through 25-56; § 25.904 and Appendix 1 as amended by Amendment 25-62; SFAR 27 as amended by Amendments 27-1 through 27-6; and 14 CFR part 36 as amended by Amendments 36-1 through 36-15. In addition, the certification basis includes certain later amended sections of the applicable part 25 regulations that are not relevant to these special conditions.

If the Administrator finds that the applicable airworthiness regulations ( i.e. , part 25, as amended) do not contain adequate or appropriate safety standards for the Dassault Model Fan Jet Falcon, Fan Jet Falcon Series C, D, E, and F airplanes; Model Mystere-Falcon 200 airplanes; and Model Mystere-Falcon 20-C5, 20-D5, 20-E5, and 20-F5 airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the Dassault Model Fan Jet Falcon, Fan Jet Falcon Series C, D, E, and F airplanes; Model Mystere-Falcon 200 airplanes; and Model Mystere-Falcon 20-C5, 20-D5, 20-E5, and 20-F5 airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.

Special conditions, as defined in 14 CFR 11.19, are issued in accordance with § 11.38 and become part of the type certification basis in accordance with § 21.101.

Special conditions are initially applicable to the model for which they are issued. Should Royal Air, Inc. apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. A7EU to incorporate the same or similar novel or unusual design feature, these special conditions would also apply to the other model under the provisions of § 21.101.

As noted earlier, the Dassault Model Fan Jet Falcon, Fan Jet Falcon Series C, D, E, and F airplanes; Model Mystere-Falcon 200 airplanes; and Model Mystere-Falcon 20-C5, 20-D5, 20-E5, and 20-F5 airplanes modified by Royal Air, Inc. will incorporate ADDUs and an air data sensor manufactured by Innovative Solutions & Support. The ADDUs and air data sensor perform critical functions. These systems may be vulnerable to high-intensity radiated fields external to the airplane. The current airworthiness standards of part 25 do not contain adequate or appropriate safety standards for the protection of this equipment from the adverse effects of HIRF. Accordingly, this system is considered to be a novel or unusual design feature.

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

To ensure that a level of safety is achieved equivalent to that intended by the regulations incorporated by reference, special conditions are needed for the Dassault Model Fan Jet Falcon, Fan Jet Falcon Series C, D, E, and F airplanes; Model Mystere-Falcon 200 airplanes; and Model Mystere-Falcon 20-C5, 20-D5, 20-E5, and 20-F5 airplanes modified by Royal Air, Inc. These special conditions require that new avionics/electronics and electrical systems that perform critical functions be designed and installed to preclude component damage and interruption of function due to both the direct and indirect effects of HIRF.

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

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

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

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

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

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

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

As discussed above, these special conditions are applicable to Dassault Model Fan Jet Falcon, Fan Jet Falcon Series C, D, E, and F airplanes; Model Mystere-Falcon 200 airplanes; and Model Mystere-Falcon 20-C5, 20-D5, 20-E5, and 20-F5 airplanes modified by Royal Air, Inc. Should Royal Air, Inc. apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. A7EU to incorporate the same or similar novel or unusual design feature, these special conditions would apply to that model as well under the provisions of § 21.101.

This action affects only certain novel or unusual design features on Dassault Model Fan Jet Falcon, Fan Jet Falcon Series C, D, E, and F airplanes; Model Mystere-Falcon 200 airplanes; and Model Mystere-Falcon 20-C5, 20-D5, 20-E5, and 20-F5 airplanes modified by Royal Air, Inc. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

The substance of these special conditions has been subjected to the notice and comment procedure in several prior instances and has been derived without substantive change from those previously issued. Because a delay would significantly affect the certification of the airplane, which is imminent, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the supplemental type certification basis for Dassault Model Fan Jet Falcon, Fan Jet Falcon Series C, D, E, and F airplanes; Model Mystere-Falcon 200 airplanes; and Model Mystere-Falcon 20-C5, 20-D5, 20-E5, and 20-F5 airplanes modified by Royal Air, Inc.

1. Protection from Unwanted Effects of High-Intensity Radiated Fields (HIRF) .

Each electrical and electronic system that performs critical functions must be designed and installed to ensure that the operation and operational capability of these systems to perform critical functions are not adversely affected when the airplane is exposed to high-intensity radiated fields.

2. For the purpose of these special conditions, the following definition applies:

Critical Functions: Functions whose failure would contribute to or cause a failure condition that would prevent the continued safe flight and landing of the airplane.

The FAA proposed to amend 14 CFR part 39 with an AD for all Boeing Model 707-300B, -300C, and -400 series airplanes. That action, published in the Federal Register on March 30, 2005 (70 FR 16177), proposed to require repetitive inspections to detect cracked or broken hinge fitting assemblies of the inboard leading edge slats, and corrective action if necessary. That action also proposed an optional preventive modification, which defers the repetitive inspections. In addition, that action proposed an option of replacing all hinge fitting assemblies with new, improved parts, which terminates the repetitive inspection requirements.

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. The commenter supports the proposed AD.

We have corrected the title of the service bulletin referred to in this AD to “Boeing 707/720 Service Bulletin 2982.”

We have revised the text of paragraph (i) of the AD to clarify that the optional preventative modification “defers the repetitive inspections required by paragraph (g) of this AD.”

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

This AD affects about 189 Boeing Model 707-300B, -300C, and -400 series airplanes worldwide. The following table provides the estimated costs for U.S. operators to comply with this AD.

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

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

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

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

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

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

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

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

This amendment to 14 CFR part 71 modifies the legal description for Class D airspace and Class E airspace designated as a surface area at Topeka, Forbes Field, KS to contain Instrument Flight Rule (IFR) operations in controlled airspace. The areas are depicted on appropriate aeronautical charts. Class D airspace areas are published in paragraph 5000 of FAA Order 7400.9M. Airspace Designation and Reporting Points, dated August 30, 2004, and effective September 16, 2004, which is incorporated by reference in 14 CFR 71.1. Class E airspace areas designated as surface areas are published in Paragraph 6002 and 6004 of the same FAA Order. The Class D and Class E airspace designations listed in this document will be published subsequently in the Order.

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

Interested parties are invited to participate in this rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2005-21703/Airspace Docket No. 05-ACE-19.” The postcard will be date/time stamped and returned to the commenter.

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

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

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

On November 23, 2004, the FAA published in the Federal Register a notice of proposed rule making to establish Class E airspace at Mariposa, CA (69 FR 68104). New RNAV GPS SIAPs at Mariposa-Yosemite Airport, Mariposa, CA, makes it necessary to increase the controlled airspace. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace designations are published in paragraph 6005 FAA Order 7400.9M dated August 30, 2004, and effective September 16, 2004, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designations listed in this document will be published subsequently in that order.

This amendment to 14 CFR part 71 establishes Class E airspace at Mariposa-Yosemite Airport, Mariposa, CA. New RNAV GPS SIAPs at Mariposa-Yosemite Airport make it necessary to establish the Class E Airspace. This controlled airspace extending upward from 700 feet or more above the surface is necessary for the containment and safety of IFR aircraft transitioning to/from the en route environment and executing these RNAV GPS SIAP procedures. The amendment also corrects an error in the airport latitude and longitude description.

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

On March 19, 2004, the FAA proposed to amend Title 14 Code of Federal Regulations part 71 (14 CFR part 71) to establish Class E airspace at Aspen, CO, (69 FR 12993). The proposed action would provide Class E airspace during the hours Class D airspace service is not available at Aspen-Pitkin County/Sardy Field Aspen, CO. This Class E airspace extending upward from the surface of the earth will provide a controlled environment for the safety of aircraft executing IFR operations outside the hours of Class D airspace service.

Interested parties were invited to participate in this rule making proceeding by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace designations are published in paragraph 6002 of FAA Order 7400.9M dated August 30, 2004, and effective September 16, 2004, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designations listed in this document will be published subsequently in that order.

This amendment to 14 CFR part 71 establishes Class E airspace at Aspen, CO, by providing additional controlled airspace for aircraft executing IFR procedures at Aspen-Pitkin County/Sardy Field during the hours Class D airspace service is not available. This Class E airspace extending upward from the surface of the earth will provide a controlled environment for the safety of aircraft executing IFR operations outside the hours of Class D airspace service.

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

On February 3, 2004, the FAA proposed to modify V-537 by changing the origination point of the airway from the Vero Beach VORTAC to the Palm Beach VORTAC (69 FR 5098). Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal. No comments were received. With the exception of editorial changes, this amendment is the same as that proposed in the notice.

This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by revising the legal description of V-537 in the vicinity of Palm Beach, FL. The revision incorporates into the airway routing that is used by air traffic control when directing aircraft to Palm Beach, FL. Currently, Miami Air Route Traffic Control Center issues a clearance to aircraft destined for the Palm Beach terminal area by directing aircraft to proceed via the Vero Beach VORTAC, then along V-295 to STOOP intersection, then via V-492 to the Palm Beach VORTAC. This modification incorporates this routing as an extension to V-537. The modification to V-537 will reduce pilot-controller communications, alleviate radio frequency congestion, reduce the potential for pilot readback errors, and enhance the management of aircraft operations in the Vero Beach-Palm Beach area.

Domestic VOR Federal airways are published in paragraph 6010(a) of FAA Order 7400.9M, dated August 30, 2004, and effective September 16, 2004, which is incorporated by reference in 14 CFR 71.1. The VOR Federal airway listed in this document will be published subsequently in the order.

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

Pfizer, Inc., 235 East 42d St., New York, NY 10017, filed NADA 141-244 for DRAXXIN (tulathromycin) Injectable Solution. The NADA provides for the veterinary prescription use of tulathromycin solution in cattle, by subcutaneous injection, for the treatment of bovine respiratory disease (BRD) associated with Mannheimia haemolytica , Pasteurella multocida , and Histophilus somni ( Haemophilus somnus ); for the control of respiratory disease in cattle at high risk of developing BRD associated with M. haemolytica , P. multocida , and H. somni ; and in swine, by intramuscular injection, for the treatment of swine respiratory disease (SRD) associated with Actinobacillus pleuropneumoniae , P. multocida , Bordetella bronchiseptica , and H. parasuis . The application is approved as of May 24, 2005, and the regulations are amended in part 522 (21 CFR part 522) by adding § 522.2630 and in part 556 (21 CFR part 556) by adding § 556.745 to reflect the approval. The basis of approval is discussed in the freedom of information (FOI) summary.

In accordance with the FOI provisions of 21 CFR part 20 and 21 CFR 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.

Under section 512(c)(2)(F)(i) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360b(c)(2)(F)(i)), this approval qualifies for 5 years of marketing exclusivity beginning May 24, 2005.

The agency has determined under 21 CFR 25.33(d)(5) that these actions are of a type that do not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

Two changes are made to the International Traffic in Arms Regulations (ITAR) Part 126—General Policies and Provisions. The first change affects 22 CFR 126.5. This section describes inter alia the modalities by which exporters, without a license issued by the Directorate of Defense Trade Controls (DDTC), may conduct permanent and temporary exports of defense articles to Canada, and temporary imports from Canada. These changes to 22 CFR 126.5 are designed to clarify for exporters the range of defense articles, related technical data, and defense services that will continue to require a license issued by the Directorate of Defense Trade Controls for export to or temporary import from Canada.

The list of items excluded from the provisions of Section 126.5 is outlined in paragraph (b). That list is amended in the following ways: the text of 126.5(b)(12) is amended to reflect textual revisions to Category XIV of the U.S. Munitions List regarding chemical and biological agents. The body of chemical agents encompassed by 126.5(b)(12) and previously controlled in a single paragraph of the Category now has been grouped by type and distributed into several distinct paragraphs. The text also clarifies but does not change the scope of biological agents controlled. Other changes are made to reflect the redesignation of paragraphs in the Category.

The second change is a result of statutory direction. A new section of the ITAR implements Section 1225 of Public Law 108-375 regarding “Bilateral Exchanges and Trade in Defense Articles and Defense Services Between the United States and the United Kingdom and Australia.” This section, to be designated 126.15, calls for the expeditious processing of license applications for the export of defense articles and services to Australia or the United Kingdom, consistent with national security and the requirements of the Arms Export Control Act (22 U.S.C. 2751 et seq.

Regulatory Analysis and Notices: This amendment involves a foreign affairs function of the United States and, therefore, is not subject to the procedures required by 5 U.S.C. 553 and 554. It is exempt from review under executive Order 12866, but has been reviewed internally by the Department of State to ensure consistency with the purposes thereof. This rule does not require analysis under the Regulatory Flexibility Act or the Unfunded Mandates Reform Act. This amendment has been found not to be a major rule within the meaning of the Small Business Regulatory Enforcement Fairness Act of 1996. It will not have substantial direct effects on the States, 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 rule does not have sufficient federalism implications to warrant application of the consultation provisions of Executive Orders 12372 and 13132. This rule does not impose any new reporting or recordkeeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.

The collection of information contained in these final regulations has been reviewed and approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) under control number 1545-1906.

The collection of information in these final regulations is in § 1.1363-2(e)(3). This information is required to inform the IRS of partnerships electing to increase the basis of inventory to reflect any amount included in a partner's income under section 1363(d).

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number assigned by the Office of Management and Budget.

Estimated total annual reporting burden: 200 hours.

The estimated annual burden per respondent varies from 1 to 3 hours, depending on individual circumstances, with an estimated average of 2 hours.

Estimated number of respondents: 100.

Estimated annual frequency of responses: On occasion.

Comments concerning the accuracy of this burden estimate and suggestions for reducing this burden should be sent to the Internal Revenue Service, Attn: IRS Reports Clearance Officer, SE:W:CAR:MP:T:T:SP Washington, DC 20224, and to the Office of Management and Budget, Attn: Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503.

Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.

This document contains amendments to 26 CFR part 1 under section 1363(d) of the Internal Revenue Code (Code). Section 1363(d)(1) provides that a C corporation that owns LIFO inventory and that elects under section 1362(a) to be taxed as an S corporation must include in its gross income for its final tax year as a C corporation the LIFO recapture amount. Under section 1363(d)(3), the LIFO recapture amount is the excess of the inventory amount of the inventory using the first-in, first-out (FIFO) method (the FIFO value) over the inventory amount of the inventory using the LIFO method (the LIFO value) at the close of the corporation's final tax year as a C corporation (essentially, the amount of income the corporation has deferred by using the LIFO method rather than the FIFO method).

Final regulations (TD 8567) under section 1363(d) were published in the Federal Register on October 7, 1994 (59 FR 51105) to describe the recapture of LIFO benefits when a C corporation that owns LIFO inventory elects to become an S corporation or transfers LIFO inventory to an S corporation in a nonrecognition transaction. The regulations did not explicitly address the indirect ownership of inventory through a partnership.

A notice of proposed rulemaking (REG-149524-03, 2004-39 I.R.B. 528) was published in the Federal Register on August 13, 2004 (69 FR 50109). The proposed regulations provided guidance for situations in which a C corporation that owns LIFO inventory through a partnership (or through tiered partnerships) converts to an S corporation or transfers its partnership interest to an S corporation in a nonrecognition transaction. One person submitted comments in response to the notice of proposed rulemaking. A public hearing was held on December 8, 2004. After consideration of the comments, the proposed regulations are adopted as final regulations with the modifications discussed below.

The proposed regulations provided that a C corporation that holds an interest in a partnership owning LIFO inventory must include the lookthrough LIFO recapture amount in its gross income where the corporation either elects to be an S corporation or transfers its interest in the partnership to an S corporation in a nonrecognition transaction. The proposed regulations defined the lookthrough LIFO recapture amount as the amount of income that would be allocated to the corporation, taking into account section 704(c) and § 1.704-3, if the partnership sold all of its LIFO inventory for the FIFO value. A corporate partner's lookthrough LIFO recapture amount must be determined, in general, as of the day before the effective date of the S corporation election or, if the recapture event is a transfer of a partnership interest to an S corporation, the date of recapture event is a transfer of a partnership interest to an S corporation, the date of the transfer (the recapture date). The proposed regulations provided that, if a partnership is not otherwise required to determine inventory values on the recapture date, the lookthrough LIFO recapture amount may be determined based on inventory values of the partnership's opening inventory for the year that includes the recapture date.

The sole commentator suggested that the regulations provide that, if the lookthrough LIFO recapture amount is determined based on inventory values of the partnership's opening inventory for the year that includes the recapture date, then the lookthrough LIFO recapture amount must be adjusted to take into account any adjustments to the partnership's basis in its LIFO inventory that result from transactions occurring during the period from the start of the partnership's tax year to the end of the recapture date. Thus, the lookthrough LIFO recapture amount would have to reflect any adjustments to the basis of LIFO inventory during that period under sections 734(b), 737(c), or 751(b). The final regulations adopt this suggestion.

The proposed regulations provided that a corporation owning LIFO inventory through a partnership must increase its basis in its partnership interest by the lookthrough LIFO recapture amount. The proposed regulations also allowed the partnership through which the LIFO inventory is owned to elect to adjust the basis of partnership inventory (or lookthrough partnership interests held by that partnership) to account for LIFO recapture. This adjustment to basis is patterned in manner and effect after the adjustment in section 743(b). Thus, the basis adjustment constitutes an adjustment to the basis of the LIFO inventory (or lookthrough partnership interests held by that partnership) with respect to the corporate partner only; no adjustment is made to the partnership's common basis.

The Treasury Department and the IRS requested comments on whether the partnership should be required, in some or all circumstances, to increase the basis of partnership assets by the lookthrough LIFO recapture amount attributable to those assets. No comments were received on this question. Therefore, the final regulations follow the rule of the proposed regulations.

The sole commentator recommended that the regulations should extend the availability of a section 743(b)-type basis adjustment to the purchase of a lookthrough partnership interest by a C corporation that subsequently makes an S election (or subsequently disposes of the partnership interest in a nontaxable carryover basis transaction). It has been determined that this recommendation is beyond the scope of the regulations and, so, is not included in the final regulations.

The commentator recommended that the regulations provide for the retroactive revaluation of LIFO inventories under § 1.704-1(b)(2)(iv)( f ) when a non-C corporation partner has been admitted to a partnership (or the non-C-corporation partner's relative interest in the partnership has increased) within a period of two years ending on the date when a C corporation partner in the same partnership makes an S election (or transfers its partnership interest to an S corporation in a nontaxable carryover basis transaction). It has been determined that this recommendation is beyond the scope of the regulations and, so, is not included in the final regulations.

Regarding the payment of the LIFO recapture tax during an S year, the commentator made two suggestions. First, notwithstanding section 1371(c)(1), the regulations should provide that the S corporation's earnings and profits be reduced upon such a payment. Second, notwithstanding section 1367(a)(2)(D), the regulations should provide that the stock basis of the shareholders of the S corporation not be reduced upon such a payment. The issues raised by the payment by an S corporation of taxes attributable to a taxable year in which the corporation was a C corporation are not unique to a payment of the LIFO recapture tax and are beyond the scope of these regulations.

Finally, the commentator questioned whether it is appropriate to issue these regulations under the authority of section 337(d). The Treasury Department and the IRS continue to believe that issuing these regulations under the authority of section 337(d) is appropriate, because Congress's purpose in enacting section 1363(d) was to prevent taxpayers owning LIFO inventory from avoiding the built-in gain rules of section 1374. H.R. Rep. No. 100-391 (Parts 1 and 2), 1098 (1987).

It has been determined that this Treasury decision is not a significant regulatory action as defined in EO 12866; therefore, a regulatory assessment is not required. It is hereby certified that these regulations will not have a significant economic impact on a substantial number of small entities. This certification is based upon the fact that few corporations engage in the type of transactions that are subject to these regulations (the conversion from C corporation to S corporation status while holding an interest in a partnership that owns LIFO inventory or the transfer of an interest in such a partnership by a C corporation to an S corporation in a nonrecognition transaction). Therefore, a Regulatory Flexibility Analysis under the Regulatory Flexibility Act (5 U.S.C. chapter 6) is not required. These final regulations are necessary to prevent abusive transactions involving partnerships and S corporations. Accordingly, good cause is found for dispensing with a delayed effective date pursuant to 5 U.S.C. 553(d)(3). Pursuant to section 7805(f) of the Code, the notice of proposed rulemaking preceding this regulation was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

The principal authors of these regulations are Pietro Canestrelli and Martin Schaffer, Office of Associate Chief Counsel (Passthroughs and Special Industries). However, other personnel from the IRS and the Treasury Department participated in their development.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Publishing a NPRM, which would incorporate a comment period before a final rule could be issued and delay the rule's effective date, is contrary to public interest because immediate action is necessary to protect the public and waters of the United States. The Coast Guard would be unable to effectively ensure safety and security on the navigable waters in the vicinity of the Port during these fireworks events without this safety and security zone in place.

For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . The Coast Guard will issue a broadcast notice to mariners and will place Coast Guard vessels in the vicinity of this zone to advise mariners of the restriction.

We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (COTP Tampa 05-079), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know that your submission reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this rule in view of them.

We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to Coast Guard Marine Safety Office Tampa at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a separate notice in the Federal Register .

Downtown Tampa Attractions Association will be conducting thirteen recurring fireworks demonstrations in the Port of Tampa Bay, Florida. This rule is needed to protect spectator craft in the vicinity of the fireworks presentation from the hazards associated with the storage, preparation and launching of fireworks. Also, since the fireworks demonstrations will be conducted near several major port facilities, the nature of these recurring events could increase the port's vulnerability to possible terrorist activities compromising the security of the port. The recurring events provide a repetitive and predictable situation that persons intending to conduct subversive acts could use to mask their activities. Further, the nature of the repetitive and predictable fireworks events could desensitize already established security measures by providing a possible distraction to those protecting nearby facilities.

The safety and security zone encompasses the following waters within Tampa Bay: Sparkman Channel, Garrison Channel (east of the Beneficial Bridge), Ybor Turning Basin, and Ybor Channel. This rule restricts vessels from entering, remaining within, anchoring, mooring or transiting the safety and security zone without the express permission of the Captain of the Port or his designated representative. Vessels and persons that receive permission to enter the safety and security zone must comply with the instructions of the Captain of the Port or his or her designated representative and must not proceed closer than 120 yards, in any direction, from the fireworks launch barge located in approximate position 27°56′28″ N, 082°26′45″ W, without obtaining further permission from the Captain of the Port or his designated representative. This rule will be effective from 8:35 p.m. on June 24, 2005 through 12:25 a.m. on January 1, 2006. The safety and security zone will only be enforced from 8:35 p.m. until 9:20 p.m. on June 24, July 1, July 4, July 8, July 15, July 22, July 29, August 5, August 12, August 19, August 26, September 4, 2005 and from 11:40 p.m. December 31, 2005 until 12:25 a.m. on January 1, 2006.

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

We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. The rule will only be enforced for forty-five minutes on each of the thirteen listed dates when fireworks displays are planned. Moreover, vessels may still enter the safety and security zone with the express permission of the Captain of the Port Tampa or his designated representative.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit Sparkman Channel, Garrison Channel (east of the Beneficial Bridge), Ybor Turning Basin, and Ybor Channel from 8:35 p.m. until 9:20 p.m. on June 24, July 1, July 4, July 8, July 15, July 22, July 29, August 5, August 12, August 19, August 26, September 4, 2005, and from 11:40 p.m. December 31, 2005 until 12:25 a.m. on January 1, 2006.

This safety and security zone will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will only be enforced for forty-five minutes on each of the thirteen listed dates when fireworks displays are planned. Moreover, vessels may still enter the safety and security zone with the express permission of the Captain of the Port Tampa or his designated representative.

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

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

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

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

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

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

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

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

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

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

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

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

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

On May 2, 2005 (70 FR 22597), EPA approved a Washington State Implementation Plan (SIP) for the Wallula, Washington serious nonattainment area for PM 10 . In approving the Wallula PM 10 serious area plan, EPA inadvertently made typographical errors in the amendatory instructions contained at the end of the notice. The third amendatory instruction contains an incorrect section number—§ 52.672. The section number should be identified as § 52.2475. In addition, EPA inadvertently added paragraph (e)(1) to § 52.2475 when that paragraph already existed. The intent of the rule was to amend that section by adding paragraph (e)(2). This document corrects the erroneous amendatory language.

EPA is publishing this action without a prior proposal because EPA views this as a noncontroversial amendment and anticipates no adverse comments. In the proposed rules section of this Federal Register publication, however, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should relevant adverse comments be filed. This direct final rule is effective on September 12, 2005 without further notice, unless EPA receives adverse comment by August 11, 2005. If adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule did not take effect. All public comments received will then be addressed 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, 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 6, 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.

This action does not involve technical standards; thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 12, 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 April 8, 1997, the United States Court of Appeals for the District of Columbia Circuit vacated the initial MWC unit rules, subparts Cb and Eb as they apply to MWC units with capacity to combust less than or equal to 250 tons per day (TPD) of municipal solid waste (MSW), consistent with their opinion in Davis County Solid Waste Management and Recovery District v. EPA, 101 F.3d 1395 (D.C. Cir. 1996), as amended, 108 F.3d 1454 (D.C. Cir. 1997). As a result, subparts Cb and Eb were amended to apply only to MWC units with the capacity to combust more than 250 TPD of MSW per unit (i.e., large MWC units). Also, in response to the court's decision, on December 6, 2000, EPA promulgated new source performance standards (NSPS) applicable to new small MWCs (i.e., construction commenced after August 30, 1999) and EG applicable to existing small MWC units. The NSPS and EG are codified at 40 CFR part 60, subparts AAAA and BBBB, respectively. See 65 FR 76350 and 76378. These subparts regulate the following air pollutants: Particulate matter, opacity, sulfur dioxide, hydrogen chloride, oxides of nitrogen, carbon monoxide, lead, cadmium, mercury, and dioxins and dibenzofurans.

Under sections 111 and 129 of the Act, EG are not federally enforceable. However, section 129(b)(2) of the Act requires States to submit to EPA for approval State Plans that implement and enforce the EG. State Plans must be at least as protective as the EG, and become federally enforceable as a section 111(d)/129 plan upon approval by EPA. The procedures for adoption and submittal of State Plans are codified in 40 CFR part 60, subpart B.

As required by Section 129(b)(3) of the Act, on January 31, 2003 EPA promulgated a Federal Implementation Plan (FP) for small MWCs that commenced constructed on or before August 30, 1999. The FP is a set of maximum available control technology (MACT) requirements that implement the December 2000 MWC emission guidelines. The FP is applicable to those small existing MWC units not specifically covered by an approved State Plan under sections 111(d) and 129 of the CAA. It fills a Federal enforceability gap until State Plans are approved and ensures that the MWC units stay on track to complete, in an expeditious manner, pollution control equipment retrofits in order to meet the final statutory compliance date on or before of December 6, 2005.

EPA has reviewed the Virginia plan, submitted on September 2, 2003, for existing small MWC units in the context of the requirements of 40 CFR part 60, and subparts B and BBBB, as amended. State Plans must include the following essential elements: (1) Identification of legal authority, (2) identification of mechanism for implementation, (3) inventory of affected facilities, (4) emissions inventory, (5) emissions limits, (6) compliance schedules, (7) testing, monitoring, recordkeeping, and reporting, (8) public hearing records, and (9) annual state progress reports on facility compliance.

Title 40 CFR 60.26 requires the plan to demonstrate that the State has legal authority to adopt and implement the emission standards and compliance schedules. The DEQ has demonstrated that it has the legal authority to adopt and implement the emission standards governing small MWC units. DEQ's legal authority is provided in the Air Pollution Control Law of Virginia, Title 10.1, Chapter 13, of the Code of Virginia. This authority is discussed in the plan narrative and a July 1, 1998 letter from the Virginia Office of the Attorney General to the DEQ. This meets the requirements of 40 CFR 60.26.

The subpart B provision at 40 CFR 60.24(a) requires that State Plans include emissions standards, defined in 40 CFR 60.21(f) as “ a legally enforceable regulation setting forth an allowable rate of emissions into the atmosphere, or prescribing equipment specifications for control of air pollution emissions.” The Commonwealth of Virginia through the DEQ, has adopted State Air Pollution Control Board Regulations (Rule 4-46 and other supporting air program rules) to control small MWC emissions. Rule 4-46, Emission Standards for Small MWC, became effective on September 10, 2003. Other applicable and effective supporting air program rules were identified and submitted to EPA on August 11, 2003 and April 6, 2004. These rules collectively met the requirement of 40 CFR 60.24(a) to have a legally enforceable emission standard.

Title 40 CFR 60.25(a) requires the plan to include a complete source inventory of all affected facilities (i.e., existing MWC units with capacities of 35 to 250 TPD). The DEQ has identified three (3) affected facilities. The affected facilities are Galax, Hampton/NASA, and the Pentagon. An unknown affected facility is not exempt from applicable 111(d)/129 requirements because it is not listed in the source inventory.

Title 40 CFR 60.25(a) requires that the plan include an emissions inventory that estimates emissions of the pollutant regulated by the EG. Emissions from MWC units contain organics (dioxin/furans), metals (cadmium, lead, mercury, particulate matter, opacity), and acid gases (hydrogen chloride, sulphur dioxide, and nitrogen oxides). For each affected MWC facility, the DEQ plan contains MWC unit emissions rates estimates that are given in an acceptable format. This meets the emission inventory requirements of 40 CFR 60.25(a).

Title 40 CFR 60.24(c) specifies that the State plan must include emission standards that are no less stringent than the EG, except as specified in 40 CFR 60.24(f) which allows for less stringent emission limitations on a case-by-case basis if certain conditions are met. However, this exception clause is superseded by section 129(b)(2) of the Act which requires that state plans be “at least as protective” as the EG , in this case 40 CFR part 60, subpart BBBB. A review of the applicable Rule 4-46 emissions limitations show that all are “at least as protective” as those in the EG.

Under 40 CFR 60.24(c) and (e), a state plan must include an expeditious compliance schedule that owners and operators of affected MWC units must meet in order to comply with the requirements of the plan. Also, 40 CFR 60.1535 and beginning at section 60.1585, the EG stipulate increments of progress and compliance requirements for both class I and II facilities. Final compliance and installation of air pollution control equipment capable of meeting the Rule 4-46 emission requirements must be achieved by May 6, 2005 for class II units and November 6, 2005 for class I units. Other compliance schedule requirements ( e.g. , MWC closure) are stipulated in Rule 4-46. Class I units are those located at a MWC plant with an aggregate plant capacity greater than 250 TPD. Class II units are those located at a MWC plant with an aggregate plant capacity of 35 to 250 TPD. The Rule 4-46, 9 VAC 5-40-6710, compliance schedule provision is consistent with the FP, part 62, subpart JJJ, section 62.15045 which establishes expeditious compliance dates. The state plan meets the applicable Federal requirements.

The provisions of subpart B, 40 CFR 60.24(b) and 60.25(b), stipulate facility testing, monitoring recordkeeping and reporting requirements for state plans. Also, related EG provisions of 40 CFR 60.1715 through section 60.1930 further define subpart BBBB requirements that state plans must include. Rule 4-46 meets the subpart B requirements of 40 CFR 60.24 and 60.25; and the related subpart BBBB provisions.

A public hearing on the plan was held June 18, 2003. Applicable portions of Rule 4-46 became effective on September 10, 2003. The state provided evidence of complying with public notice and other hearing requirements, including a record of public comments received. The DEQ has met the 40 CFR 60.23 requirement for a public hearing on the plan.

The DEQ will submit to EPA on an annual basis a report which details the progress in the enforcement of the plan in accordance with 40 CFR 60.25. Accordingly, the DEQ will submit annual reports on progress in plan enforcement to EPA on an annual (calendar) basis, commencing with the first full report period after plan approval.

In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information (1) that are generated or developed before the commencement of a voluntary environmental assessment; (2) that are prepared independently of the assessment process; (3) that demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) that are required by law.

On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts. * * *” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.”

Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any Federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.”

Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its section 111(d)/129 program consistent with the Federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the Clean Air Act, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the Clean Air Act is likewise unaffected by this, or any, state audit privilege or immunity law.

Based upon the rationale discussed above and in further detail in the technical support document (TSD) associated with this action, EPA is approving the Virginia plan, excluding the non-applicable rule provisions, as identified in DEQ letters of August 11, 2003, April 6, 2004, and April 18, 2005 to EPA. As a result of this EPA approval action, the FP is no longer applicable. The identified exclusions, for example, include Rule 4-46 provisions relating to odors, toxic pollutants (state only requirements), and MWC operator requirements under the Virginia Board for Waste Management Facility Operators. Also, with respect to certain plan decisions, EPA retains discretionary authority for several actions as listed in the September 2, 2003 plan narrative, section J, Discretionary Authority. As provided by 40 CFR 60.28(c), any revisions to the Virginia plan or supporting regulations will not be considered part of the applicable plan until submitted by the Commonwealth of Virginia in accordance with 40 CFR 60.28(a) or (b), as applicable, and until approved by EPA in accordance with 40 CFR Part 60, Subpart B, requirements.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. This action simply reflects already existing Federal requirement for state air pollution control agencies and existing small MWC units that are subject to the provisions of 40 CFR part 60, subparts B, and BBBB. 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 section 111(d)/129 plan should relevant adverse or critical comments be filed. This rule will be effective September 12, 2005 without further notice unless EPA receives adverse comments by August 11, 2005. If EPA receives adverse comments, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule did not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

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

In reviewing section 111(d)/129 plan 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 111(d)/129 plan submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a 111(d)/129 plan submission, to use VCS in place of a 111(d)/129 plan 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 12, 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, approving the Virginia section 111(d)/129 plan for small MWC units, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

This document applies to facilities that submit annual reports under section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA). It specifically applies to those who submit the TRI Form R or Form A. (See http://epa.gov/tri/report/index.htm#forms for detailed information about EPA's TRI reporting forms.) To determine whether your facility is affected by this action, you should carefully examine the applicability criteria in part 372 subpart B of Title 40 of the Code of Federal Regulations. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

This document is also relevant to those who utilize EPA's TRI information, including State agencies, local governments, communities, environmental groups and other non-governmental organizations, as well as members of the general public.

This rule is being issued under sections 313(g)(1) and 328 of EPCRA, 42 U.S.C. 11023(g)(1) and 11048; and section 6607(b) of the Pollution Prevention Act (PPA), 42 U.S.C. 13106. In general, section 313 of EPCRA and section 6607 of PPA require owners and operators of facilities in specified SIC codes that manufacture, process, or otherwise use a listed toxic chemical in amounts above specified threshold levels to report certain facility-specific information about such chemicals, including the annual releases and other waste management quantities. Section 313(g)(1) of EPCRA requires EPA to publish a uniform toxic chemical release form for these reporting purposes, and it also prescribes, in general terms, the types of information that must be submitted on the form. In addition, Congress granted EPA broad rulemaking authority to allow the Agency to fully implement the statute. EPCRA section 328 authorizes the “Administrator [to] prescribe such regulations as may be necessary to carry out this chapter.” 42 U.S.C. 11048.

Pursuant to section 313(a) of the Emergency Planning and Community Right-to-Know Act (EPCRA), certain facilities that manufacture, process, or otherwise use specified toxic chemicals in amounts above reporting threshold levels must submit annually to EPA and to designated State officials toxic chemical release reporting forms containing information specified by EPA. 42 U.S.C. 11023(a). These reports must be filed by July 1 of each year for the previous calendar year. In addition, pursuant to section 6607 of the Pollution Prevention Act (PPA), facilities reporting under section 313 of EPCRA must also report pollution prevention and waste management data, including recycling information, for such chemicals. 42 U.S.C. 13106. These reports are compiled and stored in EPA's database known as the Toxics Release Inventory (TRI).

The statute, along with regulations at 40 CFR part 372, subpart B, requires facilities that meet all of the following criteria to report:

• The facility has 10 or more full-time employee equivalents ( i.e. , a total of 20,000 hours worked per year or greater; see 40 CFR 372.3); and

• The facility is included in Standard Industrial Classification (SIC) Codes 10 (except 1011, 1081, and 1094), 12 (except 1241), 20-39, 4911 (limited to facilities that combust coal and/or oil for the purpose of generating electricity for distribution in commerce), 4931 (limited to facilities that combust coal and/or oil for the purpose of generating electricity for distribution in commerce), 4939 (limited to facilities that combust coal and/or oil for the purpose of generating electricity for distribution in commerce), 4953 (limited to facilities regulated under Resource Conservation Recovery Act (RCRA) Subtitle C, 42 U.S.C. 6921 et seq. ), 5169, 5171, and 7389 (limited to facilities primarily engaged in solvents recovery services on a contract or fee basis), or, under Executive Order 13148, federal facilities regardless of their SIC code; and

• The facility manufactures (defined to include importing), processes, or otherwise uses any EPCRA section 313 (TRI) chemical in quantities greater than the established threshold for the specific chemical in the course of a calendar year.

Facilities that meet the criteria must file a Form R report or in some cases, may submit a Form A Certification Statement for each listed toxic chemical for which the criteria are met. As specified in EPCRA section 313(a), the report for any calendar year must be submitted on or before July 1 of the following year. For example, reporting year 2003 data should have been postmarked on or before July 1, 2004.

The list of toxic chemicals subject to TRI can be found at 40 CFR 372.65. This list is also published every year as Table II in the current version of the Toxic Chemical Release Inventory Reporting Forms and Instructions. The current TRI chemical list contains 582 individually-listed chemicals and 30 chemical categories.

EPA is modifying the TRI reporting forms to improve efficiency and effectiveness, reduce burden, and promote data reliability and consistency across Agency programs.

One of the purposes of today's actions is to reduce burden on facilities that submit annual TRI reports without compromising the data quality of toxic chemical release and other waste management information. “Burden” is the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose, or provide information to or for a federal agency. 44 U.S.C. 3502(2). That includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

EPA has made considerable progress in reducing burden associated with its various information collections through streamlining, consolidating and harmonizing regulations, guidance and compliance assistance, and implementing technology-based processes ( i.e. , electronic reporting, cross program data utilization, using geospatial information to pre-populate data fields). These measures have reduced the time, cost, and complexity of existing environmental reporting requirements, while enhancing reporting effectiveness and efficiency.

Today's actions reduce the time, cost and complexity of the reporting requirements imposed on facilities. While they are only expected to result in a modest amount of cost and burden savings, they also represent only the first phase of a broader and more substantive set of regulatory burden reduction alternatives currently being examined by EPA. That effort, described in more detail below, is expected to provide additional regulatory relief for TRI reporters.

A second purpose of today's rule is to improve data reliability and consistency across EPA programs. By replacing self-reported data from facilities with data from EPA's Facility Registry System on items such as latitude and longitude and facility ID numbers for other EPA programs, EPA can better ensure that this information is reported consistently across programs and facilities. Further, as locational information will have method of collection, accuracy, and a description of the location to which the coordinates correspond ( e.g. , production center, discharge point), data users will be able to utilize information with greater confidence. By streamlining reporting requirements and improving data reliability and consistency, this rule will improve reporting efficiency and effectiveness.

Throughout the history of the TRI program the Agency has implemented measures to improve reporting efficiency and effectiveness and reduce the TRI reporting burden on the regulated community. Through a range of compliance assistance activities, such as the Toxic Chemical Release Inventory Reporting Forms & Instructions (which is published and mailed every year), industry training workshops, chemical-specific and industry-specific guidance documents, and the EPCRA Call Center (a call hotline), the Agency has shown a commitment to enhancing the quality and consistency of reporting, and assisting those facilities that must comply with EPCRA section 313.

EPA has also done extensive work to make reporting easier for the TRI reporting community through the development and use of technology, such as EPA's Toxics Release Inventory—Made Easy software, otherwise known as “TRI-ME” ( http://www.epa.gov/tri/report/trime/ ). TRI-ME is an interactive, user-friendly software tool that guides facilities through the TRI reporting process. By leading prospective reporters through a series of logically-ordered questions, TRI-ME facilitates the analysis needed to determine if a facility must complete a Form R or A report for a particular chemical. For those facilities required to report, the software provides guidance for each data element on Forms R and A. TRI-ME has a one-stop guidance feature, the TRI Assistance Library, which allows keyword searches on the statutes, regulations, and many EPCRA section 313 guidance documents. TRI-ME also offers a “load feature” that enables the user to upload almost all of the facility's prior year data into the current year's report. Finally, TRI-ME checks the data for common errors and then prepares the forms to be sent electronically over the Internet via EPA's Central Data Exchange (CDX). TRI-ME generated reporting forms may also be submitted offline via magnetic media or on paper. In the spring of 2005, EPA distributed approximately 5,000 copies of TRI-ME in preparation for the 2004 reporting year deadline of July 1, 2005. Approximately 93% of the roughly 98,000 Form Rs filed in 2004 were prepared using the TRI-ME software.

In 1994, partially in response to petitions received from the U.S. Small Business Administration Office of Advocacy and the American Feed Industry Association, an EPA rulemaking established the Form A Certification Statement as an alternative to Form R. This burden-reducing measure was based on an alternate threshold for quantities manufactured, processed, or otherwise used by those facilities with relatively low annual reportable amounts of TRI chemicals. For non-PBT chemicals, a facility may use the Form A if the facility manufactures, processes or otherwise uses a TRI chemical below the alternate threshold of one million pounds per year and the facility has annual reportable amounts of these toxic chemicals not exceeding 500 pounds. The annual reportable amount is the total of the quantity released at the facility, the quantity treated at the facility, the quantity recovered at the facility as a result of recycle operations, the quantity combusted for the purpose of energy recovery at the facility, and the quantity transferred off-site for recycling, energy recovery, treatment, and/or disposal. This combined total corresponds to the quantity of the toxic chemicals in production-related waste ( i.e. , the sum of sections 8.1 through and including section 8.7 on the Form R).

In an effort to further explore burden reduction opportunities, EPA conducted a TRI Stakeholder Dialogue between November 2002 and February 2004. The dialogue process focused on identifying improvements to the TRI reporting process and exploring a number of burden reduction options associated with TRI reporting. In total, EPA received approximately 770 documents as part of this stakeholder dialogue. Of that, approximately 730 were public comments and the remaining documents were either duplicates or correspondence transmitting public comments to the online docket system. The public comments expressed a range of views, with some supporting burden reduction and others opposing it. You may view and obtain copies of all documents submitted to EPA by accessing TRI docket TRI-2003-0001 online at http://www.epa.gov/edocket or by visiting the EPA docket reading room in Washington, DC.

As a result of the Stakeholder Dialogue, the Agency identified a number of burden reducing options which will continue to support existing data uses and statutory and regulatory obligations. These changes fall into two broad categories: (1) Changes or modifications to the reporting forms and processes (including modifications to the forms and improvements in the TRI-ME software) which will streamline reporting without significantly affecting the information collected; and (2) what the Agency believes are more substantial changes that may affect which facilities are required to report and at what level of detail.

EPA decided to address the two categories of changes through separate rulemakings, one of which is today's action. This rule focuses on streamlining reporting associated with TRI's Forms R and A. The changes resulting from today's action are the elimination of some redundant or seldom-used data elements from these forms, and modification of other data elements to reduce the time and costs required to complete and submit annual TRI reports. It also replaces some elements with information from EPA's Facility Registry System in order to improve data reliability and consistency. EPA is confident these changes will enhance the efficiency and effectiveness of the TRI program by reducing reporting requirements, while continuing to provide communities and other data users with the same, or higher quality, chemical release and other waste management information.

The second rulemaking, to be proposed later in 2005, will examine the potential for more significant reporting modifications with greater potential impact on reducing reporting burden. The options which may be considered in that rulemaking include expanding eligibility for Form A and introducing a “no significant change” option for chemical reports that have not changed significantly relative to a baseline reporting year. Because of the greater complexity and larger impacts potentially associated with this latter group of changes, additional analysis is needed to more thoroughly characterize its impact on TRI reporters and data users.

EPA is removing from the TRI Forms R and A the latitude/longitude data elements (section 4.6, Part I), the EPA Identification Number(s) (RCRA ID No.) (section 4.8, Part I), the Facility NPDES Permit Number(s) (section 4.9, Part I), and the Underground Injection Well Code (UIC) ID Number(s) (section 4.10, Part I). Instead of continuing to request this information from the TRI reporter, the Agency's Facility Registry System (FRS) will be used to populate the TRI database with this information. This information will continue to be made readily available for all TRI reports and applications such as the publicly accessible TRI Explorer and all Form A or R retrievals from Envirofacts at http://www.epa.gov/enviro/index_java.html . In other words, facility identification and locational data will still be made available for all reporters and data users, but instead of requiring facilities to supply their geographic coordinates or provide certain EPA program identification and permit numbers, the Agency will extract this data from information that is already collected, stored and maintained in its centrally managed database, the FRS.

Based on comments received and information gathered since the proposed rule, EPA is not removing from Form R or modifying in any way, part II, section 5.3 column C as part of today's rule. Section 5.3 applies to discharges to receiving streams and water bodies. Column C requires facilities to indicate the percentage of the total quantity of the EPCRA section 313 chemicals reported in column A (Total release) that are discharged from stormwater.

As part of today's action, the Agency is, however, making modifications to five data elements of part II, section 7 of the Form R. This rule simplifies column B of section 7A—Waste Treatment Method(s) Sequence, by replacing 64 codes used to describe the various waste treatment methods applied to EPCRA section 313 chemicals treated on-site with a modified version of the 18 hazardous waste treatment codes (H040-H129), as they were described in the proposed rule. These 18 codes are a modified version of the codes used in EPA's National Biennial Resource Conservation Recovery Act (RCRA) Hazardous Waste Report (hereafter referred to as the RCRA Biennial Report). (See PDF screen page 63 of the 2003 Hazardous Waste Report Instructions and Forms (booklet) [EPA Form 8700-13 A/B; 11/2000] available at http://www.epa.gov/epaoswer/hazwaste/data/br03/03report.pdf ). Based on comments submitted, several modifications were made to the list of H codes presented in the proposed rule. For example, in the proposed rule EPA inadvertently omitted treatment code H083 (Air or steam stripping) from the list of 18 hazardous waste treatment codes. This was an oversight and EPA has included this code in today's rule. Furthermore, “as the major component of treatment” has been removed as a qualifier from H082 (Adsorption as the major component of treatment) and H083 (Air or steam stripping as the major component of treatment), “at another site” has been removed as a qualifier from H111 (Stabilization or chemical fixation prior to disposal at another site) and H112 (Macro-encapsulation prior to disposal at another site), and “only” has been removed as a qualifier from H121 (Neutralization only).

In addition, based on comment received on the proposed modification to section 7A column B, EPA has decided to retain the seven Air Emissions Treatment codes currently available for reporting in column B (see page 55 of the 2004 TRI Reporting Forms and Instructions (EPA 260-B-05-001, January 2005) at http://epa.gov/tri/report/index.htm#forms ). Accordingly, this rule finalizes the following list of waste treatment codes for reporting in part II, section 7A, column B of Form R:

This rule eliminates section 7A, column C—Range of Influent Concentration from the Form R.

Today's action allows facilities to report their treatment efficiency as a range instead of an exact percentage in column D (Waste Treatment Efficiency Estimate) of section 7A of Form R using the following ranges:

This set of ranges is different from the set of ranges proposed. The ranges were modified from the proposal to allow data users to continue to distinguish the performance of combustion devices in excess of RCRA hazardous waste and TSCA PCB incinerator standards. The mid and lower range treatment efficiencies were modified as well, in response to comments to reduce the number of categories in those ranges and better reflect the distribution of historical values.

This rule eliminates column E (Based on Operating Data) of section 7A from Form R.

This rule also removes the current recycling codes for section 7C (On-Site Recycling Processes) of the Form R and replaces them with the following three reclamation and recovery management categories used in EPA's RCRA Biennial Report:

See the PDF screen page 63 of the 2003 Hazardous Waste Report Instructions and Forms (booklet) (EPA Form 8700-13 A/B; 11/2000) available at http://www.epa.gov/epaoswer/hazwaste/data/br03/03report.pdf . Readers will note that the actual code numbers differ slightly from those in the RCRA instructions in that the leading “0” (i.e., H 0 20 ) has been removed from each code name. This was done to avoid the need to reprogram TRI-ME, thus saving administrative costs. The Agency does not believe this will cause any confusion.

Today's action also modifies section 8.11 of Form R by removing the requirement to answer “yes” or “no” to this optional section on additional information on source reduction, recycling, or pollution control activities. Instead, an optional question will replace the requirement to answer “yes” or “no” and an optional text box feature will be added to EPA's TRI-ME reporting software to enable reporting facilities to add a brief description of their applicable source reduction, recycling, and other pollution control techniques and activities. Facilities will still have the opportunity to submit hard copies of any source reduction information they may wish to submit.

Finally, through this rule EPA is amending 40 CFR 372.85(a) to provide a reference to the TRI Web site to obtain the Form R instead of publishing in the regulations an incorrect physical address from which to request copies of TRI forms. In addition, EPA will also provide a phone number from which to request TRI publications. EPA is also deleting 40 CFR 372.85(b)(18), an outdated pollution prevention data element, which expired after the 1990 reporting year.

EPA received 31 distinctive comments in response to this proposed rule. While the majority of commenters were supportive of today's actions, many commenters cautioned the Agency to make sure that the changes do not result in diminished data quality, utility, or accessibility. Some commenters urged the Agency to consider data user needs and to balance user needs with burden reduction. A number of commenters also stated that today's actions will only provide minimal burden relief, especially since some of the changes are for information that is collected by the facility one time and used from year-to-year. Others expressed concerns about the initial transaction costs that TRI reporters, as well as the states, may incur to account for these reporting changes and to modify training materials and analysis mechanisms already in place.

The TRI reporting form changes in today's rule support existing data uses and fulfill statutory and regulatory obligations. They are the first step in the Agency's larger effort to reduce reporting burden for TRI reporters while at the same time, these changes allow the Agency to continue to provide valuable information to the public consistent with the goals and statutory requirements of the TRI program. Some of the changes being finalized today will shift the burden to the Agency, and will increase the quality of locational data and EPA program identification information (also referred to collectively hereafter as facility identification information). Other changes being finalized today will reduce computational burden, but maintain the availability of information in a form commensurate with its true underlying precision. Accordingly, EPA does not believe there will be a meaningful loss of information for users.

While today's changes provide only a modest amount of burden relief, they are important nonetheless, and based on comments received, many TRI reporters support this burden relief measure. EPA is committed to all of its ongoing burden reduction activities. As stated in the proposed rule and above at Unit III.C., the Agency is pursuing a broader and more substantive set of regulatory burden reduction alternatives in a future rulemaking.

EPA acknowledges that changes to the TRI reporting forms could lead to some initial transition costs for TRI reporting facilities and other TRI stakeholders. Balanced against this consideration, of course, is the fact that these changes will remove certain data elements from the reporting forms and simplify others, thereby making it easier for industry to comply with the TRI reporting requirements after the changes are made. For example, whereas Form R previously required reporters to distinguish between three separate on-site wastewater treatment method codes for cyanide oxidation, the changes finalized today will allow reporters to use one cyanide oxidation treatment code. In addition, the initial burden from adjusting to the form modifications that the commenters predict will not affect new reporters.

Further, EPA's TRI-ME software can be used by reporters to greatly ease reporting burden. The software guides reporters through a series of logically ordered questions that helps them determine how to meet their regulatory obligations, and provides various tools for completing the reporting forms. The changes finalized in today's rule will be incorporated into the TRI-ME software. EPA does not require facilities or others to develop additional data collection, tracking or other databases or documentation. Neither does the Agency require any special training materials or courses as a result of today's actions.

EPA does not believe that this rule will impose significant burden on the states. Most of the changes being finalized are in the form of eliminating data elements. The Agency will continue to make all facility identification data available through the Facility Registry System (FRS). Furthermore, the Agency will continue to work with the states to improve electronic information exchange capability and the timeliness of such exchanges.

EPA's National Environmental Information Exchange Network (“Exchange Network”) provides state partners the capability to access data through a streamlined web services process. As more states participate, they will be provided with the ability to use the Exchange Network's built-in quality checks, standard file formats, and a common, user-friendly approach to exchanging data. A majority of states already take advantage of EPA's Exchange Network. In addition, we expect numerous benefits to result from the centralization of data in the Agency's FRS, which provides an integrated, comprehensive source of information about facilities subject to a variety of environmental statutes and regulations. As an essential part of implementing this rule, EPA will provide increased access to both the FRS resources and the Agency's Integrated Error Correction Process (IECP), so that states, facilities, and the general public can more easily access facility identification information and report data errors when appropriate.

Finally, some commenters raised issues about burden reduction ( e.g. , no significant change certification criteria, expanded eligibility for Form A) that will be addressed in another rulemaking (discussed above in Unit III.C.) to be proposed later this year. Other commenters raised issues unrelated to this rulemaking ( e.g. , providing additional context for the TRI data). These comments are included in the public docket for this rulemaking but will not be addressed in this rule.

In the proposed rule, EPA requested comment on removing reporting of certain facility identification data (latitude/longitude coordinates and certain EPA program and permit identification numbers) from the TRI forms. Instead of collecting the data annually from facilities, EPA would use the centralized EPA database, known as the Facility Registry System (FRS), to populate the TRI database with this information. Specifically, EPA proposed populating the TRI database with latitude and longitude information (also referred to as locational data or locational information) from the FRS.

Under this proposal, locational information from FRS, including a description of what the latitude and longitude coordinates represent ( e.g. , center of production, pipe outfall, stack) would be made readily available for all TRI search applications, such as the publicly accessible TRI Explorer and all Form R and A retrievals from Envirofacts. Similarly, as part of the proposed rule, EPA requested comment on automatically populating the TRI database with EPA program and permit identification numbers (except the TRI facility identification number (TRIFID), which facilities must continue to report annually), from FRS as an alternative to requesting the information from TRI reporters. The program and permit identification numbers that will be populated from FRS include the numbers assigned to facilities under the Resource Conservation and Recovery Act (RCRA), the permit identification numbers under the National Pollutant Discharge Elimination System (NPDES), and the permit numbers issued by a state to facilities with underground injection control wells (UIC).

As discussed in the proposed rule, the FRS is a centrally-managed database developed by EPA's Office of Environmental Information (OEI). FRS provides Internet access to a single source of comprehensive information about facilities that are subject to environmental regulations and/or have attributes that are of environmental interest to EPA. The FRS database currently contains over 1.5 million unique facility records, and new facilities are continuously being added to the system, either through information supplied by EPA programs or through our state partners on the Exchange Network. At this time, facility identification data are exchanged with over three dozen states through the Exchange Network. FRS also receives correction and verification information from the reporting community through Web-based access, and through EPA database systems, such as TRI, maintained by over a dozen EPA programs.

Eight commenters supported removing the proposed facility identification data from Forms R and A, and instead, replacing these data elements with data from the Agency's FRS so that TRI reporters would no longer have to annually report these data elements on their Form Rs or As. Several commenters voiced support for greater consistency between EPA's program databases, as well as increased simplification and standardization of the facility identification data that EPA collects, stores and makes available to the public. One commenter asserted that this change would enhance TRI reporting efficiency and improve data quality, especially if existing databases are utilized for populating Forms R and A. Two commenters stated that these changes would ease paperwork and reporting burdens and lead to greater consistency on data collection across Agency programs. Several commenters stated that the change would help eliminate redundant data collection. One commenter stated that the change would promote wider use of the FRS. Another commenter asserted that the change should help avoid data entry errors and promote consistent reporting of facility locational data.

EPA agrees with the commenters that the Agency's databases should be standardized and made consistent as much as possible across various programs. This regulatory change is part of a larger Agency initiative to increase the reliability and accuracy of the Agency's FRS database system. Accordingly, EPA is finalizing its proposal to use FRS to supply the data for sections 4.6 and 4.8 through 4.10 of Forms R and A.

Before finalizing this proposal, however, EPA evaluated the concerns expressed about “inherent flaws” in the Agency's FRS that compromise the Agency's efforts to consolidate environmental data, minimize reporting redundancies and create a single identification system. Contrary to statements in the proposed rule, one commenter claimed that facility identification records in FRS are not accurate or authoritative. A commenter asserted that this understanding is supported by industry representatives who must reconcile FRS data with company records. A number of commenters emphasized that it was imperative to enable the public to easily retrieve all environmental information about a specific facility.

Commenters did not provide data to substantiate their claims of erroneous information in FRS. Nevertheless, the Agency examined FRS coverage of EPA program identifiers in the context of RCRA identification numbers (hereafter referred to as RCRA IDs) to test the commenters' concern. The FRS database contains all EPA program identification numbers that are stored in EPA's national program system databases. Regarding RCRA, FRS contains all the RCRA IDs from the RCRAInfo database, and is thus a definitive source for such information. The Agency examined over 10,000 TRI forms with RCRA IDs from the 2002 reporting year. A description of this study is included below under Unit V.A.2. of this preamble.

It is important to note here that the FRS database covers all the TRI reports for reporting year 2003 and has retained all TRIFIDs (there are over 49,000 of them) since the TRI program began in the late 1980s. FRS also has the latitude and longitude coordinates for all historical TRIFIDs. The Burden Reduction Rule will not impair the public's access to information about TRI reporting facilities, including locational data and EPA program identification numbers. These data will continue to be publicly available through various TRI access tools. Only now they will be supplied by the larger and more authoritative data files in FRS. To the extent that inconsistencies and errors are identified in the future, the Agency's Integrated Error Correction Process (IECP) will provide a convenient and effective mechanism for bringing these issues to the Agency's attention for resolution.

Two commenters asserted that ideally, EPA should refrain from relying on FRS to supply data to TRI until all states are participating in the Exchange Network and have the capability to upload data into FRS. One commenter stated that 14 states are still not active in the Exchange Network. The commenter asserted that data regarding facilities in non-participating Exchange Network states are not being scrutinized by people most familiar with those facilities. According to the commenter, until all states are part of the network, EPA lacks the “on-the-ground” intelligence needed to ensure that FRS data is accurate or complete.

EPA agrees that ideally all the states should be part of the existing Exchange Network. However, we believe that the commenter that urged EPA to wait to implement this rule “until all states are participating in the FRS program” may not have understood that FRS contains data about regulated facilities' identification information that has been provided both by EPA's many database systems and by many state environmental agencies. States do not need to take any specific action to access information data from FRS and information is available in FRS for facilities in states that aren't yet a part of the Exchange Network from various EPA sources. Anyone, including state agencies, can access data from FRS at any time. While it is true that not all states currently participate in the Exchange Network, the vast majority of states do participate, and EPA is working closely with non-participating states to help facilitate their full participation in the near future.

Accordingly, EPA does not agree that the rule should be delayed until all states are participating in the Exchange Network, nor does EPA agree that the Agency lacks the “on-the-ground” intelligence needed to ensure that FRS data are accurate or complete until such time. The FRS is already functioning and will be further enhanced as part of the effort to implement this rule. EPA will provide all states and other data users the opportunity to correct inaccurate TRI data. All states and reporters will be able to correct inaccurate information on locational data and EPA program identification numbers through the Agency's Integrated Error Correction Process (IECP). As explained in the proposed rule, another advantage of utilizing information in the FRS is that one can take advantage of EPA's Public Internet site to submit corrections to EPA's data on regulated facilities through one central access point. The IECP unifies the process by which EPA regulatory programs manage error notifications to the data in their systems. IECP is part of an ongoing EPA effort to improve the quality of EPA's publicly available data. Through the IECP, the public can directly notify EPA of a data error they've identified in EPA's publicly available data. They may notify EPA through a variety of venues that include the following: (1) Selecting the “Contact Us” hotlink from the EPA Home Page and accessing the link “report data errors”, (2) calling the IECP desk, (3) sending a fax, or (4) e-mailing a detailed description of the error.

Furthermore, the Agency will take one additional step to ensure a smooth transition to the use of FRS. For reporting year 2004, the e-FDR is expected to be publicly released in the fall of 2005. At the time of the posting of the individual TRI reporting form submissions (which will still contain the collected facility identification data elements), EPA will also post the facility identification information stored in FRS. This will enable interested parties to directly observe the data and confirm its accuracy. Lastly, the Agency will be working closely with all states to ensure a smooth transition to the utilization of pre-existing facility identification data in FRS.

One commenter recommended that EPA delay implementing the use of FRS to supply facility locational data and EPA program identification numbers until a pilot study is conducted to ensure that these data are of equal or higher quality in FRS than the data which are contained in the TRI database. In addition, according to the commenter, problems arise when the TRI dataset contains locational data for facilities that FRS does not cover. While having all states as part of the Exchange Network may help address these problems, the commenter asserted that there are inherent limits to this kind of after-the-fact reconciliation. The commenter urged EPA to delay implementation until the FRS dataset is complete and the agency can ensure the accuracy of the data.

While EPA does not agree that we should delay using FRS to access TRI facility identification information until a pilot study can be undertaken, a separate assessment was conducted of locational information in FRS versus that contained in the TRI database. The locational information in the two systems was compared on the basis of performance against two criteria: A quality screening approach and conformance to the Agency's data standards for locational information.

Absent very detailed site information, it is difficult to design a locational screening test. What the Agency did was to compare the locational data stored in FRS versus such data in the TRI database on a county basis ( i.e., what percentage of reported locational data were within the boundaries of the counties where the facilities' street addresses were located). While it is possible for a street address to vary appreciably from the location of the facility's center of production, the Agency believes this test provides a first approximation of relative performance. We found that 98% of all FRS locational data as opposed to 97% of all TRI locational data met this criterion. Therefore, on the basis of this broad measure, the two systems had comparable information.

For the second test, the Agency looked at how the data conformed with the Agency's data standards for locational information ( i.e. , a description of the method of data collection and what is measured, as well as probable accuracy). Fully 89% of all TRI facility locational data for reporting year 2003 would have been able to meet the Agency's data standard requirements if FRS had been used to derive TRI locational data. Currently, none of the TRI locational data can meet the Agency's data standards for locational information, which require metadata for the method, accuracy and description of what the latitude and longitude coordinates represent.

Over the coming months, the Agency is implementing a program to ensure that virtually all TRI facilities will have locational information that meet the Agency's data standard requirements. An implementation plan describing this program has been included in the docket that accompanies this rule. Furthermore, through the IECP, EPA provides the opportunity to correct inaccurate data maintained for use by TRI data users.

1. Removal of Latitude/Longitude Reporting Requirement (Section 4.6 of Forms R and A ). Three commenters recommended that reporters be provided the opportunity to review and correct the latitude/longitude data stored in EPA's FRS before removing section 4.6 from the reporting forms and replacing it with locational data from FRS. One of the commenters also recommended that EPA keep FRS locational data updated in a timely manner.

While EPA does not agree with the commenters' suggestion on waiting for facilities to review their locational data before removing part I section 4.6 from the TRI reporting forms, EPA wholeheartedly agrees with the commenters that TRI reporters should be allowed to review and correct their latitude/longitude data in FRS. We are taking a number of steps to provide this opportunity. Specifically, in the fall of 2005, at the time of the electronic facility data release (eFDR), we will be providing the relevant FRS locational information along with the responses provided by the facility for the 2004 reporting year. This will enable all interested parties, including data reporters and users to compare the information contained in the most recent TRI submission with the corresponding information for that facility in FRS.

Any interested party will have the opportunity to raise concerns with TRI-reported latitude/longitude values or the new values to be derived from FRS. These concerns may be submitted to the Agency through the IECP (discussed above). The Agency plans to improve access to the IECP to make it very easy for TRI reporters or data users to review and notify the Agency of inaccurate locational values.

One commenter cautioned EPA that the definition of “facility” under EPCRA is not necessarily the same as the definition of “facility” under other statutes, and that this could affect the use of FRS data. The commenter asserted that under EPCRA two sites that are adjacent and/or contiguous and that are owned by the same entity are considered to be one facility (even if separated by a public road). However, according to the commenter, under RCRA the sites would be considered two facilities. As such, there may be instances where the data from each source is different for the same “facility.”

Variation in facility definitions as one crosses EPA program boundaries is one of the major challenges the Agency faces in its efforts to develop a central facility registry. However, it is a challenge which already faces some users of TRI information. For example, users of information for RCRA assessments are already faced with the challenge to create a map between multiple RCRA facilities and a single TRI facility, when the facility definitions are not consistent. Likewise, there may be cases where the TRI-reported RCRA IDs do not constitute the totality of RCRA IDs associated with a given TRIFID due to a limited number of spaces on the TRI form. Presently, crosswalk checks are completed manually.

The conversion to the use of FRS for facility identification information should actually strengthen the mapping across programs with different facility definitions. To understand why this is so, one needs to understand the meaning of a facility in FRS. In FRS, each entity with a discrete street address is an independent facility. Where individual programs will disagree is in the case of more complex facilities where ownership or programmatic considerations have led to the clustering of multiple FRS “facilities” into a single entity for the purposes of a program ( e.g. , TRI).

A key step in the transition to the use of FRS supplied locational data will be the creation of a program map. This map will use the 2004 TRI responses to assign a TRI facility identification number (TRIFID) to each relevant FRS facility. Where multiple FRS facilities have the same TRIFID, all will be assigned the same TRIFID. This map will ensure that the locational information for the TRI facility contains not only all relevant locational information, but also all relevant EPA program identification numbers. Furthermore, the locational information retrieved will be superior to current TRI information because it will have metadata describing how the information was derived, its collection method, its probable accuracy, and a geographic description ( i.e. , whether it is based on the center of the production facility, a pipe outfall, stack, etc). This change will provide a much more comprehensive look at all of the locational information for TRI facilities. Furthermore, the enhanced access to the IECP for data suppliers and users should result in a steady improvement in facility mapping and locational information.

One commenter was troubled about how long it would take to populate FRS with TRI data and complete data quality checks. The commenter urged EPA to ensure that no lapses occur in the availability of locational data as a result of this process.

EPA will ensure that there is no lapse in making locational data available for TRI data users. Locational data from TRI and other programs is already stored in FRS and the Agency will provide a seamless transition from collecting locational data directly from TRI reporters to pulling existing locational data out of FRS and providing it along with other facility identification information to TRI data users starting with the public data release for reporting year 2005 information, which must be submitted by July 1, 2006.

Several commenters expressed concern that EPA's FRS database does not often have previously stored locational data for first-time TRI reporters. The commenter asserted that this data gap problem could also be exacerbated by the fact that not every state is participating in EPA's Exchange Network. The commenter recommended that EPA modify the rule to require reporting of locational data by first time reporters. Another commenter stated that data gaps in the FRS database could be best addressed by requiring new reporting entities to include additional information on facility identification data the first time they are required to complete Form R or A.

EPA acknowledges that there are a relatively small number of new facilities that submit TRI Form R or A reports each year for which the Agency does not already have locational data stored in FRS. The Agency disagrees, however, that new reporters should be required to submit locational data. EPA plans to use street address matching in combination with its siting tool to populate FRS with locational data for those cases in which FRS has no previous locational data for new reporters. As discussed above, reporters, as well as the states and the general public will be provided the opportunity to submit a request for correcting inaccurate facility locational data by using the Agency's IECP.

Two commenters opposed the use of address matching for deriving TRI facility latitude/longitude data. One commenter stated that the two most apparent problems with this method are: (1) If the facility is in a rural or unpopulated area, offshore, etc., then the software may be unable to match the address to a location; and (2) the facility's mailing address may not be the location where the toxic chemical releases occur. For example, if a facility picks up mail at a headquarters building that manages several facilities, this would create a different latitude/longitude than where its stacks are located.

The second commenter claimed that as much as 70% of the locational data derived from various EPA databases and stored in FRS may be based on address matching. The commenter maintained that some of the locational data in FRS may be based on wastewater outfall locations that can be long distances from the facilities. Reliance on FRS data collected from these other databases, according to the commenter, would introduce significant error into the use of the information.

The Agency disagrees with these commenters. Dealing with the second comment first, FRS does not use mailing addresses for locational referencing of facilities. Rather, the actual street address of the facility is used. EPA believes that street address matching, used in combination with our facility siting tool ( i.e. , a geospacial application that uses aerial imagery to determine latitude and longitude coordinates) in rural areas, can provide credible locational coordinates for all TRI facilities. EPA plans to use this method for new reporters and for other cases in which no credible locational data is available in FRS. The Agency believes that this method provides a better source of data than locational data for which there is no metadata ( i.e. , no explanation as to how the information was derived or its accuracy), which occurs with the current locational data reported to the TRI program. Furthermore, because the Agency plans to include all locational information in the next e-FDR, anyone interested in a particular facility will be able to easily raise concerns through the IECP with the data chosen to represent the location of the facility.

As to the concern with the quality of FRS, FRS has been operational since 2000 and continues to improve data quality. Many EPA programs utilize FRS and the existing IECP process is in place to facilitate receipt of suggested corrections to locational information. Despite these facts, only a very small percentage of IECP requests have involved locational updates. Further, for smaller facilities, especially those most likely to rely on street addresses, we believe an address is a reliable indicator of location.

Further, FRS will provide a complete picture of all locational information available on a facility. Because FRS provides metadata for the method, accuracy, and description of its locational data, it will be possible to know exactly the nature of the point being measured. The data user of such information will know whether they are using a point based on an outfall, a stack, or the center of the production. To the extent that a preferred location reported out of FRS is incongruent with the intended use of the TRI information, the data user may simply use another locational value for their purposes. This is a significant improvement on the current TRI locational values of unknown accuracy and relevance.

One commenter recommended that instead of removing section 4.6 from the TRI reporting forms, facilities should instead certify that the latitude and longitude data reported to TRI is obtained either from EPA's Facility Siting Tool or from a Global Positioning System (GPS) device. According to the commenter, this would ensure that facilities provide more accurate information.

The Agency does not agree with the commenters that there is an issue with the accuracy of locational information in FRS. Furthermore, we do not agree that increasing reporting burden on TRI reporters to provide locational data that is already available in FRS is an appropriate response. Transitioning to FRS use for locational information will allow users to not only have the most current locational information, but a clear indication of the method of collection, description of what is measured, and probable accuracy. They will know the reference point of the facility ( e.g. , the street address, a stack, or some permitted portion of the facility) for which locational information is provided. Finally, use of FRS will improve the overall quality of TRI facility locational information. FRS will be continuously gathering the best locational information based on metadata for the method, accuracy and description of what the latitude and longitude coordinates represent—including GPS-based data—as opposed to relying only on TRI-reported values of unknown precision. Furthermore, as stated in response to several previous questions, the IECP will provide yet another means for continually improving facility identification information.

2. Removal of Reporting Requirements for EPA Permit and Program Identification Numbers (Sections 4.8, 4.9 and 4.10 of Forms R and A). Three commenters emphasized the importance of EPA facility identification numbers to TRI data users, including various EPA program offices and the general public. One commenter cited, as an example, the use of Resource Conservation and Recovery Act (RCRA) identification numbers to calculate “double counting” of TRI chemical disposal transfers sent to TRI facilities that report the same chemicals again. The commenter stated that RCRA Identification numbers (RCRA IDs) allow transfers of chemicals (marked with RCRA IDs in section 6 of Form R) to be matched up with receiving TRI facilities (marked with RCRA IDs in section 4.8). The commenter also cited a 1998 report by a public interest organization to demonstrate the usefulness of collecting EPA program identification numbers in TRI. The report used the Underground Injection Control identification numbers to help analyze the completeness and accuracy of underground injection well data in EPA databases. According to the commenter, these examples are just a small sample of the many uses for this data. The commenter recommended that EPA conduct a small study to demonstrate that FRS data is of equal or higher quality to TRI's program identification data before removing these data elements from the TRI reporting forms.

EPA agrees with the commenters that the EPA program identification numbers in sections 4.8 through 4.10 of the TRI reporting forms are important and are used extensively by various EPA offices, the states, and the general public. This information will not be lost. Program identification numbers previously reported through TRI are already stored in the TRI database known as the Toxics Release Inventory System (TRIS) and will be available to data users through access tools offered by the Agency.

Nevertheless, in consideration of commenters' concerns, EPA conducted a study of RCRA IDs and concluded that FRS provided higher data quality than TRI reporting. In particular, the Agency examined over 10,000 TRI forms with RCRA IDs from the 2002 Reporting Year. These facilities were selected because they were used by the Office of Solid Waste in its annual evaluation of waste minimization progress for approximately thirty chemicals related to a Federal Government Performance and Result Act (GPRA) goal. In its evaluation, the Office of Solid Waste uses the RCRA IDs in conjunction with Form R sections 5 and 6 data to estimate the quantities of priority chemicals that may be contained in hazardous versus non-hazardous wastes. This activity is analogous to those of interest to the commenters.

Approximately 800 RCRA IDs were found in the TRI database that did not match RCRA IDs in the RCRAInfo database. Almost half of these RCRA IDs contained obvious transcription errors (i.e., “o” substituted for “zero”, etc). It is not clear to what extent the remainder represent more subtle transcription errors or other factors, although it is important to note that the Office of Solid Waste maintains an active data stewardship program. On the other hand, it is also important to note that the TRI Reporting Form has only two spaces for the listing of RCRA IDs. Because of differences in facility definitions, it is quite reasonable to assume that a current TRI facility could be associated with more than two RCRA IDs. Given these factors, and the fact that FRS contains RCRA IDs assigned by EPA's RCRA program, there can be little doubt that FRS is a more definitive source of information on RCRA IDs, and that cross program coverage will be improved by conversion to the use of FRS.

We believe that the few cases in which there may be information gaps can be addressed by improving communication between EPA's Office of Environmental Information, which operates both the TRI and FRS programs, and the other Agency offices responsible for the program identification data at issue. The one possible exception to this statement relates to IDs for underground injection sites reported under the UIC program. Presently, UIC IDs are not collected on the Federal level except as a part of TRI. States maintain these records. Unfortunately, because of form limitations, TRI reporters have not necessarily provided a full listing of UIC permitted wells. EPA's Office of Information Collection is working with the Office of Ground Water and Drinking Water, however, to gather UIC information from individual states to include in FRS. It is anticipated that states will begin to provide this more complete information in 2006, in advance of the first data release to be affected by this rule.

One commenter expressed concern about a time lag in the availability of EPA program identification data if EPA removes the program identification numbers from the TRI reporting forms. The commenter cited the importance of this data to a variety of community groups across the country and urged EPA to quickly address this potential problem so the public would not experience a lag in its use of TRI Explorer.

As discussed above, the FRS already stores EPA program identification data. EPA will ensure that there is no lag in the availability of such data in TRI Explorer or Envirofacts, the two EPA data applications that TRI data users rely upon to access TRI-related data. By the time that the 2006 TRI Public Data Release (PDR) is published, all applicable FRS data will have been copied into the TRI database for publication.

One commenter asserted that the EPA program identification numbers on the TRI reporting forms are used by state environmental agencies as a cross reference for other program applications. According to the commenter, at least one state uses the data as a link to hazardous waste generator reporting, in addition to its use as a key identifier for TRI facilities. The commenter expressed concern that the proposed rule did not address how states would receive these data elements if they are not supplied with the Form R. The commenter contended that many states have developed their own data systems to manage the TRI reports filed with the state and they regard TRI reporting as a joint EPA-State partnership since facilities are required to file their forms at both the Federal and State levels. The commenter expressed concern that the data elements states need to manage their TRI data will be lost if this change is finalized.

EPA is committed to ensuring that states and TRI data users have accurate program identification numbers associated with TRIFIDs. To ensure that these data are available to states in a timely fashion after the TRI report is filed with EPA's Reporting Center, the Agency will use the Exchange Network to share data with states using the web services available through the Central Data Exchange (CDX). For states that may not yet be web-enabled, EPA will make available other electronic means to retrieve program identification numbers for the TRIFIDs of interest.

In the proposed rule, EPA asked for comment on removing part II, section 5.3 column C from Form R. This data element applies to discharges to receiving streams and water bodies. Column C requires facilities to indicate the percentage of the total quantity of the EPCRA section 313 chemicals reported in column A (Total release to that water body) that are discharged due to stormwater. Column C was the only part of section 5.3 affected by this proposal. Changes to the rest of part II, section 5.3 were not included in this proposal.

A number of commenters supported the removal of column C, claiming that this data element is difficult to accurately estimate. Others in favor of removing column C from Form R asserted that there does not appear to be any significant use of this data element by the public or other TRI stakeholders.

Three commenters, however, opposed removing section 5.3, column C. One commenter noted that this data element is important to understanding periodic spikes in overall water releases that may be caused by stormwater run-off. According to this commenter, directing data users to the NPDES system to obtain this information is not an adequate option because integrating data across EPA's databases is not an easy task. Further, the commenter asserted that phosphate mining stacks may be an example of a sector that is not part of the NPDES system but reports significant quantities of toxic chemicals contributed by stormwater. The commenter requested EPA to examine whether there are other sectors for which the public cannot get the same data from NPDES before eliminating this data element.

Another commenter stated that it is not uncommon for the overall water releases reported in TRI to rise or fall because of a few facilities with large releases associated with stormwater. The commenter contended that stormwater runoff often dominates such large releases, and the inclusion of this data element allows users to better understand what drives year-to-year variations in water release data, and to detect whether increases were due to production changes or rainfall. According to the commenter, if column C were to be removed TRI data users would have to cobble together information about the percentage of stormwater contribution from various EPA database sources.

Yet another commenter stated that these particular percentages have been useful to the public when making year-to-year comparisons of discharges to water. According to this commenter, these numbers can vary wildly from year-to-year, and having information about the percentage attributed to stormwater runoff, versus the amount that could be attributed to a discharge of toxic chemicals, is critical information for the public. The commenter asserted that this proposed change represents a significant loss of data.

Based on the public comments received and additional information that has recently come to light from EPA's Office of Water, the Agency now better understands how this data element is used by EPA program offices, states, communities, researchers and other TRI data users. The Agency has thus decided not to remove column C of section 5.3 from Form R. While EPA acknowledges that it may be difficult for some facilities to estimate the percentage of the total quantity of toxic chemicals contributed by stormwater, EPA believes that this data element provides important information that helps researchers, communities and other TRI data users make year-to-year comparisons of discharges of toxic chemicals to water that is unavailable elsewhere. One example of how these data are used comes from the Division of Engineering and Analysis in EPA's Office of Water, which uses this data element in its pollution control activities and the Agency's biennial report to Congress under section 304 B of the Clean Water Act.

As to the availability of this information from other sources, the commenters were again divided. There clearly are areas of non-coverage by other databases and, at a minimum, it would be difficult to pull the information together in one place to inform the public and other data users. Furthermore, even if the information could be pulled together in one place, there inevitably would be difficulties introduced by trying to harmonize TRI and NPDES release totals between two databases that may have differences in assumptions or measurement approaches. We believe the continued collection of this data element best fulfills the EPCRA reporting goals of the program and therefore, EPA will not be finalizing the proposal to eliminate column C of section 5.3, part II of the Form R.

As explained in the proposed rule, section 313(g)(1)(C)(iii) of EPCRA states that facilities must report “for each wastestream, the waste treatment or disposal methods employed, and an estimate of the treatment efficiency typically achieved.” 42 U.S.C. 11023(g)(1)(C)(iii). Data elements collecting waste treatment information and related details, such as whether the efficiency estimate was based on operating data, were implemented through a 1988 rule. 53 FR 4516-18 (Feb. 16, 1988). For recycling activities, section 6607(b)(2) of the PPA states facilities must report “the amount of the chemical * * * which is recycled * * * and the process of recycling used.” 42 U.S.C. 13106(b)(2). Facilities fulfill these obligations, in part, by reporting qualitative information regarding their on-site waste treatment and recycling of EPCRA section 313 chemicals in part II, section 7 of the Form R.

In the proposed rule EPA asked for comment on the following modifications to part II, section 7 of the Form R:

(1) Simplifying column B of section 7A (Waste Treatment Method(s) Sequence) by replacing 64 codes used to describe the various waste treatment methods with a modified version of the 18 hazardous waste treatment codes currently used in EPA's RCRA Biennial Report;

(2) Eliminating column C of section 7A (Range of Influent Concentration);

(3) Simplifying column D of section 7A (Waste Treatment Efficiency Estimate) by replacing the requirement to submit an exact percentage with a range code;

(4) Eliminating column E of section 7A (Based on Operating Data); and

(5) Simplifying section 7C (On-Site Recycling Processes) by replacing 16 codes used to report particular recycling methods with 3 reclamation and recovery codes used in EPA's RCRA Biennial Report.

EPA received comment on each of these five proposed modifications. A summary of these comments and responses to them are addressed in turn in the following sections.

1. Part II, Section 7A—On-Site Waste Treatment Methods and Efficiency (Column B—Waste Treatment Methods(s) Sequence). EPA received a number of comments in response to the proposal to simplify column B of section 7A—Waste Treatment Method(s) Sequence, by replacing the 64 codes (see page 55 of the 2004 Toxic Chemical Release Inventory Reporting Forms and Instructions (EPA 260-B-05-001, January 2005) at http://epa.gov/tri/report/index.htm#forms ) used to describe the various waste treatment methods applied to EPCRA section 313 chemicals treated on-site with a modified version of the 18 hazardous waste treatment codes (H040-H129) currently used in EPA's National Biennial RCRA Hazardous Waste Report, also known as the RCRA Biennial Report. (See page 63 of the 2003 Hazardous Waste Report Instructions and Forms (booklet) [EPA Form 8700-13 A/B; 11/2000] available at http://www.epa.gov/epaoswer/hazwaste/data/br03/03report.pdf ).

A majority of the commenters supported reducing the number of on-site waste treatment codes, claiming that this change will reduce burden for TRI reporters. Further, by making the reporting codes consistent with the RCRA Biennial Report, TRI reporting will be made easier for those facilities familiar with RCRA.

EPA agrees with the commenters that reducing the number of on-site waste treatment codes and making them more consistent with the reporting codes used in EPA's RCRA Biennial Report will result in less reporting burden for TRI reporters. The vast majority of comments submitted about this section of the proposal confirmed EPA's belief that facilities recognize and appreciate EPA's efforts to provide more consistency between its various reporting requirements and program activities. The comments also confirmed our belief that there would be no significant loss of data quality if the codes were consolidated.

One commenter supported the proposed change but cautioned that it would actually increase the burden of TRI reporting since not all facilities file RCRA Biennial Reports, and these facilities may be unfamiliar with the RCRA codes. The commenter expressed concern about those reporters who would have to familiarize themselves with the new codes and revise their TRI analysis accordingly. This commenter was also concerned that reporters that fill out both TRI annual and RCRA biennial reporting forms would still have an initial period where TRI analysis mechanisms already in place would have to be adjusted.

EPA appreciates the commenter's concern regarding those reporters unfamiliar with the reporting codes in the RCRA Biennial Report. EPA believes, however, that in the vast majority of cases, facilities will be familiar with these codes. As explained in the proposed rule, eighty percent of TRI reporters report a RCRA identification number on Form R, part I, section 4.8. The majority of facilities with an assigned RCRA identification number also file a RCRA Biennial Report. While there may be an initial period of adjustment, EPA believes that the long-term burden reduction benefits greatly surpass any short-term drawbacks. To facilitate a smooth transition, EPA will include additional information in the annual TRI reporting forms and instructions manual. The instructions will define each of the new codes, explain the few minor differences that exist between the new TRI codes and the RCRA Biennial Report codes, and describe the relationship between the old treatment codes and the new ones.

Some commenters opposed the proposal to replace the 64 waste treatment codes with the 18 codes used in the RCRA Biennial Report. One commenter recommended that EPA not use the RCRA H treatment codes and instead, use a shorter, more concise list of codes.

EPA disagrees with the commenter that a shorter list of codes should be used for section 7A column B instead of the RCRA H treatment codes. We believe that since the majority of TRI reporters also report their hazardous waste treatment methods in EPA's RCRA biennial reporting process, a consistent use of reporting codes will result in more reduced reporting burden than shortening the current TRI list of codes. During the development of the proposed rule, the Agency considered reducing the number of RCRA H treatment codes for Form R, but we decided that a slightly modified version of all 18 different RCRA H treatment codes is needed to adequately capture the various types of hazardous waste treatment methods used by facilities.

Another commenter expressed opposition to reducing the number of treatment codes, emphasizing the desire for accurate reporting rather than “simplified” reporting. A second commenter stated general opposition to this proposed change contending that such a change would represent a loss of data.

EPA disagrees with these commenters. No specific information or compelling examples were provided by commenters regarding potential data loss if the treatment codes in section 7A column B were reduced and made consistent with the hazardous waste treatment codes used in the Agency's RCRA Biennial Report. Rather, EPA believes that this change will improve data quality because it will prevent reporters from over-specifying their treatment trains. Consequently, EPA will replace the 64 waste treatment codes with a modified version of the 18 hazardous waste H treatment codes used in the RCRA Biennial Report (plus seven air emission treatment codes as discussed in the following paragraphs) for use in section 7A, column B of Form R.

Some commenters who were generally supportive of the proposal to use the RCRA treatment codes, raised specific concerns. For example, ten commenters expressed concerns regarding the removal of air emissions treatment codes in the proposed consolidated treatment codes for section 7A, column B. Several of these commenters recommended that the Agency retain the seven air emissions treatment codes (A01 to A07) currently used for reporting in Section 7A, column B. Many commenters stressed their concern about the lack of codes to cover the treatment of gas streams, which one commenter asserted was the primary means by which utilities reduce their toxic chemical releases, and the primary waste treatment method used at electric power plants. Another commenter stated that since the on-site treatment of acid aerosols are among the most voluminous gas streams reported in Section 8.6, it was especially important to make air emissions codes in section 7A column B available to accurately capture this type of treatment. Without specific air emission codes, they maintained that facilities would have to use the code for “other treatment” (H129) and this code would not provide any useful information to TRI data users.

EPA agrees with the commenters that it is important to adequately describe the treatment methods used for air emissions and gas streams. Based on the comments submitted, the Agency better understands and appreciates the necessity to include air emissions codes in section 7A column B of Form R. While EPA proposed the complete consolidation of the treatment codes in section 7A column B to make them consistent with the hazardous waste codes used in the RCRA Biennial Report, we inadvertently overlooked the fact that the RCRA codes don't cover air emissions very well. EPA agrees with the commenters that a substantial amount of valuable data would be lost if the seven existing codes for air emissions were to be removed. Consequently, this final rule retains the seven existing air emissions codes used in section 7A column B.

Several commenters questioned why EPA omitted one of the RCRA H treatment codes, H083, from the list of 18 hazardous waste treatment codes proposed for use in section 7A column B. Several of these commenters requested that EPA clarify whether this was an intentional omission.

EPA inadvertently omitted treatment code H083 from the list of 18 hazardous waste treatment method codes that were proposed to replace the existing 64 treatment codes in section 7A, column B of Form R. EPA recognizes the need to include treatment code H083 to capture air or steam stripping treatment and has included this code in the final rule.

One commenter questioned how the phrase used in a parenthetical in the proposed treatment code H083 “(as the major component of treatment),” would apply in sequential on-site treatment methods where the approach is simply one step in a multi-step process. The commenter noted that the same parenthetical phrase might be applied to proposed treatment code H082 as well if EPA used that code in the final rule. This commenter contended that since several of the other treatment codes proposed for use in section 7A column B did not include the parenthetical phrases used in the RCRA Biennial Report, “(as the major component of treatment),” should be omitted from codes H082 and H083 as well.

EPA appreciates receiving the comment requesting clarification on the use of the parenthetical phrase “as the major component of treatment” at the end of the treatment codes H083 and H082. EPA agrees that the use of this parenthetical may cause confusion regarding sequential on-site treatment methods where the approach is simply one step in a multi-step process. Consequently, EPA has removed the parenthetical “as the major component of treatment” from H083 (Air or steam stripping) and H082 (Adsorption).

A commenter requested that EPA clarify the use of the RCRA hazardous waste treatment codes H111 (stabilization or chemical fixation prior to disposal at another site) and H112 (macro-encapsulation prior to disposal at another site) in section 7A column B. The commenter noted that the use of the phrase “at another site” would pose a problem for TRI reporting facilities with on-site landfills, as well as for facilities that use stabilization for the final treatment of their wastes. The commenter recommended that the phrase, “at another site” be removed from the treatment code description in the final rule.

EPA agrees with the commenter and is removing the phrase, “at another site” from the description for treatment codes H111 (Stabilization or chemical fixation prior to disposal) and H112 (Macro-encapsulation prior to disposal). We agree that the use of the phrase “at another site” would unnecessarily restrict the use of these codes to waste intended to go off-site, and believe that the removal of this phrase will avoid confusing reporters who otherwise can use these codes to describe their on-site treatment methods.

Four commenters requested clarification of proposed treatment code H121—Neutralization only. They pointed out that the word “only” would eliminate the use of this code by facilities that use neutralization as one of several steps in a sequence of waste treatment methods, rather than as the single method of treatment. One commenter contended that such a restriction would force facilities that use it as one of several waste treatment method steps, to use treatment code H129—Other treatment. Two commenters requested that EPA consider removing the word “only” from the treatment code description for H121. Another commenter suggested that the word “only” is relevant to reporting under the RCRA Biennial Report and does not serve the purposes of TRI reporting.

EPA agrees with the commenters regarding the use of the word “only” in the description of proposed treatment code H121. We acknowledge that the word could restrict the use of that code unnecessarily and force facilities that use neutralization as one of several steps in a sequence of waste treatment methods to instead use treatment code H129—Other treatment. EPA believes that more useful information can be derived from the proper use of treatment code H121 than H129 by facilities that use neutralization as either their only treatment method or as one of several steps in their waste treatment process. The Agency has thus removed the word, “only” from the H121 treatment code description to be used in section 7A column B.

In accordance with all of the above, this rule finalizes the following list of waste treatment codes for reporting in part II, section 7A, column B of Form R:

2. Part II, Section 7A—On-Site Waste Treatment Methods and Efficiency (Column C—Range of Influent Concentration). As discussed in the proposal to eliminate section 7A, column C—Range of Influent Concentration, EPA explained that column C was implemented in the 1988 rule in which EPA initially published the Form R. 53 FR 4518. During the development of the 1988 rule, EPA believed that concentration information would assist users in determining whether effective treatment methods may be available for wastes containing different amounts of a given chemical because the effectiveness of most treatment methods is concentration-dependent. See Proposed Rule, 52 FR 21152, 21163 (June 4, 1987). Further, an indication of influent concentration would aid in the evaluation of treatment methods across industries and therefore put the data into better perspective. 53 FR 4518. As expressed in the proposal, contrary to the intended uses of this information, EPA has not identified a specific Agency use for the information in section 7A, column C and does not believe that this information is widely used by states or the public.

To date, completion of column C requires facilities to enter a numerical code, from the following list, indicating the concentration range of the EPCRA section 313 chemical as it enters the treatment step:

In the proposed rule, EPA also asked for comment on whether as an alternative reporting under section 7A, column C should be optional, with facilities having a choice as to whether to report the influent concentration range of the EPCRA section 313 chemical.

Sixteen commenters expressed support for removing the range of influent concentration data element under section 7A column C. One commenter asserted that this change would provide the most significant amount of burden reduction of all the changes proposed in this rule. Several commenters stated that calculating these concentrations for each EPCRA section 313 chemical (or chemical category) in each waste stream is very time consuming and often requires numerous assumptions. One commenter asserted that facilities have spent upwards of 40 hours or more to report on this data element, reflecting the significant burden associated with this requirement.

Commenters also contended that the resulting data are of little value to the general public. One commenter stated that since certain facilities, like power plants, do not normally sample the concentrations of various process streams before treatment occurs, the reported values in column C are estimates that have little value to the general public. Commenters claimed that the removal of the range of influent concentration would not result in a significant loss to the TRI community. In response to this proposed removal of column C of section 7A, one commenter stated that data users can determine from the remaining information in section 7A that a facility has a given chemical in its influent and that it is treating that chemical with a specific treatment method to a specific percentage range of efficiency. Commenters maintained that removing this data element would not impact the usefulness of the waste treatment efficiency estimate in Column D.

Further, several commenters expressed support for entirely removing the data element rather than providing an option to report this data element. They contended that allowing for such an option would create confusion among reporters and inconsistencies in the TRI database. One commenter added that it is unlikely that facilities would provide data should the requirement to report data in Column C be made optional.

EPA agrees with the commenters that removing the data element for range of influent concentration under section 7A column C would reduce a significant amount of burden for TRI reporters. We acknowledge that a large number of facilities do not collect monitoring data and instead, provide estimates for this data element on influent concentration. The Agency also appreciates the information provided by commenters regarding whether this data element should be made optional. We agree with the commenters that such an option could create confusion among reporters, and due to the inconsistent amount of data that would be reported, we believe that it would provide information of very limited value to the public.

In the proposal, EPA stated its belief that this information is not widely used by states and the public as was anticipated when this data element was first included on Form R. EPA did not receive any comments that opposed the removal of this data element, nor any comments that provided information on the extent of its use or why the data element was important to retain. Therefore, EPA believes that its original 1988 assumptions that this information would be valuable to the public have not been substantiated and has decided to finalize the elimination of this data element.

3. Part II, Section 7A—On-Site Waste Treatment Methods and Efficiency (Column D—Waste Treatment Efficiency Estimate). As discussed in the proposal, the waste treatment efficiency (expressed as a percentage) reported in section 7A column D represents the percentage of the TRI chemical destroyed or removed (based on amount or mass). Under EPCRA section 313(g)(1)(C)(iii), facilities are required to submit an estimate of the treatment efficiency typically achieved by the waste treatment or disposal methods employed for each waste stream. To date, facilities are required to enter an exact percentage in this column of the form. In the proposed rule EPA asked for comment on allowing facilities to report their treatment efficiency as a range instead of an exact percentage. The Agency proposed using the following ranges in column D:

This proposed set of ranges was developed by analyzing a subset of the treatment efficiencies reported in reporting year 2002. Most of the efficiencies were between 90% and 100%. The proposed range codes reflect this reporting trend by grouping three of the codes between 90% and 100% and having the other three codes represent larger ranges between 0% and 90%.

Commenters expressed general support for allowing TRI reporters to use range codes instead of a specific percentage number in section 7A column D. Several commenters claimed that a single value estimate suggests far greater certainty about removal efficiencies than exists in the real world and that it is difficult to estimate a precise percentage for the treatment efficiency of the method used by a facility. Another commenter stated that since electric utility power plants operate in a variety of different ways over the course of a year and because fossil fuels are heterogeneous, a single treatment efficiency value is nothing more than a long-term average value. One commenter contended that the use of ranges is a more reasonable approach, and covers any variance in the treatment efficiencies. The commenter added that the use of ranges would avoid the appearance of a precise estimate when the estimate was actually based on professional judgment.

EPA agrees with the commenters that allowing ranges to be reported in section 7A column D provides a more realistic estimate of on-site waste treatment efficiency. We believe that the use of ranges will provide burden relief to facilities that currently find it difficult to estimate an exact percentage due to the reasons pointed out by commenters regarding facility operations. We do not believe that this change will result in a loss of data since the data element will still consist of an estimate of the treatment efficiency typically achieved by the waste treatment or disposal methods employed for each waste stream. We believe it will instead more accurately reflect the treatment efficiency variations that occur over the course of a facility's yearly operation.

One commenter asserted that the use of range codes for treatment efficiencies would not be a labor saver since its emissions-estimating-software already calculates the overall treatment efficiencies. A second commenter stated that in order to report within one of the ranges proposed by EPA, a facility must still undergo the analysis required to obtain an exact percentage. The commenter noted that this is particularly true in the higher ranges, where most reported efficiencies fall. The commenter concluded that burden reduction would not result from this change.

EPA disagrees with these commenters that little, if any, burden would be eliminated as a result of this change. The majority of commenters supported this change, asserting that it is difficult to derive an exact treatment efficiency percentage estimate for this data element. Even for facilities with access to sophisticated emissions-estimating software that allows faster calculations of emissions estimates, such software does not necessarily capture the uncertainty in the estimate, and even those facilities may realize a reduction in burden through the use of ranges.

One commenter asserted that the proposed change in section 7A column D could create problems with reporting in other sections of Form R. As an example, this commenter referred to problems with the use of ranges in sections 5 and 6 of Form R. According to the commenter, when the ranges in those sections are compared against the values reported in section 8 of Form R, the values do not balance (e.g., often the use of range codes will result in a “NOTE” error on the Facility Data Profile, because the software evidently uses the midpoint of the range).

EPA disagrees with this comment. EPA does not believe that the use of range codes in section 7A column D will affect reporting in other sections of the form, such as sections 5, 6 or 8. However, EPA will review the TRI-ME and data quality software to ensure that this change does not create errors in data processing.

Two commenters opposed the change to range codes in section 7A column D due to general concerns about the use of range codes. One of these commenters stated that the use of range codes in section 7A column D would represent a loss of data. The commenter said that range codes would also limit information without reducing the amount of time and resources a facility would need to estimate its efficiency. The second commenter stated that range codes set a bad precedent and this commenter had difficulty understanding how range codes would reduce burden since facilities would still need to calculate the general efficiency percentage in order to determine the appropriate range.

EPA disagrees with these commenters. Range reporting is already used in a variety of Form R data elements and we do not believe that applying range code reporting to this data element will set any kind of precedent that would degrade the quality of TRI data. As many commenters noted, the data reported in section 7A column D are generally based upon an estimate, rather than specific monitoring data. We believe that the use of range codes in this data element will more accurately reflect an estimated value without sacrificing data quality.

Two commenters who supported the proposed change expressed concern about the limited number of ranges provided in the high-end of the proposed ranges. They prefer that EPA either allow TRI reporters, particularly incinerators, to report a specific on-site waste treatment efficiency percentage estimate, or that EPA provide additional efficiency percentage range categories at the upper end of the range scale. These commenters claimed that this was necessary to prevent un-permitted incinerators that do not meet RCRA-mandated treatment efficiencies for some chemical wastes, to report in the highest performing efficiency range. According to these commenters, the absence of these additional upper-end range categories would result in accurate but misleading information that would be contrary to the goals of Community Right-to-Know and arguably the Data Quality Act. The commenters asserted that the absence of these additional upper-end ranges would contradict the Agency's attempt to meet the Pollution Prevention Act's goal of allowing the public to understand the ultimate destruction of toxic chemicals. Both commenters recommended that if upper ranges are used instead of allowing reporters to use specific percentages, the ranges should be changed to the following: greater than 99.9% to 99.99%, greater than 99.99% to 99.9999%, and greater than 99.9999%.

EPA appreciates receiving specific recommendations and agrees with the commenters that some adjustments should be made to the proposed upper ranges of treatment efficiency estimates for use in section 7A column D. We have used similar, although not exactly the same treatment efficiency ranges as those proposed by the commenters. The upper-level ranges that EPA used in the final rule include the following: Greater than 99% to 99.99%, greater than 99.99% to 99.9999%, and greater than 99.9999%. These ranges were selected in order to ensure an equal distribution of the range categories, and to allow data users to continue to distinguish the performance of combustion devices in excess of RCRA hazardous waste and TSCA PCB incinerator standards. EPA believes that these revised range categories will provide a means for those TRI reporters who are achieving a high degree of treatment efficiency to communicate that desirable outcome to the public. EPA does not believe that this level of specificity will diminish the burden saving associated with the use of ranges because facilities in the high-efficiency ranges will have readily-available knowledge about the efficiency of their processes since those high efficiencies are required by other programs' regulatory standards. EPA is not going to allow TRI reporters, however, to report a specific percentage amount in section 7A column D since it could result in two sets of confusing data that would be impossible to combine for any meaningful assessment.

Four commenters supported the proposed change but recommended reducing the total number of ranges used in section 7A column D. These commenters favored reducing the number of ranges in the mid-range. Three of the commenters proposed combining proposed ranges E2 (greater than 95% to 99.9%) and E3 (greater than 90% to 95%), so that there would be one category that covers greater than 90% to 99.9%. One commenter recommended changing the proposed ranges to 0 to 50%, greater than 50% to 90%, greater than 90% to 99%, and greater than 99%.

In response to the comments on modifying the ranges, in this rule EPA has reduced the number of reporting ranges for the lower and mid-ranges from four categories to two categories (greater than 0% to 50% and greater than 50% to 95%). However, the Agency cannot agree to consolidate the upper range codes. If, as the commenters suggested, the Agency consolidated greater than 90% to 99.9% into one range, over half of all respondents would be in that category. By dividing the ranges into greater than 0% to 50%, greater than 50% to 95%, and greater than 95% to 99%, the new categories will represent 18%, 20% and 29%, respectively of all responses. EPA believes these ranges provide a balance that is adequate for realizing burden reduction, while simultaneously distinguishing major differences in treatment performance.

Based on all of the above, EPA is finalizing the following ranges for use in part II, section 7A, column D:

4. Part II, Section 7A—On-Site Waste Treatment Methods and Efficiency (Column E—Based on Operating Data). As discussed in the proposed rule, column E of section 7A requires facilities to indicate “Yes” or “No” as to whether the waste treatment efficiency reported in section 7A, column D is based on actual operating data such as the case where a facility monitors the influent and effluent wastes from this treatment step. When this data element was first implemented, EPA believed that this information would be valuable to users because it would indicate the relative quality and reliability of the efficiency estimate figure (see 52 FR 21152, 21163). EPA explained in the proposed rule that it is unaware of any significant use of this data. EPA thus proposed eliminating column E of section 7A of Form R.

Several commenters supported the removal of section 7A, column E. Two commenters stated that if the proposed changes to section 7A, columns C (Range of influent concentration) and D (Waste treatment efficiency estimate) were finalized, then the data in column E would not provide meaningful data to the public. Another commenter asserted that most of their treatment efficiencies are based on company-derived estimated efficiencies rather than on monitoring data.

EPA agrees with the commenters that section 7A, column E would not provide meaningful information to the public without specific percentage estimates in section 7A, column D. Since the proposed modification of column D to range codes is being finalized through this rule for the reasons discussed above, and because EPA did not receive any comments on the usefulness of column E data, EPA has finalized the elimination of column E.

5. Part II, Section 7C—On-Site Recycling Processes. As discussed in the proposed rule, facilities that conduct on-site recycling currently use sixteen codes (see page 58 of the 2004 TRI Reporting Forms and Instructions (EPA 260-B-05-001, January 2005) at http://epa.gov/tri/report/index.htm#forms ) to report the particular recycling method(s) applied to each EPCRA section 313 chemical being recycled on-site. For each Form R filed, facilities may report up to ten “R” (On-site recycling) codes, as appropriate.

EPA proposed eliminating these sixteen recycling codes and replacing them with the following three reclamation and recovery management codes used in EPA's RCRA Biennial Report:

For further information about the RCRA reclamation and recovery management codes, see EPA's RCRA Biennial Report, which can be found at: http://www.epa.gov/epaoswer/hazwaste/data/br03/03report.pdf. See the PDF screen page 63 of the 80 page report.

Fourteen commenters supported reducing the number of on-site recycling codes for use in section 7C. Several commenters stated that such a change would promote consistency between the RCRA hazardous waste and TRI reporting programs. One commenter stated that this change would reduce unnecessary complexity. Several commenters expressed support for the change because they felt that the three proposed codes adequately cover the range of recycling activities that might be undertaken at a facility. In addition, the vast majority of commenters contended that the change would not compromise the utility of TRI program data.

EPA appreciates receiving comments that confirmed the Agency's belief that the use of fewer codes will simplify reporting in section 7C of Form R. Further, by making the TRI reporting process more consistent with the RCRA biennial reporting process we will facilitate even greater use of data in both the TRI and RCRA programs. Based on these comments, EPA has finalized this proposed change. However, in order to avoid software reprogramming costs, the Agency has decided to maintain a three digit numerical code for this data element, and thus, will not use the first zero in each of the three RCRA reclamation and recovery management codes. Otherwise, the codes will conform with the reclamation and recovery management codes in the RCRA Biennial Report. The codes to be used in part II, section 7C of Form R will thus be as follows:

As discussed in the proposal, section 6607(d) of the Pollution Prevention Act (PPA) requires that reporters be provided the opportunity to include “additional information regarding source reduction, recycling, and other pollution control techniques” with their reporting form. 42 U.S.C. 13106(d). At the present time, EPA requires each facility to answer a “yes/no” question to indicate whether the facility has included such information. Facilities with such information then attach a physical copy describing their activity. Because such information is long and in varied forms, it has not been coded into the TRI database. This lack of coding creates a large potential burden for users of information seeking to identify innovative programs or processes. Accordingly, EPA proposed minor changes to this data element to improve public access to such information.

As explained in the proposal, an optional text box feature would be added to EPA's TRI-ME reporting software to enable reporting facilities to submit a brief description of their applicable source reduction, recycling, and other pollution control techniques and activities. In addition, reporters would be provided with instructions in EPA's “Toxic Chemical Release Inventory Reporting Forms” on how to denote on their Form R submission that they are providing a brief summary and/or more detailed information on one of these activities. Form R would be modified to include a checkbox allowing facilities that provide additional information to check “yes” if they use the text box feature or send EPA additional information in hardcopy. Facilities that do not wish to provide additional information would no longer need to check “no” in section 8.11.

With this revision, EPA would make this additional information available on the Agency's public access Web site for the first time, through one of EPA's system applications, such as Envirofacts. This change would provide TRI data users with improved access to the additional information that facilities submit about their source reduction, recycling, and other pollution control techniques.

Several commenters supported the removal of the current “yes/no” question in section 8.11 of Form R, and the addition of an optional text box feature in EPA's TRI-ME reporting software. As one commenter stated, TRI reporters have up until now been forced to submit additional information about their source reduction, recycling, and other pollution prevention techniques separately on paper, rather than electronically. The addition of an electronic text box would allow facilities to more easily submit such information. Another commenter remarked that such additional information was not readily accessible in the past since it was only available on paper.

EPA agrees with commenters that the removal of the current question in section 8.11 and the replacement of it with an optional electronic text box for reporting additional information about source reduction, recycling, and other pollution prevention techniques will increase the accessibility and usefulness of such information. We also believe that the use of an electronic text box, as opposed to paper submissions, will increase the likelihood that reporters will submit such information since it will be easier to do so. Accordingly, EPA has finalized this section of the proposal.

One commenter did oppose this change in 8.11, claiming that while the text box feature is optional, many reporters will feel compelled to enter information. The commenter contended that compliance issues could arise if the information submitted was not completely accurate or precise and this could result in discouraging submission of such information.

EPA disagrees with this commenter. Reporters have never been required to include additional information in section 8.11, nor would they be required to do so under this change from paper to electronic submission. In fact, under the proposed change, section 8.11 would be entirely optional since those who do not wish to include additional information would no longer need to check the “no” box. Instructions for using the text box will clearly state that its use is optional. While EPA does not believe that compliance issues would arise from use of the text box, the same compliance issues triggered by inaccurate information could have arisen under the current paper-only method of submission.

As discussed in the proposed rule, in addition to streamlining the TRI Reporting Forms, EPA also proposed two technical corrections to 40 CFR 372.85.

Prior to 1991, EPA published the most current version of the Form R and Reporting Instructions in its regulations at 40 CFR 372.85(a). On June 26, 1991, 56 FR 29183, EPA published a final rule that replaced the full version of the form and instructions in the regulation with a Notice of Availability of the most current version of the Form R and Reporting Instructions and an address from which to obtain copies.

The address for requesting the current version of Form R is outdated. Moreover, the likelihood exists that the address may change from time to time in the future because the entity managing Form R distribution may change. Therefore, EPA is amending 40 CFR section 372.85(a) by giving a reference to the TRI Web site to obtain the Form R instead of publishing in the regulations an address from which to request copies of TRI forms. EPA is also providing a phone number from which to request TRI publications.

EPA received one comment on this section of the proposal. The commenter expressed concern that the proposed change could be misread to imply that web-based reporting is the only available reporting option.

This modification should not be construed to imply that web-based reporting will be the only reporting option. This modification simply updates the method by which a facility can obtain a copy of the TRI Forms. After a facility obtains and completes its form(s), web-based reporting can have huge potential advantages for both respondents and the Agency, allowing respondents to receive pre-populated forms and the Agency to reduce processing costs by over 90%. EPA recognizes, however, that there may be facilities that do not yet have suitable internet connectivity. Accordingly, the modification to section 372.85(a) does not require reporting by any specific method.

The 1991 rule also added a list describing the Form R data elements at 40 CFR 372.85(b). This list includes Paragraph 18, which describes a pollution prevention data element. This data element was optional and set to expire after the 1990 reporting year. After the 1991 rule was finalized, EPA incorporated mandatory pollution prevention reporting elements pursuant to the Pollution Prevention Act of 1990. 57 FR 22330. EPA believes the presence of the outdated Paragraph 18 element in the regulations is unnecessary since it has expired. Further, the Agency is concerned that its continued presence in the regulations may lead to confusion about whether pollution prevention data are required elements of the Form R. Therefore, EPA is deleting 40 CFR 372.85(b)(18) for the purposes of order and clarity. This action will not affect the reporting obligations found in section 6607 of the PPA; facilities must continue to report pollution prevention information as collected in part II, section 8 of the Form R.

Under Executive Order 12866, 58 FR 51735, the Agency must determine whether this regulatory action is “significant” and therefore subject to formal review by the Office of Management and Budget (OMB) and to the requirements of the Executive Order, which include assessing the costs and benefits anticipated as a result of the proposed regulatory action. The Order defines “significant regulatory action” as one that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. Pursuant to the terms of Executive Order 12866, it has been determined that today's rule is a significant regulatory action. The Agency therefore submitted the proposed action to OMB for review. Changes made in response to OMB suggestions or recommendations are documented in the docket to today's final rule.

To estimate the cost savings, incremental costs, economic impacts and benefits from this rule to affected regulated entities, EPA completed an economic analysis for this rule. Copies of this analysis (entitled “Economic Assessment of the Burden Reduction—Modifications to Form R—final Rule”) have been placed in the TRI docket for public review.

1. Methodology. To estimate the cost savings, incremental costs, economic impacts and benefits of this rule, the Agency estimated both the cost and burden of completing the TRI reporting forms, as well as the number of affected entities. The Agency used the 2002 reporting year for TRI data as a basis for these estimates. First, the Agency identified the number of PBT and non-PBT respondents completing Form R and non-PBT respondents for Form A (PBT respondents are currently ineligible to use Form A). Then the Agency determined the unit burden savings and cost savings per form using an engineering analysis. Burden savings for the various forms were calculated separately because not all final modifications appear on every form. The total burden and cost savings associated with the final modifications to Forms R and A are the product of the unit burden and cost savings per form times the number of forms (Forms R and A) submitted.

2. Cost & Burden Savings Results. Table 1 and Table 2 summarize the number of 2002 first and subsequent year Forms R and A submissions.

EPA estimates that the total annual burden savings for this rule are 52,060 hours. EPA estimates that the total annual cost savings for this rule are $2.26 million. Average annual cost savings for facilities submitting Form Rs or Form As are between $4 and $100 per form or between $12 and $300 per facility.

3. Impacts on Data . EPA evaluated the potential impacts on data from removing or simplifying these specific data fields and determined that the risk of significant data loss is minimal. In the case of some elements ( e.g. , latitude and longitude information), reporting is being discontinued because information already exists or can be developed from other EPA data systems. In other cases ( e.g. , changes in waste management or recycling reporting codes), streamlining is being proposed to bring reporting categories in line with existing practices of other Agency program offices which should ultimately increase the utility of the information. Range reporting options being considered include intervals selected to maintain relatively equal population subcategories which should maintain the utility of the data while minimizing the potential uncertainty associated with individual values. The Agency also conducted outreach to potentially affected stakeholders to solicit any specific uses of the fields being removed or simplified. Based on that outreach, the Agency believes the potential for significant data loss to the public to be minimal.

We have prepared a document estimating the recordkeeping and reporting burden savings associated with this rule. We calculate the reporting and recordkeeping burden reduction for this rule as 52,060 hours and the estimated cost savings as $2.26 million. Burden means total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose, or provide information to or for a federal agency. That includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business that has fewer than either 1000 or 100 employees per firm depending upon the firm's primary SIC code; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

The economic impact analysis conducted for today's rule indicates that these revisions would generally result in savings to affected entities compared to baseline requirements. The rule is not expected to result in a net cost to any affected entity. Thus, adverse impacts are not anticipated.

After considering the economic impacts of today's rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for the proposed and final rules with “federal mandates” that may result in expenditures by state, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year.

Before promulgating a rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted.

Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

The Agency's analysis of compliance with the Unfunded Mandates Reform Act (UMRA) of 1995 found that today's rule imposes no enforceable duty on any state, local or tribal government or the private sector. This rule contains no federal mandates (under the regulatory provisions of Title II of the UMRA) for state, local, or tribal governments or the private sector. In addition, EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. The rule merely streamlines reporting requirements for an existing program. Therefore, we have determined that today's rule is not subject to the requirements of sections 202 and 205 of UMRA.

Executive Order 13132, entitled “Federalism” 64 FR 43255 (August 10, 1999), requires EPA to develop an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This rule does not have federalism implications. It will 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.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” 65 FR 67249 (November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” 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 does not have tribal implications. It 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.

“Protection of Children From Environmental Health Risks and Safety Risks,” 62 FR 19885 (April 23, 1997), applies to any rule that EPA determines (1) “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children and explain why the planned regulation is preferable to other potential effective and reasonably feasible alternatives considered by the Agency. This rule is not subject to Executive Order 13045 because it is not an economically significant rule as defined by Executive Order 12866.

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.

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) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g. , materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This rule does not establish technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.

Under Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations”, EPA has undertaken to incorporate environmental justice into its policies and programs. EPA is committed to addressing environmental justice concerns, and is assuming a leadership role in environmental justice initiatives to enhance environmental quality for all residents of the United States. The Agency's goals are to ensure that no segment of the population, regardless of race, color, national origin, or income, bears disproportionately high and adverse human health and environmental effects as a result of EPA's policies, programs, and activities.

EPA has considered the impacts of this rule on low-income populations and minority populations and concluded that it will not cause any adverse effects to these populations. As stated above, the Agency has determined that the risk of significant data loss is very low. The data elements being removed or streamlined either have a low incidence of reporting, have other data source readily available or do not appear to be used to any significant degree by the public.

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). This rule will be effective September 12, 2005.

The Interstate Commerce Commission Termination Act of 1995 (ICCTA) (Pub. L. 104-88, 109 Stat. 803) provides that “[t]he Secretary may issue regulations, including regulations protecting individual shippers, in order to carry out this part with respect to the transportation of household goods by motor carriers subject to jurisdiction under subchapter 1 of chapter 135. The regulations and paperwork required of motor carriers providing transportation of household goods shall be minimized to the maximum extent feasible consistent with the protection of individual shippers” (49 U.S.C. 14104(a)(1)). This final rule establishes regulations governing the transportation of household goods in interstate and foreign commerce and, as such, is within the authority conferred by the ICCTA.

In the Motor Carrier Safety Improvement Act of 1999 (Public Law 106-159, December 9, 1999, 113 Stat. 1749), which established FMCSA as a separate agency within the U.S. Department of Transportation (DOT), Congress authorized the agency to regulate motor carriers transporting household goods for individual shippers. Our regulations setting forth Federal requirements for movers that provide interstate transportation of household goods are found in 49 CFR part 375.

In May 1998, the Federal Highway Administration published a notice of proposed rulemaking (NPRM) requesting comments on its proposal to update the household goods regulations (63 FR 27126, May 15, 1998). The Federal Highway Administration is the predecessor agency to FMCSA within DOT.

The public submitted more than 50 comments to the NPRM. FMCSA subsequently modified the substance of the proposal in light of concerns raised by some of the commenters, and published an interim final rule in June 2003 (68 FR 35064, June 11, 2003). We published an interim final rule rather than a final rule to complete procedures for complying with information collection requirements.

In order to publish the rule text in the October 1, 2003, edition of the Code of Federal Regulations (CFR), we established the interim final rule's effective date as September 9, 2003. However, compliance was not required until March 1, 2004. On August 25, 2003, we received two petitions for reconsideration of the interim final rule. The petitioners were (1) the American Moving and Storage Association (AMSA) and (2) United Van Lines, LLC and Mayflower Transit, LLC (UniGroup). On the same date, AMSA submitted a separate Petition for Stay of Effective Date.

On September 30, 2003, FMCSA delayed the compliance date for the rule indefinitely in order to consider fully the petitioners' concerns (68 FR 56208). In separate letters to the petitioners dated December 23, 2003, we conveyed our decision to make some of the requested changes through technical amendments to the interim final rule and to further consider others that are substantive in nature in a future rulemaking proceeding.

On March 5, 2004, FMCSA published technical amendments to the interim final rule (69 FR 10570). Some of the amendments provided uniformity between the rule text and the appendix—the consumer pamphlet Your Rights and Responsibilities When You Move —while others clarified certain provisions, reflected current industry practice, or corrected typographical errors. In addition, certain technical amendments revised language that was contrary to the statutory intent of the ICCTA, as codified at 49 U.S.C. 14104 and 14708.

The March 5, 2004, notice of technical amendments stated our intent to consider certain substantive amendments requested by the petitioners in a future rulemaking. As these substantive amendments involve changes to prescribed operational practices of movers, and in some cases have a direct impact on consumers, the public should be given an opportunity to comment.

On March 16, 2004, we received from AMSA a Petition for Reconsideration and Stay of the Interim Final Rule and Technical Amendments Compliance Date. In response to the petitioner's concerns, on April 2, 2004, we published clarifying technical amendments to the interim final rule, chiefly to its appendix, and established a new compliance date of May 5, 2004 (69 FR 17313, Apr. 2, 2004). However, we believe that certain amendments sought in the petition are not necessary, while others are substantive in nature and will be considered along with other potential substantive amendments in a future rulemaking proceeding. Therefore, the petition was granted in part and denied in part.

In May 2004, attorneys for both Atlas World Group, Inc. (Ms. Marian Weilert Sauvey) and Wheaton Van Lines, Inc. (Mr. James P. Reichert) contacted us concerning an incorrect statutory citation in four sections of Appendix A to part 375. Mr. Reichert also brought to our attention certain language in subpart E of Appendix A that is not fully consistent with 49 CFR 375.501(h) and 375.505(e), as amended on March 5, 2004. To correct these problems and make a few minor editorial revisions to the rule appendix, we published correcting amendments on August 5, 2004 (69 FR 47386).

The amended interim final rule is intended to (1) increase the public's understanding of the regulations with which movers must comply, and (2) help individual shippers and the moving industry understand the roles and responsibilities of movers, brokers, and shippers, to prevent moving disputes. Individual shippers—many of whom are either relocating for business reasons or have retired—may use for-hire truck transportation services infrequently. These consumers may be poorly informed about the regulations movers must comply with and thus have little understanding of how moving companies operate. The consumer pamphlet Your Rights and Responsibilities When You Move —Appendix A to part 375—is intended to help individual shippers understand the regulations so that they can make informed decisions in selecting a mover and planning a satisfactory move. Section 375.213 requires movers to furnish the information in the consumer pamphlet to prospective customers. The consumer information is posted on FMCSA's Web site at http://www.fmcsa.dot.gov/ , where it can be downloaded and printed.

In addition to the petitions described above, FMCSA received public comments to the interim final rule and subsequent amendments from 19 commenters. Commenting were 12 moving companies—Mayflower Transit, LLC (Mayflower), United Van Lines, LLC, and Mayflower Transit, LLC (UniGroup), Paul Arpin Van Lines (Arpin), Affiliated Movers of Oklahoma City, Inc. (Affiliated Movers), Capitol North American (Capitol), Hawkeye North American Moving and Storage (Hawkeye), Republic Van Lines of San Diego (Republic), Andy's Transfer and Storage (Andy's), Cor-O-Van Moving and Storage (Cor-O-Van), Mother Lode Van and Storage, Inc. (Mother Lode), and Atlas World Group, Inc. and Wheaton Van Lines, Inc. (through attorneys Marian Weilert Sauvey and James P. Reichert, respectively); the Georgia Department of Motor Vehicle Safety; five individuals—Staci Haag, Angie A. Chen, Kay F. Edge, Tyrone Kelly, and Tim Walker for MovingScam.com; and the American Moving and Storage Association (AMSA), which submitted one of three comments through counsel (Venable LLP). The comments are discussed below, together with FMCSA's responses on the issues addressed.

The Georgia Department of Motor Vehicle Safety, while expressing support for the interim final rule, emphasized that FMCSA should devote resources to enforcing the household goods regulations. This commenter observed: “No amount of regulatory change will make any difference unless the FMCSA will have the personnel available to deal with consumer complaints.”

FMCSA Response : Recognizing the limited resources available for FMCSA's household goods program, coupled with the increasing volume of consumer complaints against moving companies, Congress increased our program funding for fiscal year 2004 and authorized seven new staff positions for household goods complaint investigation and enforcement activities. We are using these resources to expand our household goods enforcement program initiatives and activities. Our focus is on more accurately defining and analyzing the various problems related to household goods transportation, implementing improved countermeasures, and carrying out a more aggressive enforcement and compliance policy.

Ten commenters—AMSA, UniGroup, Mother Lode, Car-O-Van, Andy's, Republic, Hawkeye, Affiliated Movers, Arpin, and North American—requested a further delay of the compliance date beyond the extension to May 5, 2004, granted in FMCSA's April 2, 2004, decision (69 FR 17313). These commenters emphasized the difficulties of implementing the new requirements at the onset of the peak moving season (May 15 through September 15). They argued that moving companies would not have time, while coping with peak-season demands, to train their employees in the proper application of the amended regulations. Several commenters added that the summer 2004 moving season was expected to be one of the busiest in many years.

Of this group, six (Mother Lode, Cor-O-Van, Andy's, Republic, Hawkeye, and Affiliated Movers) noted that as small businesses they would be particularly hard-pressed to meet the May 5, 2004, compliance date. Three others—AMSA, UniGroup, and Arpin—cited the change to the regulation governing payment for additional services (discussed below) as especially likely to cause problems if compliance with the new rules were not postponed.

In a letter of April 29, 2004, to FMCSA Administrator Annette M. Sandberg, AMSA predicted that, without a further extension of the compliance date, moving companies' inability to adequately train employees during the busy summer moving season would create service disruptions. AMSA representatives had discussed these concerns during an April 26, 2004, meeting with FMCSA staff, explaining that they expected confusion about the new rules to lead to disputes with customers (individual shippers). A record of the April 26, 2004, meeting is in the docket, along with a copy of AMSA's April 29, 2004, letter and copies of all other correspondence referenced in this document.

Two individuals (Movingscam.com and Tyrone Kelley) stated there was no need for a further extension of the compliance date. Mr. Kelley asserted that “willful, arrogant defiance of DOT/FMCSA authority does not constitute grounds for an extension, especially since the sole beneficiaries of the extension would be the defiant ones.”

FMCSA Response : In her May 3, 2004, response to AMSA's April 29, 2004, correspondence, FMCSA Administrator Sandberg stated the agency would not further extend the May 5, 2004, compliance date. Ms. Sandberg noted, however, that we were not unsympathetic to the potential for service interruptions resulting from requiring full compliance with the revised regulations on May 5, 2004, and that FMCSA had worked to avoid this situation since receiving the first industry petitions in August 2003. In her letter, Ms. Sandberg indicated that to address AMSA's concerns and assist the moving industry in complying with the new rule, she was establishing the following FMCSA enforcement policy:

1. For all household goods shipments contracted before May 5, 2004, the new regulations would not be enforced. All shipments for which contracts were signed on or after May 5, 2004, would be subject to the new requirements.

2. FMCSA would delay enforcement of regulatory provisions requiring changes to forms (such as bills of lading) until July 1, 2004. This provided the industry an opportunity to produce new forms and train employees in their use.

3. The industry was required to distribute the revised consumer pamphlet Your Rights and Responsibilities When You Move beginning on May 5, 2004.

4. Compliance with the shipper notification requirement for an arbitration program was required by May 5, 2004.

5. Compliance with all other provisions, including the collection of transportation charges and charges for additional services, was required beginning on May 5, 2004.

This household goods enforcement policy is posted under the “What Happens When You Move?” link on the FMCSA Web site. To view the policy, go to http://www.fmcsa.dot.gov/factsfigs/hhg/enforcement_policy.htm.

In a letter to FMCSA Administrator Sandberg dated May 26, 2004, AMSA expressed disappointment that we had not delayed the May 5, 2004, compliance date. The Association added, however, that its members would “do their best to comply with the new regulations” during the summer 2004 moving season and “work with FMCSA to ensure that relocating consumers experience quality moves pursuant to the requirements of FMCSA.”

As noted in the Background section above, attorneys for both Atlas World Group, Inc. and Wheaton Van Lines, Inc. called to our attention an incorrect statutory citation in four sections of Appendix A to part 375, the consumer pamphlet Your Rights and Responsibilities When You Move . The attorneys noted that the provision under which a person may seek judicial redress for alleged loss of or damage to household goods by a carrier is at 49 U.S.C. 14706, not 49 U.S.C. 14704 as cited in the pamphlet.

FMCSA Response: We corrected this error in “Transportation of Household Goods; Consumer Protection Regulations; Corrections” (69 FR 47386, Aug. 5, 2004).

Several commenters—Arpin, UniGroup, and AMSA (through Venable LLP)—took issue with the requirement under 49 CFR 375.403(a)(8) that the mover defer billing for additional services requested by the consumer after the shipment is in transit. These commenters believe this provision is unfair to the mover.

AMSA stated, “As discussed in the AMSA petition, the IFR [interim final rule] will require that carrier charges for any additional service requested by a shipper or necessary to service properly a shipment cannot be collected at delivery.” The Association observed: “The consensus of the moving industry is that this departure from the current requirement will have at least two unfavorable consequences. It will force movers to decline to perform additional services and it will require shippers to attempt to make other arrangements to meet all of their moving requirements. Neither consequence is acceptable and the FMCSA regulations should not be the catalyst for disruptive situations of this nature.” In its previously mentioned letter of May 26, 2004, AMSA noted that FMCSA had stated its intention to address this issue in notice-and-comment rulemaking. It urged the agency to publish this rulemaking as soon as possible.

UniGroup asserted the “IFR strips from carriers their most effective collection tool, i.e., a possessory lien.” It added, “If movers cannot collect at delivery for requested or needed additional services, it would be to the shipper's advantage, when an estimate is being presented, not to request a service, but request it later or not inform a mover of possible problems that could arise.”

Ms. Angie Chen commended FMCSA for closing the additional services “loophole.” Ms. Chen wrote, “I am pleased that the interim final rules make it clear that a moving company must relinquish the goods upon payment of no more than 100% for binding estimates and 110% for non-binding estimates, with no exceptions, and that the moving company must defer collection of any legitimate additional charges over that threshold for a period of 30 days.” (Emphasis in original) This commenter included extensive materials related to the legislative and regulatory history on this issue. She asserted these materials support her position that the additional services loophole should not be reopened.

Mayflower Transit specifically addressed Ms. Chen's letter, arguing that in light of its timing with respect to a lawsuit Ms. Chen had filed against Mayflower, her submission “should not be considered in this matter.”

Ms. Kay F. Edge commented that some movers make a practice of holding in hostage a shipper's goods (known colloquially as “hostage freight”) while demanding payment for additional services allegedly requested by the shipper. Regarding AMSA's request for reconsideration and stay of enforcement of the “additional services” provision at § 375.403(a)(8), Ms. Edge contended: “The problem with AMSA's view is that it considers ‘services requested by the shipper’ to include those services the mover has unilaterally decided are necessary to get the goods off the truck and into the destination residence (such as shuttles, long carries, and the catch-all ‘extra labor’). * * * Thus, according to AMSA's view of ‘services requested by the shipper,’ a shipper is not free to decline these additional services—even if the extra amount makes the final charges exceed 100-110% of the original estimate.”

FMCSA Response: We believe the issue of “additional services” charges deserves further consideration through additional public notice and comment. Accordingly, we plan to consider this issue fully in a more focused rulemaking proceeding in the future.

As noted in the Background section, Mr. James P. Reichert, General Counsel for Wheaton Van Lines, Inc., brought to our attention certain language in subpart E of Appendix A that was not fully consistent with 49 CFR 375.501(h) and 375.505(e), as amended on March 5, 2004. The amended regulations make clear that household goods carriers have the option of placing the Surface Transportation Board's required released rates valuation statement, and any charges for optional valuation coverage, on either the order for service or the bill of lading. In the appendix (consumer pamphlet) of the interim final rule, however, subparagraph (10) of the section Must My Mover Write Up an Order for Service? and subparagraph (12) of Must My Mover Write Up a Bill of Lading? implied that the carrier must include the released rates valuation statement and any charges for valuation coverage on the order for service as well as on the bill of lading.

FMCSA Response: In the corrections notice published on August 5, 2004 (69 FR 47386), we revised subparagraph (10) of Must My Mover Write Up an Order for Service? by adding to the first sentence an introductory clause clarifying that the order for service must include the released rates valuation statement and any valuation coverage charges only if the mover has not provided them on the bill of lading. Conversely, a new introductory clause in subparagraph (12) of Must My Mover Write Up a Bill of Lading? makes it clear that the bill of lading must include the released rates valuation statement and any valuation coverage charges only if these were not provided in the order for service. These corrections ensure that the information provided to consumers is consistent with amended §§ 375.501(h) and 375.505(e).

FMCSA has determined that this action is a significant regulatory action within the meaning of Executive Order 12866 and the U.S. Department of Transportation regulatory policies and procedures (44 FR 11034, Feb. 26, 1979) because there is substantial public interest in the interstate transportation of household goods and related consumer protection regulations. FMCSA estimates that the first-year discounted costs to the industry of this rulemaking equal $14.6 million, while total discounted costs are estimated at $42.8 million over the 10-year analysis period. As such, the costs of this final rule do not exceed the $100 million annual threshold as defined in Executive Order 12866.

FMCSA's full Regulatory Impact Analysis explaining in detail how we estimated cost impacts of the final rule is in the docket. The Regulatory Impact Analysis is summarized below.

This final rule adopts the interim final regulations published in the Federal Register on June 11, 2003, governing the interstate transportation of household goods (68 FR 35064) and subsequent technical amendments published on March 5, 2004 (69 FR 10570), April 2, 2004 (69 FR 17313), and August 5, 2004 (69 FR 47386). These new regulations specify how motor carriers transporting household goods by commercial motor vehicle in interstate commerce must assist their individual customers who ship household goods. They revise, clarify, and augment the existing regulations governing matters such as when a mover is required to have an arbitration program, how notification of additional services proposed by the mover must be made, presentation of freight bills, collection of charges, and liability disclosure requirements. In addition, Appendix A to part 375—the consumer pamphlet Your Rights and Responsibilities When You Move —has been extensively revised. These changes to the appendix ensure uniformity with the rule text and increase the accuracy and clarity of the information provided to individual shippers.

FMCSA estimates these regulatory changes will produce five primary cost impacts on household goods carriers, as follows: (1) Costs of training certain employees on the proper application of the regulatory changes; (2) costs to revise carrier marketing materials, forms, and bills of lading, including technical writing and printing costs associated with incorporating in marketing materials the consumer information in the Your Rights and Responsibilities When You Move pamphlet (Appendix A to part 375); (3) costs to update online documentation and/or redesign carrier Web pages to incorporate new or revised information about the regulatory requirements; (4) additional paperwork costs associated with the new regulations; and (5) costs associated with deferred collection of “additional services” payments, which the new regulations prohibit carriers from collecting at delivery. FMCSA's estimates of the costs in these five impact areas are summarized below.

The 1997 Economic Census  1 indicates there are currently 8,279 motor carriers of “Used Household and Office Goods Moving” (NAICS Code 484210). These motor carriers employ a total of 121,550 workers (or almost 15 employees per firm). Since the Economic Census makes no distinction between intrastate and interstate household goods movers, we adjusted these totals to include only those household goods carriers operating in interstate commerce. According to our Licensing and Insurance (L&I) database of active interstate, for-hire carriers, there are currently 4,000 active motor carriers engaged in the movement of household goods in interstate commerce. The ratio of carriers identified in the L&I database to the number identified in the Economic Census (8,279) is 48.3 percent (or 4,000 divided by 8,279). Multiplying 48.3 percent by the 121,550 employees of household goods firms identified in the Economic Census, we estimated the 4,000 household goods carriers currently operating in interstate commerce employ 58,700 workers.

For purposes of this analysis, we assumed that, on average, approximately 50 percent of each employer's workforce will be trained in the new regulations (backroom employees would not require training). Therefore, of the estimated 58,700 workers employed by interstate household goods carriers, approximately 29,350 (or 50 percent) will receive new training as a result of these regulations. Based on information from FMCSA Household Goods Program staff, we estimated each of the 29,350 household goods employees will require, on average, four hours of new training.

At an April 26, 2004, meeting with FMCSA staff, AMSA representatives noted the need to “train agents, sales personnel and drivers.” (See FMCSA's Record of Meeting in the docket.) In a May 26, 2004, letter to FMCSA Administrator Annette M. Sandberg, AMSA reiterated that “thousands of sales personnel, drivers and management personnel” would need training in the new regulations. This information helped us to estimate the per-hour cost of training, using hourly wage information from the publication Occupational and Employment Wages (May 2003) produced by the U.S. Department of Labor, Bureau of Labor Statistics (BLS). The median hourly wage estimates used in our analysis are shown in Table 1.

On the assumption that sales, driver, and management personnel will be trained in equal numbers, we calculated a simple average of the hourly wage rates shown in the table. This yielded an average hourly direct wage rate of $21.29. The addition of an estimated 31 percent to cover the cost of fringe benefits (a weighted average of the fringe benefits for private and for-hire carriers, based on data from the American Trucking Associations and BLS) brings total compensation to $27.89 per hour. This average hourly wage rate represents the “opportunity cost” to household goods movers. The opportunity cost constitutes the overall losses business sustain by pulling workers away from economically productive tasks to train them in the application of the new rules.

To the opportunity cost we added an estimate of the direct costs of training. Based on data from truck driver training schools, we estimated a direct cost of $25 per hour. This yielded an hourly training cost of $52.89. We multiplied the 29,350 employees requiring training by the $52.89 hourly cost to derive an estimated $1.55 million in costs for each hour of training for all affected employees. Multiplying this result by four (or the average number of training hours required per employee) yields a total first-year cost of training equal to $6.2 million (undiscounted). Using a 1/2 -year discounting method and a seven-percent discount rate as recommended by the Office of Management and Budget (OMB) in its guidelines for regulatory analyses (OMB Circular A-4)  2 , first-year discounted costs of training equal $6.0 million.

Based on information AMSA provided both during its April 26, 2004, meeting with FMCSA and in its April 29, 2004, letter to Administrator Sandberg, we assumed this training cost will be a one-time cost to employers. Any future training would be at the discretion of the employer and not a direct result of this regulation.

It is our understanding that many household goods carriers, particularly the larger moving companies, develop their own marketing materials, forms, and/or bills of lading. Forms and bills of lading must be consistent with the new regulatory requirements, while FMCSA also requires that carrier marketing materials incorporate the information in the Your Rights and Responsibilities When You Move consumer pamphlet. Therefore, carriers will incur costs in updating and reprinting these forms and materials. (Carriers without proprietary marketing materials may download and print the consumer pamphlet from FMCSA's Web site at http://www.fmcsa.dot.gov/. These carriers will incur minimal costs in providing customers with the revised pamphlet.) We estimated an average cost of $5.00 to revise and reprint each packet of materials (containing the marketing pamphlet(s), forms, and/or bill of lading); this includes costs for design, layout, and review, plus additional charges for printing the cover and for specifications such as high gloss. Using estimates from the FMCSA information collection approved by OMB for the interim final rule (see the Paperwork Reduction Act section below), we assumed the population of 4,000 interstate household goods carriers conducts 600,000 interstate moves annually. Multiplying the estimated $5.00 printing cost per marketing item by 600,000 yields first-year printing costs of $3.0 million (undiscounted). Using a 1/2 -year discounting method and a 7 percent discount rate, we calculated first-year discounted costs of reprinted marketing materials as $2.9 million.

Many household goods carriers may use in-house technical writers to convert FMCSA regulations to layperson's language. Using wage information in the BLS May 2003 Occupational and Employment Wages report, we estimated the fully loaded median wage for technical writers (including fringe benefits) at $32.49 per hour. Assuming each technical writer requires 8 hours to rewrite the new rules, we derived a total technical writing cost of $260 per carrier. Multiplied by the population of 4,000 interstate household goods carriers, this yields total first-year costs of $1.04 million (undiscounted). Using a 1/2 -year discounting method and a 7 percent discount rate, we calculated first-year discounted costs of rewriting marketing materials as $1.0 million.

In the aggregate, first-year discounted costs to motor carriers to rewrite and print marketing materials equal $3.9 million (after rounding). Again, we assumed this to be a one-time cost.

An unpublished research study by the Volpe Center for FMCSA in calendar year 2000 indicated that 70 percent of existing motor carriers had direct access to the Internet and used that access for business purposes. 3 On the assumption that Web site usage for commercial purposes is likely approaching 100 percent, we believe the 4,000 interstate household goods carriers probably maintain Web sites for commercial purposes that contain information of interest to individual shippers.

To estimate the costs of updating household goods carriers' Web site content to reflect the new rules, we used the median wage for a computer support specialist (a category including Web site designer) of $18.96 per hour (from the BLS May 2003 Occupational and Employment Wages report). Applying a fringe benefits factor of 31 percent, we derived a fully loaded rate for a Web site designer of $24.84 per hour. On the assumption that Web site design work is performed by third-party contractors, we applied a factor of 100 percent to the fully loaded direct wage rate to account for third-party profit, overhead, and other administrative expenses associated with standard contractor fees. This yielded an hourly wage rate of $49.68.

We assumed that in-house technical writing costs (already incorporated in section 2 of this summary, Costs To Revise and Reprint Forms, Bills of Lading, and Marketing Materials ) include costs for rewriting any documents and forms the carrier publishes online. Consequently, in estimating the present costs we focused strictly on information upload and Web site redesign. Based on discussions with FMCSA information systems staff, we estimated each site designer requires about 2 hours to update a carrier's Web site with the new information. Therefore, the total cost per carrier to update Web site information is estimated at $99.36 (or $49.68 per hour times 2 hours). Multiplying this per-firm cost by the 4,000 interstate household goods carriers yields a total first-year cost of $397,440 (undiscounted). Using a 1/2 -year discounting method and a 7 percent discount rate, we calculated first-year discounted costs for Web updating and redesign as equal to $384,000. As with technical writing and printing costs, we assumed this is a one-time cost.

The paperwork burden associated with this rule entails a permanent change in recordkeeping practices of household goods carrier personnel for the foreseeable future. Thus, unlike the costs for training personnel, revising and reprinting marketing materials, and redesigning carrier Web sites, this paperwork burden imposes recurring costs on the industry. The paperwork burden estimates provided by FMCSA to OMB in 2003 as part of the Supporting Statement to the June 11, 2003, interim final rule (see the Paperwork Reduction Act section below) estimated the new burden hours at 1,232,000 hours annually, with an accompanying annual cost of $2.61 million (undiscounted) to the 4,000 motor carriers engaged in interstate household goods movement. This total cost is primarily from the new paperwork burden associated with motor carriers' management of arbitration programs and non-binding estimates. Additionally, paperwork costs under each category are broken out by capital costs and operational/maintenance costs. The source material for estimating the paperwork burden hours and cost estimates was obtained from national averages developed by the Association of Records Managers and Administrators (ARMA). 4 Given the detail with which the paperwork-related costs were developed, FMCSA analysts adopted these cost figures for its Regulatory Impact Analysis.

First-year costs associated with this requirement equal $2.5 million (using a 1/2 -year discounting method and a 7 percent discount rate). Recurring costs associated with paperwork burden in years 2 through 10 of the analysis period total $16.4 million (discounted using a 7 percent discount rate). When later-year, recurring paperwork-related costs ($16.4 million) are added to first-year costs ($2.5 million), the result is 10-year discounted costs of $19.0 million (after rounding).

Under 49 CFR 375.403(a)(7) and (a)(8) and 375.405(a)(9) and (a)(10), a mover must wait 30 days after delivery to collect fees for additional services required to complete the move or provided at the shipper's request, and not included in the estimate (whether binding or non-binding). These are termed “additional services” charges. FMCSA believes that additional services charges would seldom exceed 20 percent of the estimated value of the move, as the shipper and carrier typically discuss such services before the carrier provides the estimate. Multiplying the average cost of a household goods move in 2003 ($3,900, based on a range of $3,800 to $4,000 as reported by AMSA), we estimated average “additional services” fees of $780 per binding estimate. If the carrier provided a non-binding estimate, however, the additional services charges would equal only 10 percent of the shipment value (or $390 for the average shipment) since the current regulations permit carriers to collect 110 percent of a non-binding estimate at delivery. Based on figures FMCSA used to estimate paperwork burden costs for the interim final rule, we assumed household goods carriers provide binding estimates 60 percent of the time, with the remaining 40 percent of shipments moving under non-binding estimates. Therefore, the average value of additional services for which carriers must defer billing is estimated at $624, or ($780 × 60%) + ($390 × 40%).

For this analysis, we assumed that the shipper contests additional services charges 5 percent of the time, or in 30,000 of the 600,000 annual interstate household goods moves. We believe this assumption is reasonable, given that the amended “additional services” provision is aimed at the relatively small segment (20 percent) of annual interstate household goods moves that are transacted directly between the mover and shipper, rather than at the remaining 80 percent contracted through an employer (governmental or private sector) or other commercial entity. Therefore, the total estimated value of the portion of “additional services” charges contested by the shipper is equal to $18.7 million (30,000 shipments × $624). An AMSA marketing survey reported that, for large household goods carriers, a contested charge eventually had to be written off as bad debt in 10 percent of cases. This means the average annual amount of unrecovered charges for large carriers is equal to $1.87 million ($18.7 million × 10 percent). Using a 1/2 -year discounting method and a 7 percent discount rate, we calculated first-year costs of this provision as equal to $1.81 million. These costs are assumed to recur throughout the 10-year analysis period, resulting in a total discounted cost of $13.6 million.

Total first-year, discounted costs associated with this final rule equal $14.6 million (the sum of all cost figures for each compliance cost item). Total discounted costs associated with this final rule over the 10-year analysis period equal $42.8 million.

The agency was unable to quantify the benefits of this rule. While we identified categories of benefits, none of these categories is amenable to quantification. For example, we expect individual shippers with loss or damage claims to expend less time and effort in paperwork associated with recovering their losses, because the clear instructions in household goods carriers' revised forms and informational materials will direct them to the appropriate venue and forms. However, FMCSA does not have access to information regarding how much time consumers currently waste in searching for the correct venue and forms. What can be said with certainty is that putting more information in the hands of consumers cannot increase their out-of-pocket costs. Clearly, all household goods shippers will benefit from knowing the rules and remedies governing household goods transportation and from knowing what levels of service to expect.

In addition to increasing the transparency of the household goods regulations, this final rule ensures consumers are better protected against unfair practices and financial harm. This brings individual shippers increased peace of mind. Although important, “peace of mind” benefits are difficult to quantify in a meaningful and objective manner. Nevertheless, we expect these benefits to be substantial.

This rule is not intended to address motor carrier safety issues, and would not impact the number of truck-related crashes.

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857), requires Federal agencies, as a part of each rulemaking, to consider regulatory alternatives that minimize the impact on small entities while achieving the objectives of the rulemaking. FMCSA has evaluated the effects of this rule on small entities as required by the RFA. We have determined this regulatory action will have a significant economic impact on a substantial number of small entities. Therefore, we have prepared the following Regulatory Flexibility Analysis.

The Regulatory Flexibility Analysis covers the following topics: (1) A description of the reasons why the agency is taking this regulatory action; (2) a succinct statement of the objectives of, and legal basis for, the rule; (3) a description of and, where feasible, an estimate of the number of small entities to which the rule will apply; (4) a description of the reporting, recordkeeping, and other compliance requirements of the rule, including an estimate of the classes of small entities that will be subject to the requirement and the type of professional skills necessary for preparation of the report or record; (5) significant alternatives considered that accomplish the stated objectives and minimize the impact on small entities; and (6) an identification, to the extent practicable, of all relevant Federal rules that may duplicate, overlap, or conflict with the rule.

1. A description of the reasons why the agency is taking this regulatory action.

FMCSA is amending its regulations governing the interstate transportation of household goods so that individuals who ship their personal effects may better understand their rights. Additionally, several regulatory changes were made to improve the balance between the rights of household goods movers and those of individual shippers (consumers). Such amendments will allow the shipper to make more informed decisions in selecting a mover and ensuring the mover conducts the delivery of goods in a satisfactory fashion.

2. A succinct statement of the objectives of, and legal basis for, the rule.

In the Motor Carrier Safety Improvement Act of 1999 (MCSIA) (Public Law 106-159, December 9, 1999, 113 Stat. 1749), Congress authorized FMCSA to regulate household goods carriers engaged in interstate operations for individual shippers. The objectives of today's final rule are to clarify the existing regulations and balance more equitably the rights of the individual shipper with those of the mover. This will enable consumers to make more informed decisions in selecting a mover and ensuring the delivery of goods is conducted in a satisfactory fashion.

3. A description of and, where feasible, an estimate of the number of small entities to which the rule will apply.

This regulation will apply to all motor carriers transporting household goods in interstate commerce. According to FMCSA's Licensing and Information (L&I) database, approximately 4,000 such carriers are currently in operation. Total discounted costs of the final rule are estimated at $42.8 million. Spreading the total discounted costs evenly over the 10-year analysis period yields average annual discounted costs of $5.9 million. Dividing this figure by the 4,000 affected firms yields an average compliance cost of $1,475 per firm. We anticipate the compliance costs of large firms will be higher than this average, while those incurred by small firms will be lower. This is because many of these costs (such as for training and printing) increase with the number of workers the firm employs and/or the number of household goods shipments it handles. Since this cost differential is not expected to be substantial, however, we will use the average compliance cost of $1,475 per firm for the purposes of this Regulatory Flexibility Analysis.

The 1997 Economic Census indicated a total of 8,279 firms operating in the “Used Household and Office Goods Moving” segment, or North American Industrial Classification System (NAICS) Code 484210. Of these, 6,764 firms (or 81 percent) had average annual receipts or revenues of less than $21.5 million. However, the Economic Census makes no distinction between firms operating in interstate and intrastate commerce. The agency's L&I database indicates that approximately 4,000 of these firms currently operate in interstate commerce. Therefore, for the purposes of this analysis, 81 percent of the 4,000 interstate household goods carriers, or 3,246 carriers, are considered small entities affected by this regulation.

According to the 1997 Economic Census, NAICS Code 484210, there are 1,177 firms with average annual revenues of less than $100,000, where average annual pre-tax profits are equal to $3,042 per firm. Average annual compliance costs of $1,475 per firm comprise 48.5 percent of these firms' average annual pre-tax profits, which we consider a significant impact. Additionally, there are 1,764 firms with $100,000 to $249,999 in average annual revenues, where average annual pre-tax profits are equal to $9,018. Average annual compliance costs of $1,475 per firm comprise 16.4 percent of these firms' average annual pre-tax profits, which we consider a significant impact. Firms with average annual revenues above $250,000 per year will not be significantly impacted by this rule, given that the compliance costs are less than 7 percent of these firms' average annual pre-tax profits. Therefore, according to the Economic Census data, a total of 2,941 small firms (or 1,177 + 1,764) will be significantly impacted by implementation of this rule. As noted earlier, the Economic Census makes no distinction between carriers operating in interstate and intrastate commerce. Thus, we adjusted downward the number of small firms calculated above to include only those entities operating in interstate commerce. Since the 4,000 household goods carriers currently operating in interstate commerce constitute 48.3 percent of the total population of 8,279 household goods carriers, we derived this lower figure by calculating 48.3 percent of 2,941 (the number of small firms significantly impacted according to the Economic Census), or 1,421 small interstate household goods carriers that will be significantly impacted by this regulation.

These 1,421 small entities represent a substantial segment of motor carriers currently hauling household goods in interstate commerce: 36 percent of all such carriers (4,000 firms), and 44 percent of small interstate household goods carriers (3,246 firms).

4. A description of the projected reporting, recordkeeping, and other compliance requirements of the proposed rule, including an estimate of the classes of small entities that will be subject to the requirement and the types of professional skills necessary for preparation of the report or record.

This rule will result in additional information collection, retention, and dissemination by household goods carriers. For instance, the regulations will require motor carriers to: (1) Have written agreements with their prime agents stipulating that each advertisement by a motor carrier or its agent include the name or trade name of the originating-service motor carrier and its USDOT number; (2) establish and maintain a procedure for responding to complaints from shippers; (3) develop a concise summary of the carrier's arbitration procedures; and (4) update the consumer pamphlet Your Rights and Responsibilities When You Move to incorporate the new requirements. All these changes (and several others not listed above) will assist consumers in their commercial dealings with interstate household goods carriers, by enabling them to make better informed decisions about contracts with, and services to be ordered, executed, and settled with, the carriers. Approximately 3,246 small entities (interstate household goods carriers) will be subject to this regulation. While knowledge of household goods industry operations is required to explain the new information to consumers, no special skills or training are required to prepare or report on this information.

5. Significant alternatives considered that accomplish the stated objectives and minimize the impact on small entities.

This rulemaking effort is a direct result of the conclusions reached by the Government Accountability Office (GAO) in its 2001 report entitled “Consumer Protection: Federal Actions Are Needed to Improve Oversight of the Household Goods Moving Industry,” No. GAO-01-318. Section 209 of the MCSIA directed that GAO study the effectiveness of DOT's consumer protection activities regarding the interstate household goods moving industry and identify alternative approaches for providing consumer protection. The GAO report recommended FMCSA: (1) Study alternative dispute mechanisms required by the ICCTA; (2) evaluate the adequacy of agency enforcement efforts; (3) determine whether legislative changes are needed to supplement Departmental efforts, including authorizing the States to enforce Federal statutes and regulations and amending the Federal statute limiting carrier liability with respect to interstate shipments of household goods; and (4) conduct public education efforts to promote consumer awareness of self-help measures.

FMCSA has acted on each of the GAO report recommendations. Our assessment of the agency's enforcement sufficiency and effectiveness led, as noted above under Discussion of Public Comments , to the hiring of seven additional enforcement staff in fiscal year 2004. We also implemented revised operating procedures for conducting investigations of household goods movers, and developed a comprehensive Household Goods Compliance and Enforcement Training course for safety investigators.

We have proposed and supported enforcement enhancements through legislative provisions under consideration in both the House and Senate. These include providing State agencies with expanded authority to enforce Federal regulations, increasing enforcement sanctions against rogue moving companies, and other provisions to bolster consumer protection against unscrupulous household goods transportation practices.

We are expanding our public education efforts. These include developing and implementing a comprehensive household goods education and outreach initiative, aimed primarily at individual shippers but also targeting carriers and brokers, consumer advocacy groups, and law enforcement agencies. We also recently completed a major revision and improvement of the FMCSA household goods Web site and the National Consumers Complaint database.

Finally, we are conducting an Alternative Dispute Mechanism Assessment focused on arbitration procedures and programs.

We believe these efforts are reinforcing the consumer protections provided in the regulations adopted as final in today's action. This final rule remains the centerpiece of FMCSA's household goods enforcement program, as it is the most effective way to provide consumers with enhanced protections without unduly impeding market competition within the moving industry.

6. An identification, to the extent practicable, of all relevant Federal rules that may duplicate, overlap, or conflict with the rule.

In the agency's view, no Federal rules would duplicate, overlap, or conflict with this final rule.

This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132, dated August 4, 1999 (64 FR 43255, Aug. 10, 1999). State Attorneys General submitted comments to the May 2, 1998, NPRM, which were considered and addressed in developing the interim final regulation. FMCSA certifies that this rule has federalism implications because it directly impacts the distribution of power and responsibilities among the various levels of government. The rule will not, however, impose significant additional costs or burdens on the States.

The State Attorneys General generally believe they hold authority to enforce laws and regulations governing the interstate transportation of household goods and want FMCSA to acknowledge their role. However, the interstate transportation of household goods involves issues that are national in scope and that have been regulated exclusively by the Federal Government for many years. Regulations implementing the Household Goods Transportation Act of 1980 were promulgated by the ICC in 1981 and subsequently transferred to DOT by the ICC Termination Act of 1995 wherein Congress, in 49 U.S.C. 14104, conferred authority on the Secretary of Transportation to “issue regulations * * * protecting individual shippers.” The Secretary subsequently delegated this authority to FMCSA under 49 CFR 1.73(a)(6). The Carmack Amendment, now codified at 49 U.S.C. 14706, imposes a uniform regime of mover liability for interstate shipments of property designed to eliminate the uncertainty resulting from potentially conflicting State laws. Federal and State courts consistently have held that Carmack preempts a broad range of State consumer protection laws potentially applicable to interstate household goods carriers. As with the former ICC regulation amended by the interim final rule, under current case law this rule preempts all State regulations that purport to regulate interstate household goods transportation subject to Federal jurisdiction.

As AMSA commented, the NPRM's conclusion that this rule is not intended to preempt any State law or regulation was incorrect and likely to promote uncertainty and potential conflicts with States. AMSA stated, “In promulgating these regulations FHWA has expressly preempted application of any State law that would impact the services required to perform interstate transportation of household goods. States, for example, may not regulate the manner in which household goods carriers are required by FHWA to execute orders for service nor may they enforce any State regulation that would affect any other aspect of the interstate moving service performed by household goods carriers regulated by FHWA. See, e.g., Fidelity Federal S. & L. Assn. v. de la Cuesta , 458 U.S. 141, 73 L.Ed.2d 664 (1982) (Even where Congress has not completely displaced State regulation in a specific area, State law is nullified to the extent that it actually conflicts with Federal law. Federal regulations have no less pre-emptive effect than Federal statutes.)

“FHWA authority to issue the proposed regulations is without question. As the NPRM notes, in enacting section 14104 of the Termination Act, the enabling statute in this proceeding, Congress conferred authority on the Secretary to ‘issue regulations protecting individual shippers.’ That is precisely what the Secretary proposes and his action in doing so preempts all State regulations that would purport to regulate the same activities. For these reasons, the cited sentence should be removed or clarified in the final decision in this proceeding. In a similar vein, it is appropriate at this point to address certain comments of NACAA [National Association of Consumer Agency Administrators]. NACAA urges that the proposed regulations should announce that they are supplementary law only and that violations will also subject movers to remedies provided by other Federal, State and local laws, such as State deceptive trade practices laws. (Comments, p. 7). This suggestion reflects a fundamental misconception of the Supremacy Clause, U.S. Constitution, Art. VI, clause 2, and Federal preemption. There is not the slightest suggestion in the law or its precedent that Congress ever intended this explicit and comprehensive regulatory scheme to be supplemental to or superseded by any State law or regulation. Congress could not have been clearer in expressing its intent to occupy the field of interstate household goods transportation regulation. AMSA asserts the NACAA's contention is flatly wrong.”

FMCSA agrees that AMSA has correctly stated current case law on the preemption issue. AMSA is likewise correct that NACAA's suggestion to consider the Federal rules solely as supplementary law reflects a basic misconception of the Supremacy Clause.

As AMSA pointed out, the NPRM's conclusion that this rule is not intended to preempt any State law or regulation was incorrect. Thus, the requirement in section 6(c) to consult “with State and local officials early in the process of developing the proposed regulation,” in accordance with OMB guidance to send letters to State and local officials or their regional or national representative organizations such as the National Association of Governors, did not occur. The agency did, however, receive comments to the docket from State and local officials.

State officials recommended that the rules incorporate additional consumer protection provisions, including: (1) More comprehensive disclosure requirements, particularly with respect to insurance and mover liability; (2) stronger arbitration requirements; (3) uniform rules governing cash-on-delivery service, including requiring movers to relinquish possession of a shipment upon payment of an amount substantially less than the amount of the estimate; (4) requiring movers to offer guaranteed delivery prices if requested by the shipper; (5) restricting billing for additional services not contained in the estimate; (6) establishing a 3-day grace period allowing a shipper to rescind an order for service without penalty; (7) permitting the shipper to deduct penalties for late deliveries from the transportation charges; (8) relaxing limitations on a shipper's right to file loss and damage claims, including claims for loss and damage occurring during storage-in-transit; and (9) prohibiting demands for payment until the entire shipment is delivered.

In response to these comments to the NPRM, the agency amended the proposed regulations in five respects. The interim final rule (and today's final rule): (1) Revises the consumer information pamphlet that movers must give shippers to include guidance regarding the shipper's right to decline arbitration; (2) clarifies mover liability disclosure requirements; (3) requires movers to disclose the names and addresses, when known, of any other motor carriers that will participate in transportation of the shipment; (4) requires movers to make delivery (relinquish the shipment) and defer demanding payment for charges not in the estimate, if the mover could reasonably have determined such charges at the time of pickup; and (5) mandates a 3-day grace period for shippers to cancel orders for service without penalty.

FMCSA submitted State and local officials' comments to the docket and the federalism summary impact statement for the June 11, 2003, interim final rule to the Director of the Office of Management and Budget.

The Unfunded Mandates Reform Act of 1995 (Public Law 104-4; 2 U.S.C. 1532) requires each agency to assess the effects of its regulatory actions on State, local, and tribal governments and the private sector. Any agency promulgating a final rule likely to result in a Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $120 million or more (adjusted annually for inflation) in any one year must prepare a written statement incorporating various assessments, estimates, and descriptions that are delineated in the Act. FMCSA determined that the changes in the June 11, 2003, interim final rule will not have an impact of $120 million or more (as adjusted for inflation) in any one year. No significant additional impact is associated with today's adoption of the interim final regulations as a final rule.

Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), a Federal agency must obtain approval from OMB for each collection of information it conducts, sponsors, or requires through regulations. FMCSA sought approval of the information collection requirements in the “Transportation of Household Goods; Consumer Protection Regulations” interim final rule published on June 11, 2003. On June 19, 2003, OMB assigned control number 2126-0025 to this information collection, and the approval expires on June 30, 2006.

OMB approved 600,000 annual responses, 4,370,037 annual burden hours, and an annual information collection burden of $37,247,000. It also approved FMCSA form number MCSA-2P to be used as part of the information collection process.

The collected information encompasses that which is generated, maintained, retained, disclosed, and provided to, or for, the agency under 49 CFR part 375. It will assist individual household goods shippers in their commercial dealings with interstate household goods carriers, thereby providing a desirable consumer protection service. The collection of information will be used by prospective household goods shippers to make informed decisions about contracts and services to be ordered, executed, and settled within the interstate household goods carrier industry. These information collection items were required by regulations issued by the former ICC. When these items transferred from the ICC to FMCSA, however, no OMB control number was assigned to cover this information collection transfer. It was therefore necessary to calculate the old information collection burden hours for these items approved under the ICC rules versus the new burden generated by the interim final rule and subsequent amendments and adopted in today's final rule.

Assumptions used for calculation of the information collection burden include the following: (1) There are currently approximately 4,000 active household goods carriers, up from the 2,000 estimated in the 1998 NPRM; (2) an estimated 75 new household goods carriers will start up business each year; (3) over the next 3 years, two large van lines will start up business; and (4) the requirement for an arbitration report proposed in the NPRM was not retained in the interim final rule.

The following table summarizes the information collection burden hours by correlating the information collection activities with the sections of part 375 in which they appear. (The total annual burden hours of 4,370,037 represent a 441,090-hour decrease from the 4,811,127 burden hours estimated in the NPRM.) The table shows whether each information collection activity was required under ICC regulations. A detailed analysis of the burden hours can be found in the OMB Supporting Statement for this rule. The Supporting Statement and its attachments are in the docket.

The agency has analyzed this final rule for the purpose of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq. ). We have determined under our environmental procedures Order 5610.1, published March 1, 2004, that this action is categorically excluded (CE) under Appendix 2, paragraph 6.m. of the Order from further environmental documentation. This CE relates to regulations implementing procedures applicable to the “operations,” including specified business practices, of motor carriers engaged in the transportation of household goods. In addition, the agency believes that the action includes no extraordinary circumstances that would have any effect on the quality of the environment. Thus, we believe the action does not require an environmental assessment or an environmental impact statement.

We have also analyzed this action under section 176(c) of the Clean Air Act (CAA), as amended (42 U.S.C. 7401 et seq. ), and implementing regulations promulgated by the Environmental Protection Agency. We have preliminarily determined that approval of this action would be exempt from the CAA's General Conformity requirement since it is merely an adoption of an existing interim final rule as a final rule. See 40 CFR 93.153(c)(2). We believe that it will not result in any emissions increase, nor will it have any potential to result in emissions that are above the general conformity rule's de minimis emission threshold levels. Moreover, we believe it is reasonably foreseeable that the rule will not increase total commercial motor vehicle mileage, change the routing of commercial motor vehicles, change how commercial motor vehicles operate, or change the commercial motor vehicle fleet-mix of motor carriers. This rule merely revises and clarifies certain requirements for interstate household goods carriers to ensure individual shippers of household goods are better protected against unfair practices and financial harm. It also ensures these individual shippers are better informed about the new regulations.

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

Catalog of Federal Domestic Assistance Program Number 20.217, Motor Carrier Safety. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this program.

We have analyzed this action under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. This action is not a significant energy action within the meaning of section 4(b) of the Executive Order because as a procedural action it is not economically significant and will not have a significant adverse effect on the supply, distribution, or use of energy.

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

The interim regulations published June 11, 2003, at 68 FR 35064, part 375 of Title 49 of the Code of Federal Regulations, are adopted as amended without further revision. For the current version of part 375, you may refer to the electronic Code of Federal Regulations on the Internet at http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=6480bc2da610cfedac650114c5e44fef&rgn=div5&view=text&node=49:4.1.2.2.17&idno=49. The technical amendments published on March 5, 2004 (69 FR 10570) clarified certain provisions, sought to provide full uniformity between the rule text and the appendix, and ensured the rule reflects current industry practice. The clarifying technical amendments published on April 2, 2004 (69 FR 17313) chiefly affected the rule appendix. The appendix was further corrected on August 5, 2004 (69 FR 47386).

Federal Motor Vehicle Safety Standard (FMVSS) No. 205, Glazing Materials, specifies performance requirements for glazing installed in motor vehicles. It also specifies the vehicle locations in which the various types of glazing may be installed. On July 25, 2003 (68 FR 43964)(Docket No. NHTSA-2003-15712), NHTSA published a final rule (July 2003 final rule  1 ) updating FMVSS No. 205 by incorporating by reference the 1996 version of the industry standard, American National Standard for Safety Glazing Materials for Glazing Motor Vehicles and Motor Vehicle Equipment Operating on Land Highways, hereinafter referred to as “ANSI/SAE Z26.1-1996”. Prior to the July 2003 final rule, FMVSS No. 205 referenced the 1977 version of ANSI Standard Z26.1 and the 1980 supplement to that standard. By incorporating by reference ANSI/SAE Z26.1-1996, the agency was able to remove most of the existing text in FMVSS No. 205 and thus simplified the glazing standard.

In addition to incorporating ANSI/SAE Z26.1-1996, the final rule addressed several issues not covered by that standard. Among other matters, the final rule limited the size of the shade band located at the top of the windshield and interpreted the meaning of the term “the most difficult part or pattern” for the fracture test in ANSI/SAE Z26.1-1996. The agency received petitions for reconsideration on several aspects of the final rule, including the date on which compliance with the amended requirements would become mandatory, the shade band requirements and the regulatory text the agency used in interpreting “the most difficult part or pattern” term.

In partial response to issues raised in the petitions, NHTSA delayed the compliance date of the July 2003 final rule from January 22, 2004 to September 1, 2006 in final rules published at 68 FR 55544 (September 26, 2003), 69 FR 279 (January 5, 2004), and 69 FR 51188 (August 18, 2004). Today's document responds to the remaining issues raised by the petitions for reconsideration of the July 2003 final rule. The main remaining issues pertain to the requirements for shade bands, and the text used in the standard concerning the fracture test of ANSI/SAE Z26.1-1996. 2

ANSI/SAE Z26.1 requires most passenger car windows to pass a light transmittance test that assures that windows transmit 70 percent of the incident light. However, the standard permits parts of a piece of vehicle glazing that are not needed for driving visibility to be tinted more darkly. The most familiar location for those more darkly tinted areas is the top several inches of the windshield. This area is typically called a “shade band.”  3

Prior to the July 2003 final rule, the size of the shade band was not explicitly defined by Standard No. 205. Even ANSI/SAE Z26.1-1996 did not set boundaries for how much of an area the shade band may occupy. This raised NHTSA's concern that, hypothetically, a shade band with the proper markings could cover most of a driver's field of view through the windshield and still comply with ANSI/SAE Z26.1-1996, even though for proper driving visibility the windshield should be clear ( i.e. , meet the 70 percent light transmittance requirement of FMVSS No. 205). NHTSA sought to set a requirement that established boundaries for shade bands to limit their potential encroachment on the driver's field of view.

The August 1999 NPRM set about accomplishing this by proposing to incorporate into FMVSS No. 205 an industry recommended practice developed by the Society of Automotive Engineers (SAE) that established boundaries for shade bands. This recommended practice, “Class ‘A’ Vehicle Glazing Shade Bands—SAE J100 June 1995,” is based on the eyellipse of a 95th percentile male. The eyellipse is a statistical representation of the 95th percentile male driver's eye positions in a vehicle. The eyellipse of a 95th percentile male is specified because tall drivers are more likely than short drivers to have their line of vision at least partially blocked by a shade band. The lower boundary for the shade band, as seen in side view, is a line tangent to the upper edge of the 95th eyellipse, and inclined 5 degrees up from the horizontal. (This inclined angle is referred to as the “up-angle” of 5 degrees.) The NPRM requested comment on the appropriateness of SAE J100 and on whether there were other, alternative industry standards that the agency should consider (64 FR at 42333).

In comments to the NPRM, Toyota Motor Corporation and the Flat Glass Manufacturers Association of Japan (FGMAJ) suggested harmonizing the shade band requirement with ECE R43 92/22EC (ECE R43). ECE R43 is used in Europe and Japan. It uses an up-angle of 7 degrees to determine the upper limit of the area for driving visibility. It also differs from SAE J100 by relying on the location of the European “R-point” in the seating design to define the boundaries for the shade bands, in contrast to SAE J100's use of the SAE seating reference point (SgRP). (There are further minor differences between SAE J100 and ECE R43. 4 )

Because there were only slight technical differences between SAE J100 and ECE R43, and because the FMVSSs generally use the SgRP to define locations in vehicles rather than the R-point, NHTSA decided to adopt generally the SAE J100 recommended practice. That decision permitted manufacturers that presently manufacture their shade bands in accordance with SAE J100 to continue using the vehicle coordinates defined in SAE J100. However, the adoption included a substitution of the ECE R43 up-angle of 7 degrees to determine the upper limit of the area for driving visibility, instead of the SAE procedure up-angle of 5 degrees.

NHTSA believed that, due to the 7 degree up-angle, the shade band boundary line for most vehicles will likely more closely approximate the ECE R43 line than the line generated using the SAE J100 procedure. Thus, the agency believed that manufacturers would be able to market vehicles with the same AS-1 line in both Europe and the United States.

NHTSA further stated that it had commissioned General Test Laboratories (GTL) to undertake a small study of five windshields to determine, among other matters, the extent to which the shade bands on the vehicles fell within the boundaries specified for shade bands in ECE R43 (68 FR at 43968). One of the windshields had no shade band. Of the remaining four, three met the ECE R43 limit. The windshield that did not meet the limit was that of the Chevrolet Camaro, whose shade band was 20 millimeters (0.8 inches) over the ECE R43 boundary. NHTSA believed that the extent of this hypothetical test failure was slight, and that modifying the shade band location by 25 millimeters (mm)(1 inch) or less represents a reasonable undertaking that: (a) Would not be costly for manufacturers; and (b) could be accomplished within a short lead time.

DaimlerChrysler, General Motors (GM), PPG, Pilkington, and Visteon asked that the agency reconsider its decision to change the visibility up-angle from 5 degrees to 7 degrees. DaimerChrysler, GM and Pilkington believed that commenters were not given an opportunity to comment on the change of the up-angle from 5 to 7 degrees. Petitioners stated that NHTSA had not demonstrated a safety need or safety benefit for the modification. DaimlerChrysler, GM, Pilkington and PPG believed that, although the preamble to the final rule identified international harmonization as NHTSA's primary purpose for the change, NHTSA did not harmonize because it only adopted the 7 degree up-angle portion of ECE R43 in conjunction with the remaining requirements of SAE J100.

Petitioners also said that NHTSA had not performed any study indicating the percentage of vehicles that may not meet the new 7 degree up-angle requirement, and contend that the change to a 7 degree up-angle would place a significant burden on manufacturers. DaimlerChrysler estimated that 25 percent of vehicles currently in production would not comply with the 7 degree up-angle requirement.

Other issues raised by the petitioners pertained to excepted areas of the windshield, the burden of meeting the standard, excluding aftermarket items of glazing, and applying the requirements to side and rear windows. All of these issues are discussed below.

The agency provided notice of and an opportunity to comment on the proposed adoption of limits on the width of shade bands. The NPRM specifically proposed an approach that determined the lower boundary of shade bands by way of measuring an up-angle. Comments were requested on the appropriateness of the proposal and on whether there were other, alternative industry standards that the agency should consider (64 FR at 42333). The 7 degree up-angle was adopted in response to Toyota's and FGMAJ's comments to the NPRM that suggested that the agency consider adopting ECE R43, which has a 7 degree up-angle specification. The incorporation of the 7 degree up-angle was a logical outgrowth of the proposal for a 5 degree up-angle. It was adopted to harmonize that aspect of FMVSS No. 205 with the European standard.

In response to the comments, NHTSA agrees that harmonization was only partly achieved using the 7 degree up-angle. The agency adopted the European shade band standard as it did because ECE R43 specified use of a different coordinate system for determining shade band boundaries than the system generally used in the FMVSS. NHTSA believed that requiring the use of a new coordinate system would burden vehicle manufacturers that now use the SAE coordinate system for design, since new software and design measurements would have to be used.

On reconsideration, the agency has decided to allow manufacturers to choose either the harmonized shade band provisions of ECE 43 or the unmodified windshield shade band provisions of SAE J100. This final rule gives manufacturers the option of meeting either SAE J100 with a 5 degree up-angle (using the vehicle coordinate system commonly used in the U.S.) or the shade band requirements of ECE R43 with a 7 degree up-angle (using the coordinate system used in Europe). Some vehicle platforms are already produced to meet the ECE R43 shade band requirements, so manufacturers of those vehicles choosing the latter option will be able to readily certify to FMVSS No. 205.

DaimlerChrysler stated that the July 2003 final rule did not consider the current version of ECE R43, which defines in annex 18 a “reduced area B” in addition to area B. Reduced area B allows obscurations with a maximum width of 300 millimeters, centered to the longitudinal median plane of the vehicle, between the 7 degree and a 3 degree up-angle.

NHTSA agrees with DaimlerChrysler that the language of the final rule did not include a recent amendment to ECE 43 establishing the excepted area. The provision for the excepted area has been added to the ECE 43 shade band specification in that shade band alternative.

Visteon opposed incorporating SAE J100 regardless of which up-angle is specified because of the effect of the incorporation on the glass replacement aftermarket. Visteon stated that data on the vehicle SgRP or the 95th percentile eyellipse that are needed to verify location of the bottom-most edge of the shade band are owned and/or controlled by the vehicle manufacturers, not the glass manufacturer. Pilkington stated that the vehicle design information is not readily available to the glazing manufacturer other than in the early stages of vehicle development. Pilkington was concerned that when the vehicle goes out of production, even the vehicle manufacturer may lose the information. The petitioner believed that determining which windshields on vehicles out of production need their shade bands raised to meet the new 7 degree up-angle “would be a tedious and time consuming exercise.”

DaimlerChrysler, Pilkington, GM and PPG asked that the agency consider permitting aftermarket replacement glazing (materials replacing glazing installed as original equipment) the option of complying with the requirements of FMVSS No. 205 as they existed prior to the July 2003 rulemaking. Petitioners stated that it would not be feasible to redesign replacement glazing for vehicles manufactured before the effective date of the rule such that the glazing would meet the updated requirements of FMVSS No. 205. GM stated that replacement glazing for vehicles manufactured prior to the effective date of the rule could become scarce, and consequently expensive, if required to meet the new standard.

On reconsideration, we agree with the petitioners that it may not be practical to apply the new FMVSS No. 205 requirements to aftermarket replacement glazing for older vehicles that are not subject to the new requirements of the standard. Therefore, we have decided to permit manufacturers of replacement glazing to meet the requirements of the glazing being replaced. They may meet either the upgraded FMVSS No. 205 or FMVSS No. 205(a), a reinstatement of the version of FMVSS No. 205 as it existed prior to the July 2003 final rule. Note that replacement glazing parts for vehicles required to meet the new FMVSS No. 205 requirements must meet the new FMVSS No. 205, including the shade band requirements at S5.3.

The agency stated in the preamble to the final rule that it believed that shade bands rarely exist on fixed side and rear windows since the majority of side and rear windows are tempered glass and shade bands can only be applied to laminated glazing (by tinting the inner layer). The preamble stated that “the agency has decided to apply the provisions of SAE J100 exclusively to windshield applications.” NHTSA noted that light transmittance requirements for side and rear windows in FMVSS No. 205 and ANSI/SAE Z26.1-1996 will continue to apply to side and rear windows.

Pilkington expressed concern in its petition for reconsideration that shade bands are currently being placed on side and rear windows and on windshields by means other than by tinting the inner layer of laminated glazing. The petitioner stated that eliminating printed shade bands on side or rear windows or windshields would render a large number of current vehicles out of compliance with the standard.

In response to Pilkington, the final rule did not apply the shade band requirements to glazing other than the windshield. S5.3 of the standard applies to “shade band areas for windshields ” (emphasis added). Although FMVSS No. 205 does not specify any SAE J100 shade band requirements for side or rear windows, as noted in the July 2003 final rule, “the light transmittance requirements for side and rear windows contained in FMVSS No. 205 and ANSI/SAE Z26.1-1996 will continue to apply to side and rear windows.” (See 68 FR at 43969.) That is, shade bands on side and rear windows must not impede the ability of the vehicle to meet the light transmittance requirements of the standard at “levels requisite for driving visibility.” Areas on a piece of glazing above or below the “levels requisite for driving visibility” may be shaded as before.

There were compliance burdens associated with the July 2003 final rule that the petitions for reconsideration asked us to address and which this and earlier final rules have addressed. However, this final rule avoids any shade band changes for manufacturers using either the U.S. SAE practice or the European ECE 43 regulation.

Nonetheless, we recognized that manufacturers needed more time than that provided by the July 2003 final rule to test their products for compliance with the new shade band requirements. Accordingly, the August 18, 2004 final rule (69 FR 51188) extended the effective date of the original final rule from January 22, 2004 to September 1, 2006. The September 1, 2006 effective date gave NHTSA more time to respond to the petitions for reconsideration, and, as it was more than 3 years from the issuance of the July 2003 final rule, provided manufacturers more time to test vehicles. 5

This document makes a small adjustment with regard to its application to vehicle manufacturers. A September 29, 2004 letter from Glenn Underwood of AGC Automotive-Americas (AGC) expressed concern that applying the effective date of the final rule to both motor vehicles and to motor vehicle equipment on the same day (September 1, 2006) impedes vehicle manufacturers' abilities to deplete inventory levels, which AGC stated could be at or above 60 days. It stated that its customers (vehicle manufacturers) are concerned that on September 1, 2006, they could be in the position of assembling vehicles that do not comply with the updated requirements of FMVSS No. 205 if they use glazing in inventory that was certified to the previous FMVSS No. 205. AGC asked that the new requirements be “phased in” so that AGC's customers would not have to “replace all parts which do not comply” on built vehicles. 6

To address AGC's concerns without reducing the lead time provided for glazing equipment manufacturers to meet the standard's requirements, we are adjusting the effective date of the final rule to provide vehicle manufacturers 60 days to use the non-conforming glazing in their inventories. (We are also providing the additional 60 days to manufacturers of slide-in campers and pickup covers designed to carry persons while in motion, since they too could have glazing inventories.) Currently, the compliance date for vehicles is September 1, 2006 ( i.e. , vehicles manufactured on or after September 1, 2006 must meet the upgraded standard). This rule extends that motor vehicle compliance date to November 1, 2006. The compliance date of September 1, 2006 is not changed for glazing equipment that is not manufactured as replacement glazing.

Prior to the July 2003 final rule, FMVSS No. 205 incorporated the 1977 version of ANSI/SAE Z26.1 which, among other things, required a fracture test (Test No. 7) of a 12-inch square, flat sample of glazing. In contrast, ANSI/SAE Z26-1-1996 requires the use of a full-size production piece of vehicle window glass, which benefits safety by more accurately assessing the performance of the glazing actually used on a vehicle. Section 5.7.2 of ANSI/SAE Z26.1-1996 also states that the specimens of glazing selected for testing “* * * shall be of the most difficult part or pattern designation within the model number.”  7

The provision for the “most difficult part or pattern” was interpreted by NHTSA in the NPRM as referring to the part of the glazing that provided for “worst case” testing, i.e., the portion of the glazing that NHTSA considered most likely to fail the test. The agency proposed stating in S5.1.2: “NHTSA may test any portion of the glazing when doing the fracture test (Test No. 7) described in section 5.7 of ANS Z26.”

Comments to the NPRM disagreed with the interpretation and persuaded NHTSA that the interpretation of the NPRM was incorrect. The agency decided in the final rule that the correct interpretation was that the “most difficult part or pattern” refers to the worst-case component with respect to fracture performance, not the worst-case component test location on a particular component. (As illustrated by the agency in the final rule preamble, if a manufacturer produced side and rear windows with the same model number and the rear window performed worse in the fracture performance test, then the rear window must pass the fracture performance test.) NHTSA said in the preamble to the final rule that it “has decided to clarify that any piece of glazing subject to the fracture test may be tested, and that the test procedure will be a single fracture origin or break point 25 mm (1 in.) inboard at the edge of the midpoint of the longest edge of the specimen as specified in ANSI/SAE Z26.1-1996.” (Emphasis in text.)

Notwithstanding this statement, the regulatory text of the final rule (S5.2) was not changed from that of S5.1.2 of the NPRM to reflect this revised interpretation.

In petitions for reconsideration, GM, Pilkington, and PPG asked the agency to amend S5.2 to reflect the revised interpretation discussed in the preamble to the final rule. Petitioners also suggest that NHTSA amend S5.2 in accordance with SAE's comments to the NPRM, to state: “NHTSA may conduct the Fracture Test as specified in ANSI/SAE Z26.1-1996 Section 5.7 on any piece of glazing material that is required to comply with Section 5.7.”

Today's final rule corrects S5.2 to make it consistent with the discussion of the preamble of the final rule. The corrected regulatory text states that each of the test specimens described in ANSI/SAE Z26.1-1996 Section 5.7 (fracture test) must meet the fracture test requirements of that section when tested in accordance with the test procedure set forth in that section.

As noted in the preamble to the July 2003 final rule, NHTSA intended to retain a provision in FMVSS No. 205 (S5.1.1.6) that required that multipurpose passenger vehicles (MPVs) must meet the same glazing requirements as those required for trucks (68 FR at 43970). An express provision was needed in the revised FMVSS No. 205, because while ANSI/SAE Z26.1-1996 prohibits the use of deep tinted windows adjacent to the driver in trucks, it does not extend the same prohibition to MPVs. However, notwithstanding the intent of the agency, the regulatory text of the July 2003 final rule excluded the provision from the final rule. We are correcting this oversight by adding a subsection to S5.1 to specify that, except as otherwise specifically provided by the standard, glazing for use in multipurpose passenger vehicles shall conform to the requirements for glazing specified in ANSI/SAE Z26.1-1996 for use in trucks.

The following correcting amendment responds to an October 18, 2004 letter submitted by Lance Tunick of Vehicle Services Consulting, Inc., regarding the use of item 4A rigid plastic glazing and to a May 6, 2005 “petition for technical corrections” from the Alliance of Automobile Manufacturers.

Prior to the July 2003 final rule, FMVSS No. 205 permitted item 4A glazing in all areas in which Item 4 safety glazing may be used, provided, however, that for side windows, the item 4A glazing was only allowed to be used rearward of the “C” pillar. After issuance of the July 2003 final rule, NHTSA discovered that the incorporation of the 1996 version of ANSI/SAE Z26.1 inadvertently permitted item 4A glazing to be used in side windows rearward of the “B” pillar. The agency sought in the September 26, 2003 final rule to correct this oversight by adding an S5.5 to FMVSS No. 205, “to make clear that Item 4A glazing is only permitted for use in side windows rearward of the “C” pillar.” (68 FR 55544.)

Mr. Tunick stated that S5.5 appears to prohibit the use of Item 4A glazing in the rear window of a convertible passenger car top and asked if that was our intent. The answer is no. We did not intend to limit Item 4A to only side windows rearward of the C pillar, to the exclusion of other locations for such glazing that are now permitted under Item 4 in the existing FMVSS No. 205. To clarify the language of the standard, we are amending S5.5 of FMVSS No. 205 along the lines suggested by Mr. Tunick in his letter. The amended S5.5 reads as follows: “S5.5 Item 4A Glazing. Item 4A glazing may be used in all areas in which Item 4 safety glazing may be used, and also for side windows rearward of the “C” pillar. I.e., Item 4A glazing may be used under Item 4A paragraph (b) of ANSI/SAE Z26.1-1996 only in side windows rearward of the ‘C’ pillar.”

In its petition for technical corrections of May 6, 2005, the Alliance of Automobile Manufacturers (the Alliance) also asked that the “longstanding location of the arrow within the ‘AS' marking be restored.” The Alliance explained that prior to the 1996 update to ANSI/SAE Z26.1, the arrow appeared in the second position of the “AS” marking; e.g. , A↓S1  8 or A↑S2. In a typographical error in the 1996 update, the arrow was inadvertently moved to the third position in the marking to read, e.g. , AS↑2. In an interpretation letter of December 1, 2004 to AGC Automotive, NHTSA confirmed that this revised arrow location would be required when the amended FMVSS No. 205 takes effect.

The Alliance stated that the SAE Glazing Committee convened a special meeting on March 8, 2005 to discuss the arrow location issue and to consider remedies. The Glazing Committee clarified that the revised arrow location was unintentional, and a typographical error in ANSI/SAE Z26.1-1996. It was also recognized during the March 8, 2005 meeting that changing silk screens to comply with the erroneous arrow location would be extremely costly and would require “considerable” lead time.

The Alliance stated that although the SAE Glazing Committee has initiated a technical correction to ANSI/SAE Z26.1 to restore the arrow location to the second position of the “AS” marking, it was not certain that SAE will complete its work soon enough to allow NHTSA to simply incorporate it by reference. Accordingly, the Alliance recommended that S3.2(a) and S5.1 of FMVSS No. 205 be revised to restore the arrow to the second slot of the AS marking.

NHTSA agrees that the revised arrow location was a typographical error in ANSI/SAE Z26.1-1996, and that industry should not have to incur unnecessary expenses to comply with the erroneous arrow location. Therefore, in this final rule, at S5.1.3, NHTSA corrects the typographical error in ANSI/SAE Z26.1-1996 by including an exception to ANSI/SAE Z26.1-1996 by reinstating the arrow in the “AS” marking to the second position. NHTSA will not amend S3.2(a), which is the provision in FMVSS No. 205 incorporating by reference ANSI/SAE Z26.1-1996.

Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), provides for making determinations whether a regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and to the requirements of the Executive Order. The Order defines a “significant regulatory action” as one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

This rulemaking document was not reviewed under Executive Order 12866. It is not significant within the meaning of the DOT Regulatory Policies and Procedures. The effect of this rulemaking action is to clarify regulatory requirements of a final rule of July 25, 2003. It will not impose any additional burden on any person. The agency believes that this impact is so minimal as to not warrant the preparation of a full regulatory evaluation.

We have not conducted an evaluation of the impacts of this final rule under the National Environmental Policy Act. This rulemaking action clarifies regulatory requirements in a final rule of July 25, 2003. This rulemaking does not impose any change that would have any environmental impacts. Accordingly, no environmental assessment is required.

Pursuant to the Regulatory Flexibility Act, we have considered the impacts of this rulemaking action will have on small entities (5 U.S.C. Sec. 601 et seq. ). I certify that this rulemaking action will not have a significant economic impact upon a substantial number of small entities within the context of the Regulatory Flexibility Act.

The following is our statement providing the factual basis for the certification (5 U.S.C. Sec. 605(b)). The final rule affects manufacturers of motor vehicles and motor vehicle glazing. According to the size standards of the Small Business Association (at 13 CFR Part 121.601), manufacturers of glazing are considered manufacturers of “Motor Vehicle Parts and Accessories” (SIC Code 3714). The size standard for SIC Code 3714 is 750 employees or fewer. The size standard for manufacturers of “Motor Vehicles and Passenger Car Bodies” (SIC Code 3711) is 1,000 employees or fewer. This final rule will not have any significant economic impact on a substantial number of small businesses in these industries because the rule only clarifies requirements of a final rule of July 25, 2003. Small organizations and governmental jurisdictions that purchase glazing will not be significantly affected because this rulemaking will not cause price increases. Accordingly, we have not prepared a Final Regulatory Flexibility Analysis.

E.O. 13132 requires NHTSA 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.” E.O. 13132 defines the term “Policies that have federalism implications” 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.” Under E.O. 13132, NHTSA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or NHTSA consults with State and local officials early in the process of developing the proposed regulation.

This final rule will 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 E.O. 13132. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually. This action will not result in additional expenditures by state, local or tribal governments or by any members of the private sector. Therefore, the agency has not prepared an economic assessment pursuant to the Unfunded Mandates Reform Act.

Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) (PRA), a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. This final rule does not impose any new collection of information requirements for which a 5 CFR part 1320 clearance must be obtained.

This final rule does not have any retroactive effect. Under 49 U.S.C. 30103(b), whenever a Federal motor vehicle safety standard is in effect, a state or political subdivision may prescribe or continue in effect a standard applicable to the same aspect of performance of a Federal motor vehicle safety standard only if the standard is identical to the Federal standard. However, the United States Government, a state, or political subdivision of a state, may prescribe a standard for a motor vehicle or motor vehicle equipment obtained for its own use that imposes a higher performance requirement than that required by the Federal standard. 49 U.S.C. 30161 sets forth a procedure for judicial review of final rules establishing, amending, or revoking Federal motor vehicle safety standards. A petition for reconsideration or other administrative proceedings are not required before parties file suit in court.

Executive Order 12866 requires each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions:

Comment is solicited on the extent to which this final rule effectively uses plain language principles.

Under the National Technology and Transfer and Advancement Act of 1995 (NTTAA) (Pub. L. 104-113), “all Federal agencies and departments shall use technical standards that are developed or adopted by voluntary consensus standards bodies, using such technical standards as a means to carry out policy objectives or activities determined by the agencies and departments.”

Certain technical standards developed by the American National Standards Institute (ANSI) and Society of Automotive Engineers (SAE) have been considered and incorporated by reference in the final rule published on July 25, 2003, which upgraded the requirements of FMVSS No. 205. This final rule clarifies provisions of the July 25, 2003 final rule.

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

This rule is not subject to E.O. 13045 because it is not “economically significant” as defined under E.O. 12866, and does not concern an environmental, health or safety risk that NHTSA has reason to believe may have a disproportionate effect on children.

On July 12, 1996, the National Highway Traffic Safety Administration (NHTSA) published a final rule that rescinded Federal Motor Vehicle Safety Standard No. 126, Truck-camper loading, and combined its provisions with 49 CFR 575.103, Truck-camper loading (61 FR 36655).

Prior to the July 12, 1996, final rule, 49 CFR 575.103(e) required manufacturers of trucks capable of accommodating a slide-in camper to provide five items of information contained in paragraphs (e)(1) through (5) of that standard. If a manufacturer recommended that the truck not be used for a slide-in camper, the manufacturer was required by 49 CFR 575.103(f) to provide a statement to that effect instead of the information in 49 CFR 575.103(e).

The July 12, 1996, final rule renumbered the then existing 49 CFR 575.103(e) as 49 CFR 575.103(e)(2)(i) and the then existing 49 CFR 575.103(f) as 49 CFR 575.103(e)(2)(ii). However, the cross reference in 49 CFR 575.103(e)(2)(ii) was incorrectly listed as 49 CFR 575.103(e)(2)(i)(E) (the then existing 49 CFR 575.103(e)(5)) instead of all of 49 CFR 575.103(e)(2)(i).

This notice corrects that error.

This correction will not impose or relax any substantive requirements or burdens on manufacturers. Therefore, NHTSA finds for good cause that any notice and opportunity for comment on this correcting amendment is not necessary.

Regulations governing fishing activity in the U.S./Canada Management Area are found at 50 CFR 648.85(a)(3). The U.S./Canada Resource Sharing Understanding implemented by Amendment 13 to the NE Multispecies FMP (April 27, 2004; 69 FR 22906) established hard TACs for GB cod, GB haddock, and GB yellowtail flounder. The hard TACs for GB cod and GB haddock are specific to the Eastern U.S./Canada Area while the hard TAC for GB yellowtail flounder applies to vessel operations in both the Eastern and Western U.S./Canada Areas. The final GB cod TAC allocation for the 2005 fishing year is specified at 260 mt (July 7, 2005; 70 FR 39190). These TACs are monitored using catch information obtained from vessel monitoring system (VMS) catch reports, observer data, and other available information.

Once the Regional Administrator projects that any one of these TACs have been caught, the Regional Administrator is required to close the Eastern U.S./Canada Area to all NE multispecies DAS vessels pursuant to § 648.85(a)(3)(iv)(E). To prevent the fishery from over-harvesting these species, the Regional Administrator may implement regulations intended to slow the rate of harvest of these species once the Regional Administrator projects that 30 percent and/or 60 percent of the TAC allocations for GB cod, GB haddock, or GB yellowtail flounder have been harvested, as specified at § 648.85(a)(3)(iv)(D). These regulations provide the Regional Administrator with the authority to modify gear requirements and modify or close access to the U.S./Canada Management Areas, among other provisions.

Based upon available information, to date, NE multispecies DAS vessels have harvested over 50 percent of the GB cod TAC. At this rate, the GB cod TAC would be harvested well before the end of the 2005 fishing year on April 30, 2006. Based on this information, and the rate at which GB cod is being harvested, this action limits NE multispecies DAS vessels to one trip into the Eastern U.S./Canada Area per month for the remainder of the 2005 fishing year. Vessels that have already declared their intent to fish in the Eastern U.S./Canada Area (VMS Area Codes 2, 5, or 6) through VMS, departed on a trip, and crossed the demarcation line as of 0001 hours on July 12, 2005, may finish their trip. Any trip that began before July 12, 2005, will not count toward the one trip per month limit for the month of July. A trip will be counted toward the month in which the vessel started a trip into the Eastern U.S./Canada Area by declaring into the Eastern U.S./Canada Area through VMS and crossing the VMS demarcation line. This measure is intended to slow the rate of harvest of GB cod, while allowing continued access to GB haddock and GB yellowtail flounder within the Eastern U.S./Canada Area. This would help achieve optimum yield in the fishery during the 2005 fishing year. To allow the fishery to continue at its current harvest rate for GB cod could necessitate closure of the Eastern U.S./Canada Area before the full harvest of the GB haddock and GB yellowtail flounder TACs in place for this area, in order to ensure that the GB cod TAC is not exceeded during the 2005 fishing year.

This action also requires that all NE multispecies DAS vessels must use a haddock separator trawl when fishing in the Eastern U.S./Canada Area. This net is intended to allow vessels to continue to target the available GB haddock without catching substantial amounts of GB cod. Research highlighted in the environmental assessment prepared for Framework Adjustment 40-A to the FMP has shown that this net, if used properly, is capable of substantially reducing the amount of cod caught when compared to haddock. Vessels may continue to fish for GB yellowtail flounder in the Western U.S./Canada using any other gear allowed in the regulations under § 648.80(a) to fully harvest the U.S. portion of the TAC for GB yellowtail flounder. Therefore, this action is intended to prolong opportunities to fully harvest the GB haddock TAC in the Eastern U.S./Canada Area without compromising opportunities to fully harvest the GB yellowtail flounder TAC from the Western U.S./Canada Area.

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

Pursuant to 5 U.S.C. 553(b)(B), the Assistant Administrator finds good cause to waive prior notice and opportunity for public comment for this action as notice and comment would be impracticable and contrary to the public interest. Given the relatively small GB cod TAC for the Eastern U.S./Canada Area during the 2005 fishing year and the very rapid rate at which the GB cod TAC has been harvested to date, it would be impracticable for NMFS to provide for prior notice and opportunity for public comment because this would likely prevent the agency from slowing the rate of GB cod catch within the Eastern U.S./Canada Area before the TAC is fully harvested. To allow vessels to continue fishing on GB cod at the recent catch rate during the period necessary to publish and receive comments on a proposed rule would result in the continued harvest of GB cod, potentially increasing the potential for the groundfish fishery to exceed the GB cod TAC for the Eastern U.S./Canada Area during the 2005 fishing year. Exceeding the GB cod TAC during the 2005 fishing year would require any overages to be deducted from the 2006 GB cod TAC for the Eastern U.S./Canada Area. This would result in decreased revenue for the NE multispecies fishery, increased economic impacts to vessels operating in the Eastern U.S./Canada Area, reduced opportunities to fully harvest the GB haddock and GB yellowtail flounder TACs in the Eastern U.S./Canada Area (i.e., through the increased possibility of premature closure of the Eastern U.S./Canada Area during the 2006 fishing year due to fully harvesting a reduced GB cod TAC in 2006), a reduced chance of achieving optimum yield in the groundfish fishery, and unnecessary delays to the rebuilding of this overfished stock.

For similar reasons, the Assistant Administrator finds good cause, pursuant to 5 U.S.C. 553(d)(3), to waive the entire 30-day delayed effectiveness period for the measure limiting NE multispecies DAS vessels to one trip into the Eastern U.S./Canada Area per month and half of the 30-day delayed effectiveness period for the measure to require all NE multispecies DAS vessels to use a haddock separator trawl in the Eastern U.S./Canada Area. For the reasons specified above, a delay in the effectiveness of the access modification in this rule would prevent the agency from slowing the rate of GB cod catch within the Eastern U.S./Canada Area before the TAC is fully harvested and potentially exceeded during the 2005 fishing year. Any such delay could lead to the impacts to the fishing industry described above. Regulations at § 648.85(a)(3)(iii) require any NE multispecies DAS vessel fishing in the Eastern U.S./Canada Area to use either a haddock separator trawl or a modified flatfish net to facilitate the escapement of cod when targeting haddock or flatfish species, respectively. Because of the need to immediately slow the harvest of GB cod from the Eastern U.S./Canada Area, a full 30-day delayed effectiveness period for the gear restrictions implemented by this action would compromise the effectiveness of this regulatory change. The use of a haddock separator trawl would allow the fishing industry to continue to target GB haddock and help better achieve optimum yield from the resource without compromising efforts that would enable the agency to slow GB cod harvest before the TAC is fully achieved and prevent the TAC from being exceeded. Although most vessels operating in the Eastern U.S./Canada Area already possess and use a haddock separator trawl, not every NE multispecies DAS vessel eligible to fish in this area is likely to possess a haddock separator trawl at this time. Therefore, it is necessary to allow these vessels the opportunity to purchase and install a haddock separator trawl prior to the effective date of this provision. A 15-day delayed effectiveness should provide the industry with sufficient opportunity to modify existing trawl gear to comply with the separator trawl requirement specified in this action, as the materials and expertise needed to modify existing gear are readily available. Finally, the rate of harvest of GB cod in the Eastern U.S./Canada Area is updated weekly on NMFS' Northeast Regional Office website at http://www.nero.noaa.gov . Accordingly, the public is able to obtain information that would provide at least some advanced notice of a potential action to slow the harvest rate or to close the Eastern U.S./Canada Area, thereby minimizing the need for a delayed effectiveness.