On April 9, 2003, OPM published a proposed rule in the Federal Register (68 FR 17315) to remove the premiums and age bands from the FEGLI regulations. OPM will announce future premium changes in a Federal Register notice and will maintain the rates on the FEGLI Web site ( www.opm.gov/insure/life ). This will simplify the process for making premium changes when necessary and allow for changes to be made in a more timely manner.

We received no comments on the proposed regulatory change.

I certify that this regulation will not have a significant economic impact on a substantial number of small entities because the regulation only affects life insurance benefits of Federal employees and retirees.

This rule has been reviewed by the Office of Management and Budget in accordance with Executive Order 12866.

The emerald ash borer (EAB) ( Agrilus planipennis ) is a destructive wood-boring insect that attacks ash trees ( Fraxinus spp., including green ash, white ash, black ash, and several horticultural varieties of ash). The insect, which is indigenous to Asia and known to occur in China, Korea, Japan, Mongolia, the Russian Far East, Taiwan, and Canada, eventually kills healthy ash trees after it bores beneath their bark and disrupts their vascular tissues.

EAB has been found in ash trees in several Michigan counties. Within those counties, EAB has infested thousands of square miles, and we estimate that over 30 million ash trees are currently at risk in affected counties. EAB has already caused an estimated $11.6 million in landscape industry and wood lot losses, and approximately $2 million in lost nursery stock sales. Inestimable, though, is the loss of aesthetic, recreational, and habitat-providing values that ash trees provide. Should EAB spread from infested areas in Michigan into forests of the north-central United States, where nursery, landscaping, and timber industries and forest-based recreation and tourism industries are vital components of the economy, the pest's impact would be tremendous. Further, in the affected counties and the areas that surround those counties, ash is a major component of the urban forest because of its natural resistance to other tree pests and its hardiness in urban environments.

Officials of the U.S. Department of Agriculture (USDA) and officials of State, county, and city agencies in Michigan have been conducting an intensive survey and eradication program in the infested areas. The State of Michigan has quarantined 13 counties in the southeastern portion of the State and is restricting the intrastate movement of certain articles from the quarantined areas to prevent the artificial spread of EAB within Michigan. However, Federal regulations are necessary to restrict the interstate movement of certain articles from the quarantined areas to prevent the artificial spread of EAB to other States.

Therefore, we are amending the “Domestic Quarantine Notices” in 7 CFR part 301 by adding a new subpart, “Emerald Ash Borer” (§§ 301.53-1 through 301.53-9, referred to below as the regulations). These regulations quarantine the 13 counties designated in Michigan's State quarantine and restrict the interstate movement of regulated articles from the quarantined areas.

In § 301.53-1, we define the following terms: Administrator, Animal and Plant Health Inspection Service (APHIS), certificate, compliance agreement, emerald ash borer, infestation, inspector, interstate, limited permit, moved (movement, move), person, quarantined area, regulated article, and State. With one exception, these terms are widely used in our other domestic quarantines in part 301, and the definitions we provide in § 301.53-1 are consistent with those provided elsewhere in part 301. We have defined the term emerald ash borer as the insect known as emerald ash borer ( Agrilus planipennis ) in any stage of development.

Certain articles present a significant risk of spreading EAB if the articles are moved from quarantined areas without restriction. We call these articles “regulated articles.” Regulated articles may not be moved interstate from quarantined areas except in accordance with the conditions specified in §§ 301.53-4 through 301.53-9 of the regulations. In § 301.53-2, paragraph (a) designates the following as regulated articles: (1) The emerald ash borer; (2) firewood (all hardwood species); and (3) nursery stock, green lumber, and other material living, dead, cut, or fallen, including logs, stumps, roots, branches, and composted and uncomposted chips of the genus Fraxinus. We are designating all hardwood species of firewood as regulated articles because as hardwood is dried and cut into firewood, it is difficult to identify the species of the tree from which the firewood was derived.

Paragraph (b) of § 301.53-2 provides that any other article, product, or means of conveyance not listed in paragraph (a) of that section may be designated as a regulated article if an inspector determines that it presents a risk of spreading EAB and notifies the person in possession of the article, product, or means of conveyance that it is subject to the restrictions of the regulations. This provision will allow an inspector who discovers evidence of EAB in an article, product, or means of conveyance to take immediate action after informing the person in possession of it that it is being regulated.

In § 301.53-3, paragraph (a) provides that the Administrator will quarantine each State or portion of a State in which EAB has been found by an inspector, in which the Administrator has reason to believe that EAB is present, or which the Administrator deems necessary to regulate because of its inseparability for quarantine enforcement purposes from localities where EAB has been found. Less than an entire State will be designated as a quarantined area only under certain conditions. Such a designation may be made if the Administrator determines that: (1) The State has adopted and is enforcing restrictions on the intrastate movement of regulated articles listed in § 301.53-2 that are equivalent to the interstate movement restrictions imposed by the regulations in §§ 301.53-1 through 301.53-9; and (2) the designation of less than an entire State as a quarantined area will be adequate to prevent the artificial spread of the EAB.

Paragraph (b) of § 301.53-3 provides that the Administrator or an inspector may temporarily designate any nonquarantined area as a quarantined area in accordance with the criteria in § 301.53-3(a). The Administrator will give written notice of this temporary designation to the owner or person in possession of the nonquarantined area, or, in the case of publicly owned land, the person responsible for the management of the nonquarantined area. This is necessary to prevent the spread of EAB before restrictions can be published in the Federal Register concerning the interstate movement of regulated articles from the designated area. As soon as practicable, this area will be added to the list of quarantined areas or the designation will be terminated by the Administrator or an inspector. The owner or person in possession of an area for which designation is terminated will be given notice of the termination as soon as practicable.

In accordance with these criteria, we are quarantining 13 counties in Michigan because of the EAB and restricting the interstate movement of regulated articles from the quarantined areas. Specifically, in § 301.53-3(c) we list Genesee, Ingham, Jackson, Lapeer, Lenawee, Livingston, Macomb, Monroe, Oakland, St. Clair, Shiawassee, Washtenaw, and Wayne Counties, MI, as quarantined areas.

In § 301.53-4, paragraph (a) provides that regulated articles may be moved interstate from a quarantined area into or through an area that is not quarantined if they are accompanied by a certificate or limited permit issued and attached as prescribed by §§ 301.53-5 and 301.53-8.

Paragraph (b) of § 301.53-4 provides that a regulated article may be moved interstate without a certificate or limited permit if the regulated article is moved by the USDA for experimental or scientific purposes or if the regulated article originates outside the quarantined area. Articles originating outside the quarantined area that are moved interstate through a quarantined area must be moved under the following conditions: (1) The points of origin and destination are indicated on a waybill accompanying the regulated article; (2) the regulated article, if moved through the quarantined area during the period of May 1 through August 31 or when the ambient air temperature is 40 °F or higher, is moved in an enclosed vehicle or is completely covered to prevent access by the EAB; (3) the regulated article is moved directly through the quarantined area without stopping (except for refueling or for traffic conditions, such as traffic lights or stop signs), or has been stored, packed, or handled at locations approved by an inspector; and (4) the article has not been combined or commingled with other articles so as to lose its individual identity.

Under Federal domestic plant quarantine programs, there is a difference between the use of certificates and the use of limited permits. Prior to movement, certificates are issued for regulated articles upon a finding by an inspector that, because of certain conditions ( e.g. , the article is free of a pest), the movement presents low risk of disseminating pests. With a certificate, the article may be moved interstate without further restrictions. Limited permits are issued for regulated articles when an inspector has determined that, because of possible pest or disease risk, such articles may be safely moved interstate only subject to further restrictions, such as movement to specified areas and movement for specified purposes. Section 301.53-5 sets out the conditions for issuing certificates and limited permits for movement from areas quarantined for EAB and for canceling certificates and limited permits.

Paragraph (a) of 301.53-5 provides that an inspector or a person operating under a compliance agreement (discussed below) will issue a certificate for the interstate movement of a regulated article if he or she determines that the regulated article:

• Is apparently free of EAB, based on inspection, or the article has been grown, produced, manufactured, stored, or handled in a manner that, in the judgment of the inspector, prevents the regulated article from presenting a risk of spreading EAB;

• Is to be moved in compliance with any additional emergency conditions the Administrator may impose under the Plant Protection Act to prevent the artificial spread of EAB; and

• Is eligible for unrestricted movement under all other Federal domestic plant quarantines and regulations applicable to the regulated article.

Paragraph (b) of 301.53-5 provides for the issuance of a limited permit (rather than a certificate) by an inspector or person operating under a compliance agreement for movement of a regulated article if he or she determines that the regulated article:

• Is to be moved interstate to a specified destination for specific processing, handling, or utilization (the destination and other conditions to be listed in the limited permit and/or compliance agreement), and the interstate movement will not result in the artificial spread of EAB because EAB will be destroyed by the specific processing, handling, or utilization;

• Is to be moved interstate in compliance with any additional emergency conditions the Administrator may impose under the Plant Protection Act to prevent the artificial spread of EAB; and

• Is eligible for unrestricted movement under all other Federal domestic plant quarantines and regulations applicable to the regulated article.

Paragraph (c) of 301.53-5 provides that an inspector will issue blank certificates and limited permits to a person operating under a compliance agreement or authorize reproduction of the certificates or limited permits on shipping containers, or both, as requested by the person operating under the compliance agreement. These certificates or limited permits may then be completed and used, as needed, for the interstate movement of regulated articles that have met all of the requirements of § 301.53-5(a) or § 301.53-5(b), respectively.

Paragraph (d) of 301.53-5 provides that a certificate or limited permit may be canceled by an inspector, orally or in writing, whenever the inspector determines that the holder of the certificate or limited permit has not complied with the regulations. If the cancellation is oral, the cancellation will become effective upon notification by the inspector. The cancellation and the reasons for the cancellation will then be confirmed in writing as soon as circumstances allow after oral notification of the cancellation. Any person whose certificate or limited permit has been canceled may appeal the decision, in writing, within 10 days after receiving the written cancellation notice. The appeal must state all of the facts and reasons that the person wants the Administrator to consider in deciding the appeal. A hearing may be held to resolve a conflict as to any material fact. Rules of practice for the hearing will be adopted by the Administrator. As soon as practicable, the Administrator will grant or deny the appeal, in writing, stating the reasons for the decision.

Section 301.53-6 provides for the use and cancellation of compliance agreements. Under § 301.53-6(a), compliance agreements may be entered into by any person engaged in the growing, handling, or interstate movement of regulated articles if such persons review with an inspector each stipulation of the compliance agreement. Any person who enters into a compliance agreement with APHIS must agree to comply with the regulations.

Paragraph (b) of 301.53-6 explains that a compliance agreement may be canceled by an inspector, orally or in writing, whenever the inspector determines that the person who entered into the compliance agreement has not complied with the regulations. If the cancellation is oral, the cancellation will become effective upon oral notification by the inspector. The cancellation and the reasons for the cancellation will then be confirmed in writing as soon as circumstances allow after oral notification of the cancellation. Any person whose compliance agreement has been canceled may appeal the decision, in writing, within 10 days after receiving the written cancellation notice. The appeal must state all of the facts and reasons that the person wants the Administrator to consider in deciding the appeal. A hearing may be held to resolve a conflict as to any material fact. Rules of practice for the hearing will be adopted by the Administrator. As soon as practicable, the Administrator will grant or deny the appeal, in writing, stating the reasons for the decision.

Paragraph (a) of § 301.53-7 provides that any person who requires certification or other services from an inspector must request the services at least 48 hours before they are needed. Paragraph (b) of § 301.53-7 provides that regulated articles must be assembled at the place and in the manner an inspector designates as necessary to comply with the regulations.

In § 301.53-8, paragraph (a) requires that regulated articles intended for interstate movement be plainly marked with the name and address of the consignor and the name and address of the consignee and that, during the interstate movement, the certificate or limited permit issued for the interstate movement of regulated articles be attached to either: (1) The regulated article, (2) the container carrying the regulated article, or (3) the accompanying waybill. However, the certificate or limited permit may be attached to the consignee's copy of the waybill only if the certificate or limited permit and the waybill contain a sufficient description of the regulated article to identify the regulated article. This provision is necessary for enforcement purposes.

Paragraph (b) of 301.89-9 requires the carrier of the article to furnish the certificate or limited permit to the consignee at the shipment's destination.

Section 301.53-9 provides that the services of an inspector are provided without cost during normal business hours to persons requiring those services to comply with the regulations. The user will be responsible for all costs and charges arising from inspection and other services provided outside of normal business hours.

This rulemaking is necessary on an emergency basis to prevent the spread of EAB into noninfested areas of the United States. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this rule effective less than 30 days after publication in the Federal Register .

We will consider comments we receive during the comment period for this interim rule (see DATES above). After the comment period closes, we will publish another document in the Federal Register . The document will include a discussion of any comments we receive and any amendments we are making to the rule.

This rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

We are quarantining 13 counties in Michigan because of the EAB and restricting the interstate movement of regulated articles from these quarantined areas. This action is necessary on an emergency basis to prevent the artificial spread of this plant pest from infested areas in the State of Michigan to noninfested areas of the United States.

As stated previously, EAB is a highly destructive, wood-boring insect pest that attacks several species of ash ( Fraxinus spp.). White ash ( Fraxinus americana L.), black ash ( Fraxinus nigra Marsh.), and green ash ( Fraxinus pennsylvanica Marshall.) varieties are known to be susceptible in the United States; however, there are indications that other varieties of ash may also be at risk. Therefore, we are placing restrictions on certain articles of the genus Fraxinus.

If the EAB spreads from infested areas in Michigan to the surrounding forests of the northeastern United States, where nursery, landscaping, and timber industries and forest-based recreation and tourism industries play a vital economic role, its impact would be severe. Within 50 miles of Detroit, there are 2,280 square kilometers of forest land, and within 100 miles of the city, there are 7,836 square kilometers of forest. The pest has the potential to destroy entire stands of ash, and any incursion of the pest can result in substantial losses to forest ecosystems, urban trees, and the timber industry. Adults bore D-shaped holes up to a diameter of 1 centimeter into sapwood, and these holes create pathways for pathogens and insect vectors.

Domestically, black, green, and white ash serve as an important component in the forests of the northeast. Further, the wood is used for a variety of applications that require a strong, hard wood with less rigidity than maple. White ash is one of the primary commercial hardwoods used for the production of tool handles, baseball bats, furniture, antique vehicle parts, containers, railroad cars and ties, canoe paddles, snowshoes, boats, doors, and cabinets. Green ash is a valued species for solid wood products, pulp and paper requiring hardwood fibers, crating, boxing, handle stock, and rough lumber. Black ash, while not as strong as other varieties, is regularly used for interior furnishings, furniture, and cabinets. Damage left by the EAB reduces the quality and market value of wood products, and dying and dead trees are useless for manufacturers.

Beyond manufacturing, ash trees play an important role in the urban landscape. Ash is known for its natural resistance to many other trees pests and its hardiness in cities. Many of the ash trees that now serve as ornamental, street, shade, and landscape beautification trees were planted to replace elm trees destroyed because of Dutch elm disease. Ash trees are vital sources of food and shelter for wildlife and livestock, and they have been planted in the rehabilitation of damaged natural areas. Because of the EAB, these natural and aesthetic values are at risk in affected regions.

Earlier this year, Michigan's State EAB quarantine designated only six counties as quarantined areas. Recently, Michigan expanded its quarantine to include seven more counties. County-specific figures included in this analysis apply only to the six counties (Livingston, Macomb, Monroe, Oakland, Washtenaw, and Wayne) originally quarantined by the State; information for the seven counties (Genesee, Ingham, Jackson, Lapeer, Lenawee, St. Clair, and Shiawassee) recently added to the quarantine is not yet available.

Damage to ash trees in the lots owned by the landscape industry and woodlots in southeast Michigan over the past 5 years is estimated at $11.6 million. In Michigan and Canada, we estimate that between 250,000 and 2 million trees are already affected by the pest. In the six counties originally quarantined by the State of Michigan, 26.1 million trees are at risk, and the replacement value of those trees is estimated to be $11.7 billion; this figure, of course, excludes their aesthetic, oxygen-producing, and habitat-providing values. Already, because of EAB infestation and subsequent damage and the effects of the quarantine placed by the State of Michigan, producers have lost approximately $2 million in nursery stock sales. While ash species other than black, green, and white ash have not been attacked in North America, we believe the remaining 13 species may also be susceptible, and in 2002 the Canadian Food Inspection Agency confirmed that theory in the results of a EAB pest risk assessment. In Japan, EAB has also affected trees in the genus Ulmus (elms), Juglans (walnuts and butternuts), and Pterocarya (wingnuts).

The pattern and significant numbers of trees harmed or destroyed because of the pest suggest that EAB has been established in Michigan for at least 5 years, though it was definitively identified only in July 2002. We are not aware of the capability for EAB's natural spread in North America, and information on EAB biology in Asia is scarce. Studies on the pest in both North America and Asia are underway. Current research suggests that EAB typically completes one generation per year in northeastern China and that females lay 68 to 90 eggs in their lifetime. Usually, trees die 2 to 4 years after an EAB attack. We know that adult beetles are capable of dispersing by flight in 8 to 12 meter bursts, and we are aware of EAB “bursting” distances of several kilometers in search of new ash host material.

Since EAB appears to survive well in North American climatic conditions, it is probable that EAB could continue to disperse among various contiguous corridors of host material in natural and urban environments. In northeastern China, EAB has successfully built severely damaging populations and traveled great distances in search of new hosts. Especially troubling in North America is the apparent lack of natural predators and other biological factors that would contribute to EAB mortality. A relative of EAB, the bronze birch borer (Agrilus axius), is capable of a natural spread of 10 to 20 miles per year, and this might be a possible estimate of EAB's spreading capability.

The spread of EAB can be accelerated through human-assisted movement and trade of nursery stock, lumber, and logs. Solid wood packing materials (SWPM), especially if those materials include bark, pose a special concern. From 1985 to 2000, APHIS personnel reported 38 interceptions of species of the genus Agrilus in shipments of SWPM at ports of entry in 11 different States, and those shipments originated in at least 11 countries. Since EAB larvae can overwinter in the sapwood they burrow into, it is uncertain whether debarking of lumber is an effective way to destroy the pest.

Urban areas of the United States cover approximately 3.5 percent of the total land area of the country, contain more than 75 percent of the population, and support an estimated 3.8 billion trees valued at $2.4 trillion. Michigan's total urban tree population is estimated at 110,858,000 trees, and ash is a vital component of this urban forest. Trees in urban Michigan, like trees in any city, sequester gaseous air pollutants and particulate matter, help people conserve energy through the shade they provide, assist in the dispersal of storm water, provide protective shelter belts for urban fauna, and contribute aesthetic pleasure to the lives of city-dwellers and tourists.

Field data from eight cities suggests that ash trees comprise up to 14 percent of the total leaf area of those cities. Based on these data, the ash tree resources at risk in just those eight cities would amount to $565 million; see table 1 below. The survey, the only available data regarding urban ash at risk, concentrates on ash in the eastern United States; however ash is more widely planted in urban regions of the midwest. These estimates are based on the assumption that all living ash in the cities may be destroyed by EAB and did not incorporate estimates of the EAB's biological or artificial spread rates, since those are not known.

Further, assuming that the EAB is capable of spreading through all urban areas of the lower 48 States and destroying all urban ash trees, the United States could suffer a national undiscounted loss of $20 to $60 billion. Since firm data are not available regarding the pest's biological or artificial spread patterns in North America, all losses are based on limited data that assume a 100 percent destruction rate. More field data from urban areas across the United States are needed to provide more accurate estimates of the resources at risk from EAB.

Within Michigan, there are 693 million EAB-susceptible trees grown on timberland, with an undiscounted compensatory value estimated at $18.92 billion. In the 6 counties first quarantined by the State of Michigan, there are more than 31 million ash trees at risk. We are investigating possible monetary losses to forestry interests based on stumpage  1 value. These losses are likely to be less than monetary losses based on compensatory value, since stumpage values are usually applied to older trees that are greater than 5 inches in diameter, and compensatory values are applied for trees greater than 1 inch in diameter.

Should the EAB spread or be artificially introduced to areas outside of Michigan, monetary losses could grow significantly. Ash trees for timber products are predominantly concentrated in the East, and available data on production volumes for ash were available only for this region. Table 2 shows the net volumes of ash trees grown for sawtimber in the Eastern region of the United States in 1996, the most recent year for which data is available. A net volume of 113,916 million board feet of ash sawtimber is grown in the Eastern region, comprising 7.5 percent of the volume of all hardwoods. The average stumpage price for sawtimber sold from national forests in 2000 was $220.30 per 1,000 board feet for all eastern hardwoods.

Using the estimates provided in table 2, the value of ash timber grown in the eastern United States is $25.1 billion (see table 3 below). Based on the establishment of the EAB in Michigan and its range in Asia, it should be able to survive in most of the eastern United States. In Michigan, an estimated 7.7 billion board feet of ash timber is harvested annually. Using the stumpage figures listed previously, Michigan alone could see a loss of $1.7 billion in timber trees.

We must also consider the value of ash trees as important environmental and recreational resources. The recreational use of national forest lands amounted to 341.2 million visitor days  2 in 1996, the most recent year for which data were available. In Michigan, 4.87 million visitor days were spent in the national forests in 1997. While not specifically attributable to the presence of ash trees, these statistics illustrate the importance of forest-based recreation in the United States. Ash trees are important components of U.S. forests; in addition to their aesthetic value, they provide food and shelter for wildlife.

Citizens may also be affected by the presence of EAB in their own yards and neighborhoods. Removing dead or infested trees is costly and inconvenient, and replacement trees may have to grow for years before they offer the same amount of shade and ornamental value. Further, the quarantine restricts people from freely moving firewood and ash products through Michigan.

An estimated $2 million in annual nursery stock sales have already been lost in the six Michigan counties first quarantined by the State. The Michigan Nursery and Landscape Association reports that nursery, plant production, and landscaping industries employ 347,000 Michigan citizens and contribute $3.7 billion to the State's economy. Michigan's nursery producers generate about $711 million in annual sales and distribute their products to 35 U.S. States, Mexico, and Canada; these producers are the second largest agricultural group in Michigan and the fifth largest nursery industry in the United States. Losses, of course, could be larger if the EAB were allowed to spread to other areas of the country. Several European agrilids are known nursery pests, and we now know that EAB is capable of infesting small-diameter nursery stock.

The Regulatory Flexibility Act requires that agencies specifically consider the economic effects of their rules on small entities. The Small Business Administration (SBA) has established size criteria based on the North American Industry Classification (NAICS) for determining which economic entities meet the definition of a small firm. The small entity size standard for nursery and tree production (NAICS code 111421) is $750,000 or less in annual receipts, and $5 million or less in annual receipts for forest nurseries and gathering of forest products (NAICS code 113210). The SBA classifies logging operations (NAICS code 113310), sawmills (NAICS code 321113), and wood product manufacturers generally (NAICS subsector 321) as small entities if fewer than 500 people are employed.

More than 4,000 businesses considered small entities by the SBA are affected within the 6 counties first quarantined for EAB. These entities must meet certain requirements before moving regulated articles from the quarantined areas. Regulated entities may incur additional costs to dispose of articles such as wood debris from tree pruning and removal. Nurseries are currently prohibited from moving ash trees under the State quarantine. However, of the nurseries within those 6 counties, only 10 to 20 operations having a substantial amount of ash nursery stock in the ground are expected to be significantly affected. These entities represent only 0.2 to 0.5 percent of the number of nurseries in the six counties first quarantined.

Damage caused to EAB-affected ash trees in the landscape and woodlots in southeast Michigan over the past 5 years is estimated at $11.6 million. In addition, $2 million of nursery stock was restricted from sale due to the infestation. The monetary values at risk are $11.7 billion in replacement costs in 6 counties first quarantined for EAB alone. The undiscounted value of the national urban tree population that are ash trees amounts to $20 to $60 billion. The undiscounted compensatory value of the 693 million ash trees grown on timberland in Michigan is $18.92 billion, and the corresponding nationwide estimate amounts to 7,553 million trees, valued at $282.26 billion. There are approximately 31 million ash trees in the 6 counties first quarantined by the State.

When conservatively valued in terms of stumpage prices, the value of sawtimber at risk in the eastern United States alone amounts to $25 billion. Over 4,000 businesses that are considered small by SBA standards are affected in the 6 counties first quarantined because of EAB in Michigan. However, very few nursery operations having a substantial amount of ash nursery stock in the ground are expected to be significantly affected. Overall, this rule will help safeguard U.S. ash trees from the EAB by restricting the interstate movement of the nursery stock, logs, and lumber that can serve as its vectors. Although, at this time, we are not able to evaluate the specific effects of this regulation on the seven counties most recently added to Michigan's EAB quarantine, we expect that those counties contain entities similar to those we have considered in this analysis. Therefore, we believe any economic effects on small entities will be small and are outweighed by the benefits associated with preventing a larger U.S. EAB infestation.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.

This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 7 CFR part 3015, subpart V.)

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

In accordance with section 3507(j) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ), the information collection and recordkeeping requirements included in this interim rule have been submitted for emergency approval to the Office of Management and Budget (OMB). OMB has assigned control number 0579-0233 to the information collection and recordkeeping requirements.

We plan to request continuation of that approval for 3 years. Please send written comments on the 3-year approval request to the following addresses: (1) Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, DC 20503; and (2) Docket No. 02-125-1, Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comments refer to Docket No. 02-125, and send your comments within 60 days of publication of this rule.

This interim rule establishes regulations quarantining 13 counties in Michigan because of the emerald ash borer and restricting the interstate movement of regulated articles from these quarantined areas. This action is necessary on an emergency basis to prevent the artificial spread of this plant pest from infested areas in the State of Michigan to noninfested areas of the United States. The paperwork associated with the Emerald ash borer program will include the completion of compliance agreements, certificates, and limited permits. There will also be requests for inspections. We are soliciting comments from the public ( as well as affected agencies) concerning our information collection and recordkeeping requirements. These comments will help us:

(1) Evaluate whether the information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility;

(2) Evaluate the accuracy of our estimate of the burden of the information collection, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology; e.g. , permitting electronic submission of responses).

Estimate of burden: Public reporting burden for this collection of information is estimated to average 0.48 hours per response.

Respondents: Growers, packers, shippers, and exporters of regulated articles and State plant health protection authorities and other cooperators.

Estimated annual number of respondents: 225.

Estimated annual number of responses per respondent: 1.6666.

Estimated annual number of responses: 375.

Estimated total annual burden on respondents: 180 hours. (Due to averaging, the total annual burden hours may not equal the product of the annual number of responses multiplied by the reporting burden per response.)

Copies of this information collection can be obtained from Mrs. Celeste Sickles, APHIS’ Information Collection Coordinator, at (301) 734-7477.

The Animal and Plant Health Inspection Service is committed to compliance with the Government Paperwork Elimination Act (GPEA), which requires Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible. For information pertinent to GPEA compliance related to this interim rule, please contact Mrs. Celeste Sickles, APHIS’ Information Collection Coordinator, at (301) 734-7477.

In an interim rule effective May 2, 2003, and published in the Federal Register on May 8, 2003 (68 FR 24605-24613, Docket No. 03-032-1), we amended the Domestic Quarantine Notices in 7 CFR part 301 by adding a new “Subpart—Sapote Fruit Fly” (§§ 301.99 through 301.99-10, referred to below as the regulations). The regulations designated a portion of Hidalgo County, TX, as a quarantined area because of an infestation of sapote fruit fly and restricted the interstate movement of regulated articles from the quarantined area.

In a second interim rule effective July 15, 2003, and published in the Federal Register on July 22, 2003 (68 FR 43285-43286, Docket No. 03-032-2), we amended the regulations by removing the quarantine on a portion of Hidalgo County, TX, and removing restrictions on the interstate movement of regulated articles from that area based on our determination that the sapote fruit fly had been eradicated from that area. Upon the effective date of our July 2003 interim rule, there were no longer any areas in the continental United States quarantined for the sapote fruit fly.

Comments on each interim rule were required to be received on or before 60 days after the date of its publication in the Federal Register . We did not receive any comments on either of the interim rules. Therefore, for the reasons given in the interim rules, we are adopting the interim rules as a final rule.

This action also affirms the information contained in the interim rules concerning Executive Order 12866 and the Regulatory Flexibility Act, Executive Orders 12372 and 12988, and the Paperwork Reduction Act.

Further, for this action, the Office of Management and Budget has waived its review under Executive Order 12866.

On September 11, 2002, SBA issued a proposed rule to amend its Disclosure of Information regulations (13 CFR part 102, Subpart A) based on the Electronic Freedom of Information Act Amendments of 1996 (EFOIA), 5 U.S.C. 552(a)(2), 67 FR 57539. EFOIA includes provisions authorizing or requiring agencies to promulgate regulations implementing certain EFOIA statutory requirements, including the aggregation of FOIA requests, and the expedited processing of FOIA requests. In addition, EFOIA changes the time limit for responding to a FOIA request from ten to twenty working days, and includes provisions regarding the availability of documents in electronic form, the treatment of electronic records, and the establishment of “electronic reading rooms.” This final rule will revise SBA's FOIA regulations to comply with EFOIA and to reflect current SBA FOIA procedures and practices. It also increases the amount SBA can charge for search and review time to $30 per hour.

The Freedom of Information/Privacy Acts (FOI/PA) Office received one comment, which was not substantive. The commenter suggested that the regulations “should convey the sense of openness associated with the FOIA.” The commenter also suggested that the regulations “should require SBA's FOIA Office to post in its electronic reading room* * *those documents which have been released 5 or more times and are likely to be requested again* * *.” SBA's regulations are in compliance with both the EFOIA and Department of Justice guidelines. In addition, there is a “Frequently Requested Records” section in the electronic reading room.

The Office of Management and Budget has determined that this rule is not a “significant regulatory action” under Executive Order 12866, Regulatory Planning and Review. These amendments are not likely to have an annual economic effect of $100 million or more, result in a major increase in costs or prices, or have a significant adverse effect on competition or the U.S. economy. Instead, these changes will make SBA's FOIA program more streamlined and easier for the public to understand and use.

SBA has determined that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601-612. Under the FOIA, agencies may recover only the direct costs of searching for, reviewing, and duplicating the records processed for requesters. Thus, fees assessed by SBA are nominal.

For the purpose of the Paperwork Reduction Act, 44 U.S.C. Ch. 35, SBA has determined that this rule would not impose new reporting or record keeping requirements.

For purposes of Executive Order 13132, SBA has determined that this rule does not have any federalism implications warranting the preparation of a Federalism Assessment.

For purposes of Executive Order 12988, SBA has determined that this rule is drafted, to the extent practicable, in accordance with the standards set forth in that order.

On March 8, 2003, AMSAFE, Inc. Inflatable Restraints Division, 5456 East McDowell Road, Mesa, AZ, 85215, applied for a supplemental type certificate to install an inflatable lapbelt restraint with a standard upper torso restraint (or shoulder harness) in the Zenair model CH2000. The model CH2000 is a single-engine, two-place airplane with a stall speed in the landing configuration that is below 45 knots.

The inflatable restraint system is a three-point restraint system consisting of a shoulder harness and an inflatable airbag lap belt, and will be installed on both the pilot and co-pilot seats. In the event of an emergency landing, the airbag will inflate and provide a protective cushion between the occupant's head and the airplane's yoke and instrument panel. This will reduce the potential for head and torso injury. The inflatable restraint behaves in a manner that is similar to an automotive airbag, but in this case, the airbags are integrated into the lapbelt. The shoulder harness is conventional and does not inflate. While airbags and inflatable restraints are standard in the automotive industry, the use of an inflatable three-point restraint is novel for general aviation operations.

The FAA has determined that this project will be accomplished on the basis of providing the same current level of safety of the model CH2000 occupant restraint design. The FAA has considered the installation of airbags as having two primary safety concerns:

• That they perform properly under foreseeable operating conditions; and

• That they do not perform in a manner or at such times as to impede the pilot's ability to maintain control of the airplane or constitute a hazard to the airplane or occupants.

The latter point has the potential to be the more rigorous of the requirements. An unexpected deployment while conducting the takeoff and landing phases of flight may result in an unsafe condition. The unexpected deployment may either startle the pilot, or generate a force sufficient to cause a sudden movement of the control yoke. Either action could result in a loss of control of the airplane, the consequences of which are magnified due to the low operating altitudes during these phases of flight. The FAA has considered this when establishing the special conditions.

The inflatable airbag is integrated into the lap belt and relies on sensors to electronically activate the inflator for deployment. These sensors could be susceptible to inadvertent activation, causing deployment in a potentially unsafe manner. The consequences of an inadvertent deployment must be considered in establishing the reliability of the system. AMSAFE, Inc. must show that the effects of an inadvertent deployment in flight are not a hazard to the airplane or that an inadvertent deployment is extremely improbable. In addition, any general aviation aircraft can generate a large amount of cumulative wear and tear on a restraint system. It is likely that the potential for inadvertent deployment increases as a result of this cumulative damage. Therefore, the impact of wear and tear on inadvertent deployment must be considered. Ultimately, because of the effects of this cumulative damage, a life limit must be established for the appropriate system components in the restraint system design.

There are additional factors to be considered to minimize the chances of inadvertent deployment. General aviation airplanes are exposed to a unique operating environment, since the same airplane may be used by both experienced and student pilots. The effect of this environment on inadvertent deployment of the restraint must be understood. Therefore, qualification testing of the firing hardware/software must consider the following:

• The airplane vibration levels appropriate for a general aviation airplane; and

• The inertial loads that result from typical flight or ground maneuvers, including gusts and hard landings.

Any tendency for the firing mechanism to activate as a result of these loads or acceleration levels is unacceptable.

Other influences on inadvertent deployment include high intensity electromagnetic fields (HIRF) and lightning. Since the sensors that trigger deployment are electronic, they must be protected from the effects of these threats. To comply with HIRF and lightning requirements, the AMSAFE, Inc. inflatable restraint system is considered a critical system, since its inadvertent deployment could have a hazardous effect on the airplane.

Given the level of safety of the current Zenair model CH2000 lap belt and shoulder harness restraint, the inflatable restraint must show that it will offer an equivalent level of protection in the event of an emergency landing. In the event of an inadvertent deployment, the restraint must still be at least as strong as a Technical Standard Order certificated belt and shoulder harness. There is no requirement for the inflatable portion of the restraint to offer protection during multiple impacts, where more than one impact would require protection.

The inflatable seatbelt system must deploy and provide protection for each occupant under a crash condition where it is necessary to prevent serious head injury. However, the Zenair CH2000 seats are not certificated to the requirements specified in § 23.562 and it is not known if they would remain intact following exposure to the crash pulse identified in § 23.562. Therefore, the test crash pulse used to satisfy this requirement may have a peak longitudinal deceleration lower than that required by § 23.562. However, the test pulse must have an onset rate (deceleration divided by time) equal to or greater than the onset rate of the pulse described in § 23.562. This will demonstrate that the crash sensor will trigger when exposed to a rapidly applied deceleration, like an actual crash event.

It is possible a wide range of occupants will use the inflatable restraint. Thus, the protection offered by this restraint should be effective for occupants that range from the fifth percentile female to the ninety-fifth percentile male. Energy absorption must be performed in a consistent manner for this occupant range.

In support of this operational capability, there must be a means to verify the integrity of this system before each flight. As an option, AMSAFE, Inc. can establish inspection intervals where they have demonstrated the system to be reliable between these intervals.

It is possible that an inflatable restraint will be “armed” even though no occupant is using the seat. While there will be means to verify the integrity of the system before flight, it's also prudent to require that unoccupied seats with active restraints not constitute a hazard to any occupant. This will protect any individual performing maintenance items inside the cockpit while the aircraft is on the ground and includes protection against inadvertent deployment.

In addition, the use and operation of this restraint must be transparent to the user. Therefore, the design must prevent the inflatable seatbelt from being incorrectly buckled and/or installed such that the airbag would not properly deploy. As an alternative, AMSAFE, Inc. may show that such deployment is not hazardous to the occupant, and will still provide the required protection.

The cockpit of the model CH2000 is a confined area, and the FAA is concerned that noxious gasses may accumulate in the event the inflatable restraint deploys. When deployment does occur, either by design or inadvertently, there must not be a release of hazardous quantities of gas or particulate matter into the cockpit area.

Fire is a concern for any airplane, regardless of the size or class of the airplane. An inflatable restraint should not increase the risk already associated with fire. Therefore, the inflatable restraint should be protected from the effects of fire, so that an additional hazard is not created by, for example, a rupture of the inflator.

Finally, the inflatable restraint is likely to have a large volume displacement, where the inflated bag could impede the egress of an occupant. Since the bag deflates to absorb energy, it is likely that the inflatable restraint would be deflated at the time an occupant would attempt egress. However, it is appropriate to specify a time interval after which the inflatable restraint may not impede rapid egress. Ten seconds has been chosen as reasonable time. This time limit will offer a level of protection throughout the impact event.

Under the provisions of § 21.101, AMSAFE, Inc. must show that the Zenair model CH2000, as changed, continues to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. TA5CH 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 regulations incorporated by reference in Type Certificate No. TA5CH are as follows:

For the model listed above, the certification basis also includes all exemptions, if any; equivalent level of safety findings, if any; and the special conditions adopted by this rulemaking action.

The Administrator has determined that the applicable airworthiness regulations ( i.e. , part 23 as amended) do not contain adequate or appropriate safety standards for the AMSAFE, Inc. inflatable restraint as installed on Zenair model CH2000 because of a novel or unusual design feature. Therefore, special conditions are prescribed under the provisions of § 21.16.

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

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

The Zenair model CH2000 will incorporate the following novel or unusual design feature:

The AMSAFE, Inc. Inflatable Three-Point Self-Adjusting Restraint safety belt with an integrated inflatable airbag device. The purpose of the inflatable airbag seatbelt is to reduce the potential for injury in the event of an accident. In a severe impact, an airbag will deploy from the lapbelt portion of the restraint, in a manner similar to an automotive airbag. The airbag will deploy between the head of the occupant and the airplane's yoke and instrument panel. This will, therefore, provide some protection to the head of the occupant. The restraint will rely on sensors to electronically activate the inflator for deployment.

Title 14 of the Code of Federal Regulations, parts 21 and 23, states performance criteria for seats and restraints in an objective manner. However, none of these criteria are adequate to address the specific issues raised concerning inflatable restraints. Therefore, the FAA has determined that, in addition to the requirements of part 21 and part 23, special conditions are needed to address the installation of this inflatable restraint.

Accordingly, these special conditions are adopted for the Zenair model CH2000 equipped with the AMSAFE, Inc. Three-Point Self-Adjusting Restraint safety belt with an integrated inflatable airbag device. Other conditions may be developed, as needed, based on further FAA review and discussions with the manufacturer and civil aviation authorities.

Notice of proposed special conditions No. 23-03-01-SC for the Zenair model CH2000 equipped with the AMSAFE, Inc. Three-Point Self-Adjusting Restraint safety belt with an integrated airbag device was published on July 17, 2003 (68 FR 42315). One comment was received, regarding the requirement that the lapbelt must deploy and provide protection under the crash conditions specified in § 23.562 (proposed Special Condition No. 1).

The commenter is in general agreement with the special conditions proposed for this particular program. In addition, the commenter is in agreement that a dynamic test is necessary to demonstrate the deployment timing and positioning of the inflatable lapbelt. However, the commenter states that proposed SC No. 1, as written, requires the inflatable restraint to operate only when subjected to the crash pulse identified in § 23.562. In addition, since the seats installed in the Zenair CH2000 do not meet the requirements of § 23.562, an inflatable restraint that operates only after being exposed to this pulse may offer little benefit.

The commenter suggests that reference to § 23.562 be retained, but allow for the following:

• The test pulse may have a reduction in the peak longitudinal deceleration but the onset rate (deceleration divided by time) must be equal to or greater than the pulse specified in § 23.562.

• The peak longitudinal deceleration must be greater than the deployment threshold of the crash sensor.

• The peak longitudinal deceleration must be equal to or greater than the forward static design load factors required by the original certification basis of the airplane.

The FAA concurs. The seats installed in the Zenair CH2000 may not satisfy the requirements of § 23.562, so it is not appropriate to install an inflatable restraint that will deploy only when subjected to the crash pulse specified in § 23.562. The FAA agrees that the test pulse used to satisfy the dynamic test requirements must be less severe than that specified in § 23.562. In addition, we agree with the commenter that the onset rate of the test pulse should be equal to or greater than the onset rate of the pulse required by § 23.562. This will show that the crash sensor will trigger when exposed to a high deceleration that builds up in rapid time, like a real crash event.

The FAA will incorporate the commenter's input into Special Condition No. 1.

As discussed above, these special conditions are applicable to the Zenair model CH2000 equipped with the AMSAFE, Inc. Three-Point Self-Adjusting Restraint safety belt with an integrated inflatable airbag device. Should AMSAFE, Inc. apply at a later date for a supplemental type certificate to modify any other model on Type Certificate number TA5CH to incorporate the same novel or unusual design feature, the special conditions would apply to that model as well under the provisions of § 21.101.

This action affects only certain novel or unusual design features on the Zenair model CH2000. It is not a rule of general applicability, and it affects only the applicant who applied to the FAA for approval of these features on the airplane.

The means of protection must take into consideration a range of stature from a 5th percentile female to a 95th percentile male. The inflatable lapbelt must provide a consistent approach to energy absorption throughout that range.

2. The inflatable lapbelt must provide adequate protection for each occupant. In addition, unoccupied seats that have active seat belts must not constitute a hazard to any occupant.

3. The design must prevent the inflatable safety belt from being incorrectly buckled and/or incorrectly installed such that the airbag would not properly deploy. Alternatively, it must be shown that such deployment is not hazardous to the occupant and will provide the required protection.

4. It must be shown that the inflatable lapbelt system is not susceptible to inadvertent deployment as a result of wear and tear or inertial loads resulting from in-flight or ground maneuvers (including gusts and hard landings) that are likely to be experienced in service.

5. It must be shown (or be extremely improbable) that an inadvertent deployment of the restraint system during the most critical part of the flight does not impede the pilot's ability to maintain control of the airplane or cause an unsafe condition (or hazard to the airplane). In addition, a deployed inflatable restraint must be at least as strong as a Technical Standard Order certificated belt and shoulder harness.

6. It must be shown that deployment of the restraint system is not hazardous to the occupant or result in injuries that could impede rapid egress. This assessment should include occupants whose belt is loosely fastened.

7. It must be shown that an inadvertent deployment that could cause injury to a standing or sitting person is improbable.

8. It must be shown that the inflatable safety belt will not impede rapid egress of the occupants 10 seconds after its deployment.

9. For the purposes of complying with HIRF and lightning requirements, the inflatable safety belt system is considered a critical system since its deployment could have a hazardous effect on the airplane.

10. It must be shown that the inflatable safety belt will not release hazardous quantities of gas or particulate matter into the cabin.

11. The inflatable safety belt installation must be protected from the effects of fire such that no hazard to occupants will result.

12. There must be a means to verify the integrity of the inflatable safety belt activation system prior to each flight or it must be demonstrated to reliably operate between inspection intervals.

13. A life limit must be established for appropriate system components.

14. Qualification testing of the internal firing mechanism must be performed at vibration levels appropriate for a general aviation airplane.

On April 11, 2003, Learjet Inc. (subsidiary of Bombardier Aerospace) applied for a supplemental type certificate for installation of single-occupant side-facing seats on Bombardier BD-100-1A10 airplanes. Bombardier Aerospace requested that special conditions be issued for these seats and that the special conditions be listed on the type certificate data sheet of the BD-100-1A10 airplane. The Model BD-100-1A10 is a twin engine, turbofan powered, transport category airplane which is currently the subject of a type certification program.

Section 25.785(a) at Amendment 25-64 requires that each seat “at each station designated as occupiable during takeoff and landing must be designed so that persons occupying these seats will not suffer serious injury in an emergency landing as a result of the inertia forces specified in §§ 25.561 and 25.562.” Additionally, § 25.562 requires dynamic testing of all seats that are occupied during takeoff and landing. However, side-facing seats are considered a novel design for transport category airplanes that include Amendment 25-64 in the certification basis and were not considered when those airworthiness standards were promulgated. Hence, the existing regulations do not provide adequate or appropriate safety standards for occupants of side-facing seats. In order to provide a level of safety that is equivalent to that afforded occupants of forward and aft facing seats, additional airworthiness standards in the form of special conditions are necessary.

These special conditions are applicable only to single-occupant side-facing seats. They are not sufficient or intended to be used for the certification of multiple-occupant side-facing divans or sofas.

Under the provisions of § 21.101, Learjet Inc. (subsidiary of Bombardier Aerospace) must show that the Model BD-100-1A10 airplane, as changed, continues to meet the applicable provisions of the regulations incorporated by reference in T00005NY 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 regulations incorporated by reference in T00005NY are as follows:

14 CFR part 25, effective February 1, 1965, as amended by Amendments 25-1 through 25-98; 14 CFR part 34, effective September 10, 1990.

If the Administrator finds that the applicable airworthiness regulations ( i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Bombardier Aerospace Model BD-100-1A10 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 Bombardier Aerospace Model BD-100-1A10 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 § 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 the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, the special conditions would also apply to the other model.

Bombardier Aerospace will install single-occupant side-facing seats on BD-100-1A10 airplanes. Section 25.785(b) requires that each seat “at each station designated as occupiable during takeoff and landing must be designed so that persons occupying these seats will not suffer serious injury in an emergency landing as a result of the inertia forces specified in §§ 25.561 and 25.562.” Additionally, § 25.562 requires dynamic testing of all seats that are occupied during takeoff and landing. However, side-facing seats are considered a novel design for transport category airplanes that include Amendment 25-64 in the certification basis, and were not considered when those airworthiness standards were promulgated. Hence, the existing regulations do not provide adequate or appropriate safety standards for occupants of side-facing seats. In order to provide a level of safety that is equivalent to that afforded occupants of forward and aft facing seats, additional airworthiness standards, in the form of special conditions, are necessary.

The following special conditions are considered to provide occupants of single-occupancy side-facing seats a level of safety that is equivalent to that afforded occupants of forward and aft facing seats. These special conditions supplement 14 CFR part 25 and, more specifically, they supplement §§ 25.785 and 25.562.

Notice of proposed special conditions No. 25-03-06-SC for the Bombardier Aerospace Model BD-100-1A10 airplane was published in the Federal Register on August 26, 2003 (68 FR 51203). No comments were received, and these special conditions are adopted as proposed.

As discussed above, these special conditions are applicable to the Bombardier Aerospace Model BD-100-1A10 airplane. Should Bombardier Aerospace apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.

Under standard practice, the effective date of final special conditions would be 30 days after the date of publication in the Federal Register ; however, as the certification date for the Bombardier Aerospace Model BD-100-1A10 airplane is imminent, the FAA finds that good cause exists to make these special conditions effective upon issuance.

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

On May 20, 1999, Embraer applied for a type certificate for its new Model ERJ-170 airplane. Two basic versions of the Model ERJ-170 are included in the application. The ERJ-170-100 airplane is a 69-78 passenger, twin-engine regional jet with a maximum takeoff weight of 81,240 pounds. The ERJ-170-200 is a derivative with a lengthened fuselage. Passenger capacity for the ERJ-170-200 is increased to 86, and maximum takeoff weight is increased to 85,960 pounds.

Under the provisions of 14 CFR 21.17, Embraer must show that the Model ERJ- 170 series airplanes meet the applicable provisions of 14 CFR part 25, as amended by Amendments 25-1 through 25-98.

If the Administrator finds that the applicable airworthiness regulations ( i.e. , part 25, as amended) do not contain adequate or appropriate safety standards for Embraer Model ERJ-170 series airplanes because of novel or unusual design features, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, Embraer Model ERJ-170 series 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, and the FAA must issue a finding of regulatory adequacy pursuant to section 611 of Public Law 93-574, the “Noise Control Act of 1972.”

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 § 21.17(a)(2), Amendment 21-69, effective September 16, 1991.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design features, the special conditions would also apply to the other model under the provisions of § 21.101.

The ERJ-170 airplane will use fly-by-wire (FBW) technology as a means of sending command and control signals to the control surface actuators of the rudder, rudder trim, elevator, spoilers, horizontal stabilizer, and auto speedbrake. The ailerons will be controlled by a traditional cable linkage to the hydraulic actuators.

The ERJ-170 FBW flight control systems provide two modes of operation, direct and normal. Direct mode provides an analog link between pilot commands and control surfaces. In direct mode, flight control transducers send signals to Actuator Control Electronics units (ACE). The ACE sends analog command and control signals to the Power Control Units (PCU), which move the control surface actuators of the rudder, rudder trim, elevator, spoilers, horizontal stabilizer, and auto speedbrake.

In normal mode, the rudder, elevator and spoiler command-to-surface gain schedules are tailored to particular flight conditions to provide improved control characteristics. These gains are calculated digitally in the Flight Control Module (FCM) and supplement the direct mode commands provided by the ACEs.

In the ERJ-170 FBW design being presented, command and control of the airplane's aerodynamic control surfaces will be achieved by electronic interfaces. These interfaces involve not only direct commands to the PCU but all the necessary feedback sensor signals. A successful demonstration of signal integrity must include all the elements which contribute to the command and control signals to the control surface closed loop system (CSCL). The CSCL may include the following:

(1) The computing components and wiring;

(2) The input components, such as column position sensors;

(3) Feedback components, such as control surface position, inertial reference, and air data sensors; and

(4) Actuation components and their structural mounting components.

A system evaluation that includes all the inputs to and elements of the CSCL in an integrated environment (including signals that could disturb the system) is necessary to ensure appropriate system robustness throughout the flight envelope.

For the purpose of this proposed special condition, the control surface closed loop system does not include pilot input to the flight control system. Pilot in the loop control inputs and the associated handling requirements are adequately covered by existing regulations, including regulations in subpart B as well as §§ 25.671 and 25.672.

The signal paths within the control surface closed loop system can be susceptible to interference from electromagnetic and electrostatic sources within the integrated systems environment of the aircraft as well as external causes, such as HIRF and lightning (not considered in this special condition), which could modify the command and control signals.

The effects of interference sources within the system may include, but are not restricted to, the following:

• Loss of data bits,

• Unwanted transients in the power supply source,

• Disruption of normal computer operations,

• Misbehavior of signals by parallel computers ( e.g. , redundancy management),

• Adverse effects caused by transport lag, and

• Any other cause that may alter the command and control signals.

For those reasons, special design measures and laboratory tests intended to validate these designs will be required to demonstrate the integrity of the FBW Flight Controls System to a level of safety equivalent to that which is achieved with traditional hydromechanical designs.

The regulations which primarily address hydromechanical flight control systems, ( i.e. , 14 CFR 25.671 and 25.672) do not specifically require that command and control signals remain unaltered from internal or external interference. Traditional designs feature steel cables and pushrods as means to move surface actuators which are hydraulically powered. These designs are not likely to be affected by spurious electromagnetic and computer induced signals, as are the FBW designs.

Similar special conditions have been issued previously for other airplanes that utilize FBW flight control systems, such as the Airbus A320 series, Airbus A330/340 series, and most recently, the Boeing 777 series.

The special conditions applied to the Boeing 777 series include a requirement for changes in mode of flight critical control systems. This requirement was intended to ensure a minimum level of availability for normal mode flight control. For the Boeing 777 series, the FAA did not consider § 25.1309(b) adequate for that purpose.

In the ERJ-170 FBW flight control system, normal mode consists of a simple analog control signal augmented by limited authority digitally computed signals. Direct mode consists of only the analog signal. The FAA believes that the existing 14 CFR 25.1309(b) provides a suitable requirement for assessing the effect and frequency of FBW flight control system mode changes or lost functionality for the ERJ-170 series, and thus the specific requirement included with the Boeing 777 series special conditions was not included in these proposed special conditions.

In addition to the specific difference noted above, a number of smaller changes were made to the Boeing 777 series special condition to create these proposed special conditions. These additional changes were made to improve readability and to define with greater precision the intended scope of some of the paragraphs through use of consistent and defined terminology.

Notice of proposed special conditions No. 25-03-05-SC for the Embraer Model ERJ-170 series airplane was published in the Federal Register on June 16, 2003 (68 FR 35612). No comments were received, and these special conditions are adopted as proposed.

As discussed above, these special conditions are applicable to the Embraer Model ERJ-170 series airplanes. Should Embraer apply later for a change to the type certificate to include another model incorporating the same novel or unusual design features, these special conditions would apply to that model as well under the provisions of § 21.101.

Under standard practice, the effective date of final special conditions would be 30 days after the date of publication in the Federal Register ; however, as the certification date for the Embraer Model ERJ-170 series airplane is imminent, the FAA finds that good cause exists to make these special conditions effective upon issuance.

This action affects only certain novel or unusual design features on the Embraer Model ERJ-170 series airplanes. It is not a rule of general applicability, and it affects only the applicant who applied to the FAA for approval of these features on the airplane.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 95-16-02, amendment 39-9321 (60 FR 39631, August 3, 1995), which is applicable to certain Boeing Model 747SP, 747SR, 747-100, -200, and -300 series airplanes, was published as a supplemental Notice of Proposed Rulemaking (NPRM) in the Federal Register on May 1, 2003 (68 FR 23235). The action proposed to continue to require repetitive operational tests of the reversible gearbox pneumatic drive unit (PDU) or the reversing air motor PDU to ensure that the unit can restrain the thrust reverser sleeve, and correction of any discrepancy found. The action also proposed the installation of a terminating modification, repetitive functional tests of that installation to detect discrepancies, and repair if necessary. Additionally, the action also proposed to remove airplanes from the applicability and to add certain new requirements.

The FAA has revised the applicability paragraph of this AD by specifying the applicable engine models for the Pratt & Whitney Model JT9D-7 series engines ( i.e. , -7, -7A, -7F, and -7J). We also point out that the Model JT9D-7Q series engines is a separate engine series and is not included in the Model JT9D-7 series engines. To clarify that point, we have added a new Note 1 to advise and clarify that this AD does not apply to Pratt & Whitney Model JT9D-70A engines, as those engines are not part of the Model JT9D-7 series engines. Subsequent notes in this AD have been renumbered accordingly.

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

One commenter states that the description of the new relevant service information fails to note that changing from three-step aisle stand clutch packs to two-step, as described in Boeing Service Bulletin (SB) 747-78-2152, Revision 4, may not be necessary. The commenter explains that Revisions 5 and 6 of that SB provide for continued use of the three-step clutch in some instances. Therefore, the commenter requests that clarification to allow such continued use of the three-step clutch be specified in the final rule.

The FAA acknowledges that the description in the “New Relevant Service Information” paragraph did not specify continued use of the three-step clutch and agrees that clarification is needed. We point out that the intent of the requirements in paragraph (c)(3) of the final rule is that the system pass all required tests. Although the two-step configuration is typically necessary for the microswitch pack conversion, we acknowledge that provision for use of the three-step clutch is provided for in Revisions 5 and 6 of Boeing SB 747-78-2152. Since paragraph (c)(3) of the final rule specifies compliance with either Revision 5 or 6 (including the provision for use of the three-step clutch), it is unnecessary to revise the final rule for that reason.

One commenter advises that there is a later revision of the Boeing 747 AMM than that revision specified as the source of service information for the repetitive test instructions in paragraph (d) of the supplemental NPRM.

The FAA acknowledges that a later revision of the AMM has been issued and infers that the commenter is requesting that we revise the supplemental NPRM to specify the newer revision of the AMM. Revising the AD is unnecessary because, as long as the referenced section is unchanged in later versions of the AMM, those later versions may be used to comply with this AD. On the other hand, since the AMM is not a document that is approved by the FAA, it is possible that a specific revision level may be revised in such a way as to affect the accomplishment of the AD. Therefore, when a specific revision level is referenced in an AD, that specific revision has been “approved” for the purposes of the AD. Under the provisions of paragraph (g)(1) of the final rule, we may approve requests for using a later revision of the AMM that changes the referenced section if data are submitted to substantiate that such use would provide an acceptable level of safety. No change is necessary to this AD in that regard.

One commenter notes that some airplanes could be modified before the effective date of the AD and could then revert to operating with unmodified thrust reversers installed, which would be contrary to the requirements of paragraph (c)(3) of the supplemental NPRM. Therefore, the commenter requests that, instead of the compliance time specified in paragraph (e) of the supplemental NPRM of “within 10 days after deactivation of the thrust reverser,” the compliance time read, “within 90 days after the effective date of the AD.” The commenter explains that such an extension of the compliance time would prevent possible non-compliance with the AD. Further, the commenter states that there is no more risk of the unmodified reverser deploying on a modified airplane than on an unmodified airplane.

The FAA does not agree that the compliance time for paragraph (e) of this AD should be revised. If an airplane has one or more unmodified thrust reverser(s) installed prior to the effective date of the AD, it has not yet complied with the requirements of paragraph (c)(3) of the AD. The compliance time for the modification required by paragraph (c)(3) of the AD is within 48 months after the effective date of the AD. The qualifying provisions of paragraph (e) of the AD specifically apply to airplanes “after incorporation of the modification required by paragraph (c)(3) of the AD.” We consider the 48-month compliance time for the modification required by paragraph (c)(3) of the AD, plus the 10-day dispatch limitation of the Master Minimum Equipment List, to be adequate time to complete the requirements of paragraph (e) of the AD. It is unnecessary to revise the AD for that reason.

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

On July 10, 2002, the FAA issued a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the FAA's airworthiness directives system. The regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance (AMOCs). However, for clarity and consistency in this final rule, we have retained the language of the supplemental NPRM regarding that material.

We have reviewed the figures we have used over the past several years to calculate AD costs to operators. To account for various inflationary costs in the airline industry, we find it necessary to increase the labor rate used in these calculations from $60 per work hour to $65 per work hour. The cost impact information, below, reflects this increase in the specified hourly labor rate.

There are approximately 455 airplanes of the affected design in the worldwide fleet. The FAA estimates that 218 airplanes of U.S. registry will be affected by this AD.

The operational tests that are currently required by AD 95-16-02, and retained in this AD, take approximately 16 work hours (4 per engine) per airplane to accomplish, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of the currently required actions is estimated to be $1,040 per airplane, per test cycle.

It will take approximately 544 work hours per airplane, to accomplish the wiring modifications, at an average labor rate of $65 per work hour. Required parts will cost approximately $21,600 per airplane. Based on these figures, the cost impact of the wiring modifications required by this AD on U.S. operators is estimated to be $12,417,280, or $56,960 per airplane.

It will take approximately 104 work hours (26 per engine) per airplane to accomplish the removal of the thrust reverser sequencing mechanism and installation of a solenoid-operated shutoff valve, at an average labor rate of $65 per work hour. The cost of required parts is minimal. Based on these figures, the cost impact of the removal and installation required by this AD on U.S. operators is estimated to be $1,473,680, or $6,760 per airplane.

It will take approximately 568 work hours per airplane to accomplish the sync lock hardware installation, at an average labor rate of $65 per work hour. Required parts will cost approximately $166,000 per airplane. Based on these figures, the cost impact of the installation required by this AD on U.S. operators is estimated to be $44,236,560, or $202,920 per airplane.

It will take approximately 8 work hours (2 per engine) per airplane to accomplish the functional test, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of the functional test required by this AD on U.S. operators is estimated to be $113,360, or $520 per airplane, per test cycle.

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

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by revising AD 2003-05-10, Amendment 39-13086 (68 FR 12806, March 18, 2003), which applies to GE CF34-3A1, -3B, and -3B1 turbofan engines with scavenge screens P/Ns 4047T95P01 and 5054T86G02 installed in the B-sump oil scavenge system was published in the Federal Register on July 8, 2003 (68 FR 40573). That action proposed to require the same initial and repetitive visual inspections and cleaning of the B-sump scavenge screens until a screenless fitting is installed as in AD 2003-05-10. That action also proposed to correct a typographical error, and introduces a less restrictive terminating action schedule in accordance with GE Alert Service Bulletin (ASB) CF34-AL S/B 79-A0014, Revision 3, dated January 31, 2003; ASB CF34-BJ S/B 79-A0015, Revision 3, dated January 31, 2003; GE ASB CF34-AL S/B 79-A0016 and ASB CF34-BJ S/B 79-A0017, both dated June 17, 2002.

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

This final rule does not have federalism implications, as defined in Executive Order 13132, because it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, the FAA has not consulted with state authorities prior to publication of this final rule.

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

Has FAA taken any action to this point? Maintenance inspection procedures did not allow for thorough inspection of the wing structure on Univair Models Alon A-2 and A2-A; ERCO 415-C, 415-CD, 415-D, 415-E, and 415-G; Forney F-1 and F-1A; and Mooney M10 airplanes. This caused us to issue AD 94-18-04, Amendment 39-9017 (59 FR 43727, August 25, 1994) to require installing inspection openings in the outer wing panels, inspecting (one-time) the wing outer panel structure for corrosion, and repairing any corrosion found.

After AD 94-18-04 was issued, Univair revised Service Bulletin No. 29 to the Revision B level. Univair Service Bulletin No. 29, Revision B, dated January 2, 1995, changed the dimension of one of the openings to position it symmetrically between two ribs; and clarified the dimensioning system utilized in placement of the inspection openings. Univair SB No. 29, Revision B, also presented further discussion of the service difficulties encountered on the referenced subject and clarified the intent of the preliminary inspection procedure that may be accomplished prior to the installation of the inspection openings.

This caused us to issue AD 94-18-04 R1, Amendment 39-9173 (60 FR 62321, March 14, 1995).

What has happened since AD 94-18-04 R1 to initiate this action? The FAA has received additional reports of corrosion damage in the wing outer panel structural components continuing to go undetected. Univair has revised Service Bulletin No. 29 to the Revision C level, dated July 8, 1999. This revision changes the one-time inspection of the wing outer panel structural components for corrosion to a repetitive inspection.

What is the potential impact if FAA took no action? This condition, if not detected and corrected, could cause damage to the wing outer panel structural component. Such damage could result in structural failure.

Has FAA taken any action to this point? We issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to all Univair Models Alon A-2 and A2-A; ERCO 415-C, 415-CD, 415-D, 415-E, and 415-G; Forney F-1 and F-1A, and Mooney M10. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on May 30, 2003 (68 FR 32437). The NPRM proposed to supersede AD 94-18-04 R1 with a new AD that would retain the actions required in AD 94-18-04 R1 and make the one-time inspection of the wing outer panel structural components for corrosion a repetitive inspection.

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

What is FAA's final determination on this issue? We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed except for minor editorial corrections. We have determined that these minor corrections:

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

How many airplanes does this AD impact? We estimate that this AD affects 2,600 airplanes in the U.S. registry.

What is the cost impact of this AD on owners/operators of the affected airplanes? We estimate the following costs to accomplish the installation of the inspection openings:

A proposal to amend 14 CFR part 39 to include an AD for Eurocopter Model AS 350B3, SA-365N, N1, AS-365N2, AS 365N3, and EC 155B helicopters was published in the Federal Register on April 22, 2003 (68 FR 19757). That action proposed to require modifying the SIREN cargo hook and inspecting the cargo hook locking catch for corrosion.

The Direction Generale De L'Aviation Civile (DGAC), the airworthiness authority for France, notified the FAA that an unsafe condition may exist on Eurocopter Model AS 350 B3, AS-365N, N1, AS 365N2, AS 365N3, and EC 155 B helicopters fitted with Siren cargo hooks, part number (P/N) AS-21-5-7. The DGAC advises that corrosion was discovered on a locking catch, which might lead to untimely load release.

Eurocopter has issued Alert Telexes No. 05.00.39, for Model AS 350B3 helicopters; No. 05.00.41, for Model AS 365N, N1, AS 365N2, and AS 365N3 helicopters; and No. 05A002, for Model EC 155B helicopters; all dated December 20, 2001, which specify an initial corrosion check, and verification of Amendment B to prevent any risk of untimely load release due to locking catch corrosion combined with in-flight vibrations. Amendment B requires marking a permanent reference line across the rotating bolt and stationary cover plate for the cargo hook, affixing a placard to the cover plate, and marking the letter “B” on the amendment identification plate of the release unit and on the equipment log card. The DGAC classified these alert telexes as mandatory and issued AD No. 2002-044(A), dated January 23, 2002, to ensure the continued airworthiness of these helicopters in France.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were received on the proposal or the FAA's determination of the cost to the public. The FAA has determined that air safety and the public interest require the adoption of the rule as proposed, except changing the FAA office name and revising the cites in proposed paragraph (b) to clarify that an owner/operator (pilot) may perform all the actions required by paragraph (a). The FAA has determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.

The action in paragraph (a) of this AD, for cargo hook, P/N AS-21-5-7, with Amendment B incorporated, may be performed by an owner/operator (pilot), and must be entered into the helicopter records showing compliance with that paragraph in accordance with 14 CFR sections 43.11 and 91.417(a)(2)(v). This AD allows a pilot to perform these actions because they involve only manipulating the manual cargo release and checking the reference line for continuity, and can be performed equally well by a pilot or a mechanic. For cargo hook, P/N AS-21-5-7, without Amendment B incorporated, a mechanic must incorporate Amendment B in accordance with the applicable alert telex.

On July 10, 2002, the FAA issued a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the FAA's AD system. The regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance. However, for clarity and consistency in this final rule, we have retained the language of the NPRM regarding that material.

The FAA estimates that of the 60 helicopters of U.S. registry, 6 helicopters have the Siren cargo hook installed and will be affected by this AD. The FAA also estimates that it will take approximately 3 work hours per helicopter to incorporate Amendment B and .25 work hour to conduct and record the pilot check with 60 pilot checks performed per year, and that the average labor rate is $60 per work hour. Required parts to incorporate Amendment B will cost $4 for each label. Based on these figures, the total cost impact of this AD on U.S. operators is estimated to be $6,504.

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

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

The FAA published this direct final rule with a request for comments in the Federal Register on August 18, 2003 (68 FR 49345). The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on December 25, 2003. No adverse comments were received, and thus this notice confirms that this direct final rule will become effective on that date.

The FAA published this direct final rule with a request for comments in the Federal Register on August 18, 2003 (68 FR 49348) and subsequently published a correction to the direct final rule in the Federal Register on September 4, 2003 (68 FR 52487). The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. this direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on December 25, 2003. No adverse comments were received, and thus this notice confirms that this direct final rule will become effective on that date.

The FAA published this direct final rule with a request for comments in the Federal Register on August 12, 2003 (68 FR 47844). The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on December 25, 2003. No adverse comments were received, and thus this notice confirms that this direct final rule will become effective on that date.

The FAA published this direct final rule with a request for comments in the Federal Register on August 19, 2003 (68 FR 49690). The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on December 25, 2003. No adverse comments were received, and thus this notice confirms that this direct final rule will become effective on that date.

History

Federal Register Document 03-19165, published on Tuesday, July 29, 2003, (68 FR 44454) modified Class E airspace at Aurora, MO. The modification was to replace “Aurora Memorial Municipal Airport” in the legal descriptions of Aurora, MO Class E airspace area with “Jerry Summers Sr. Aurora Municipal Airport” and to bring the legal description into compliance with FAA Order 7400.2E, Procedures for Handling Airspace Matters. A correction to this direct final rule; request for comments and the direct final rule; confirmation of effective date were subsequently published in the Federal Register on Monday, August 18, 2003, (68 FR 49350) [FR Doc. 03-21078] and Friday, September 12, 2003, (68 FR 53676) [FR Doc. 03-23300] respectively. On Friday, September 23, 2003, the National Flight Data Digest revised the name of the Aurora, MO airport from “Jerry Summers Sr. Aurora Municipal Airport” to “Jerry Sumners Sr. Aurora Municipal Airport.”

The Commission published in the Final Rules in the Federal Register of August 8, 2003 (68 FR 47221), The Final Rules affect CPOs and CTAs and persons excluded or exempted from registering as such. As published, however, the Final Rules contain errors that may be misleading and need clarification. By this release, the Commission is making typographical and technical corrections, none of which directly affect the rights and obligations of persons under the Commission's regulations.

In Rule FR Doc. 03-20094 published on August 8, 2003, make the following corrections:

The final regulations that are the subject of these corrections are under sections 280G of the Internal Revenue Code.

As published, the final regulations (TD 9083) contain errors that may prove to be misleading and are in need of clarification.

Accordingly, the publication of the final regulations (TD 9083), which are the subject of FR Doc. 03-19274, is corrected as follows:

1. On page 45745, column 3, in the preamble, in the caption DATES is corrected to read as follows:

2. On page 45750, column 1, in the preamble under the paragraph heading “ Effective Date and Reliance ”, paragraph 1, line 5, the language “on or after January 1, 2004,” is corrected to read “on or after January 1, 2004. However, taxpayers may rely on these regulations after August 4, 2003, for the treatment of any parachute payment.”.

3. On page 45750, columns 1 and 2, in the preamble under the paragraph heading “ Effective Date and Reliance ”, the last line in the column 1 and first line in column 2, the language “2002 proposed regulations until effective date of the final regulations.” is corrected to read “2002 proposed regulations until January 1, 2004.”.

On June 26, 2003, we published a notice of proposed rulemaking (NPRM) entitled Drawbridge Operation Regulations; Charles River, Dorchester Bay, and Saugus River, Massachusetts, in the Federal Register (68 FR 37990). We received no comments in response to the notice of proposed rulemaking. No public hearing was requested and none was held.

The owner of the bridges, the Metropolitan District Commission (MDC), requested a change to the operating regulations for three of their bridges, the Craigie Bridge, the William T. Morrisey Boulevard Bridge, and the General Edwards SR1A Bridge. The requested change to the drawbridge operation regulations required an eight-hour advance notice during various time periods when these bridges have historically received few requests to open.

The Coast Guard reviewed the drawbridge opening logs submitted by the bridge owner, and determined that the bridges had few requests to open during the time periods the bridge owner has requested the eight-hour advance notice requirement. This rule change will apply to the following bridges and during the following times:

The MDC Craigie Bridge, mile 1.0, across the Charles River has a vertical clearance of 5 feet at mean high water and 15 feet at mean low water in the closed position. The existing operating regulations are listed at 33 CFR 117.591(e). This final rule allows the bridge owner to require an eight-hour advance notice for openings midnight to 8 a.m., during April, May, October, and November.

The William T. Morrisey Boulevard Bridge, at mile 0.0, across Dorchester Bay has a vertical clearance of 12 feet at mean high water and 22 feet at mean low water in the closed position. The existing operating regulations are listed at 33 CFR 117.597. This final rule allows the bridge owner to require an eight-hour advance notice for bridge openings from midnight to 8 a.m., during April, May, and October.

The General Edwards SR1A Bridge, at mile 1.7, across the Saugus River has a vertical clearance of 27 feet at mean high water and 36 feet at mean low water in the closed position. The existing operating regulations are listed at 33 CFR 117.618(b). This final rule allows the bridge owner to require an eight-hour advance notice for bridge openings from midnight to 8 a.m., April through November.

The Coast Guard believes this final rule is reasonable because all three bridges historically have received very few requests, if any, to open during the time periods for which they will now require an eight-hour advance notice prior to opening.

The Coast Guard received no comments in response to the notice of proposed rulemaking and as a result, no changes have been made to this final rule.

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

This conclusion is based on records showing that the bridges normally receive few requests to open during the times the advance notice will be required.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations 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 conclusion is based on records showing that the bridges normally receive few requests to open during the times the advance notice will be required.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process.

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

This rule 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 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 concern an environmental risk to health or risk to safety that may disproportionately affect children.

This final rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have 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. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

We have analyzed this final rule under Commandant Instruction M16475.1D, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (32)(e), of the Instruction, from further environmental documentation. It has been determined that this final rule does not significantly impact the environment.

On July 7, 2003, we published a notice of proposed rulemaking (NPRM) entitled “Safety Zone; Outer Continental Shelf Facility in the Gulf of Mexico in Mississippi Canyon 243” in the Federal Register (68 FR 40229). We received one comment on the proposed rule. No public hearing was requested and none was held.

The Coast Guard is establishing a safety zone around a petroleum and gas production facility in the Gulf of Mexico: Matterhorn Tension Leg Platform A (Matterhorn TLP), Mississippi Canyon 243 (MC 243), located at position 28°44′32″ N, 88°39′32″ W. The safety zone is in effect while the facility is being constructed and after the construction is completed.

This safety zone is in the deepwater area of the Gulf of Mexico. For the purposes of this regulation it is considered to be in waters of 304.8 meters (1,000 feet) or greater depth extending to the limits of the Exclusive Economic Zone (EEZ) contiguous to the territorial sea of the United States and extending to a distance up to 200 nautical miles from the baseline from which the breadth of the sea is measured. Navigation in the area of the safety zone consists of large commercial shipping vessels, fishing vessels, cruise ships, tugs with tows and the occasional recreational vessel. The deepwater area also includes an extensive system of fairways. The fairways include the Gulf of Mexico South Pass Fairway, and the South Pass to Mississippi River-Gulf Outlet Channel Safety Fairway. Significant amounts of vessel traffic occur in or near the various fairways in the deepwater area.

TotalFinaElf E&P USA, Inc., hereafter referred to as TotalFinaElf requested that the Coast Guard establish a safety zone in the Gulf of Mexico around the Matterhorn TLP construction site and for the zone to remain in effect after construction is completed.

The request for the safety zone was made due to the high level of shipping activity around the site of the facility and the safety concerns for construction personnel, the personnel on board the facility after it is completed and the environment. TotalFinaElf indicated that the location, production level, and personnel levels on board the facility make it highly likely that any allision with the facility during and after construction would result in a catastrophic event. The Matterhorn TLP will be a high production petroleum and gas drilling facility, capable of producing approximately 30,000 barrels of oil per day and 50 million cubic feet of gas per day, and manned with a crew of approximately 60 people.

The Coast Guard reviewed TotalFinaElf's concerns and agreed that the risk of allision to the facility and the potential for loss of life and damage to the environment resulting from such an accident during and following the construction of Matterhorn TLP warrants the establishment of this safety zone. This regulation significantly reduces the threat of allisions, oil spills and natural gas releases, and increases the safety of life, property, and the environment in the Gulf of Mexico. This regulation is issued pursuant to 14 U.S.C. 85 and 43 U.S.C. 1333 as set out in the authority citation for 33 CFR part 147.

We received one comment on the proposed rule. The comment addressed several issues, the first being that oil facilities should be built with safeguards to prevent oil pollution and the Coast Guard should insist on total safety for oil drilling at this location. This regulation significantly reduces the threat of allisions, oil spills and natural gas releases, and increases the safety of life, property, and the environment in the Gulf of Mexico by creating a no entry zone around the facility applicable to certain vessels ( see SUMMARY ). The second issue posed by the comment recommends the Coast Guard deem certain poor weather days as being unsuitable for vessel transits. This issue is not relevant to the rule and will not be discussed. The final issue raised in the comment recommends that the Coast Guard designate “off limit” areas to include the location at which the Matterhorn TLP is to be constructed and all other places where vessels can experience trouble due to rough weather. This issue is not relevant to the rule and will not be discussed. In consideration of this comment, the Coast Guard has made no substantial changes to the provisions of this rule.

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

The impacts on routine navigation are expected to be minimal because the safety zone will not overlap any of the safety fairways within the Gulf of Mexico.

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. Since the construction site for the Matterhorn TLP is located far offshore, few privately owned fishing vessels and recreational boats/yachts operate in the area and alternate routes are available for those vessels. Use of an alternate route may cause a vessel to incur a delay of 4 to 10 minutes in arriving at their destinations depending on how fast the vessel is traveling. Therefore, the Coast Guard expects the impact of this regulation on small entities to be minimal.

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

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding this rule so they can better evaluate its effects on them and participate in the rulemaking.

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 discuss the effects of this rule elsewhere in this preamble.

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

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

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

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

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

We have analyzed this rule under Commandant Instruction M16475.1D, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of 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 because this rule is not expected to result in any significant environmental impact as described in NEPA. Paragraph (34)(g) is applicable because this rule is establishing a safety zone that will be effective for a period greater than one week. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” (CED) are available in the docket where indicated under ADDRESSES.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a NPRM. Additionally, 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 as the schedule and other logistical details were not known until a date fewer than 30 days prior to the start date of the military operation. Publishing a NPRM and delaying its effective date would be contrary to the public interest since the safety and security of the people, ports, waterways, and properties of the Port Chicago and Suisun Bay areas would be jeopardized without the protection afforded by this security zone. Any delay in implementing this rule would be contrary to the public interest since immediate action is necessary to ensure the protection of all cargo vessels, their crews, the public and national security.

Since the September 11, 2001 terrorist attacks on the World Trade Center in New York, the Pentagon in Arlington, Virginia and Flight 93, the Federal Bureau of Investigation (FBI) has issued several warnings concerning the potential for additional terrorist attacks within the United States. In addition, the ongoing hostilities in Afghanistan and the conflict in Iraq have made it prudent for U.S. ports to be on a higher state of alert because Al-Qaeda and other organizations have declared an ongoing intention to conduct armed attacks on U.S. interests worldwide.

The threat of maritime attacks is real as evidenced by the October 2002 attack of a tank vessel off the coast of Yemen and the continuing threat to U.S. assets as described in the President's finding in Executive Order 13273 of August 21, 2002 (67 FR 56215, September 3, 2002) that the security of the U.S. is endangered as evidenced by the September, 11, 2001 attacks and that such disturbances continue to endanger the international relations of the United States. See also Continuation of the National Emergency With Respect to Certain Terrorist Attacks, (67 FR 58317, September 13, 2002); Continuation of the National Emergency With Respect To Persons Who Commit, Threaten To Commit, or Support Terrorism, (67 FR 59447, September 20, 2002). Additionally, a Maritime Advisory was issued to: Operators of U.S. Flag and Effective U.S. controlled Vessels and other Maritime Interests, detailing the current threat of attack, MARAD 02-07 (October 10, 2002).

In its effort to thwart terrorist activity, the Coast Guard has increased safety and security measures on U.S. ports and waterways. As part of the Diplomatic Security and Antiterrorism Act of 1986 (Pub. L. 99-399), Congress amended section 7 of the Ports and Waterways Safety Act (PWSA), 33 U.S.C. 1226, to allow the Coast Guard to take actions, including the establishment of security and safety zones, to prevent or respond to acts of terrorism against individuals, vessels, or public or commercial structures. The Coast Guard also has authority to establish security zones pursuant to the Act of June 15, 1917, as amended by the Magnuson Act of August 9, 1950 (50 U.S.C. 191 et seq. ) and implementing regulations promulgated by the President in subparts 6.01 and 6.04 of part 6 of title 33 of the Code of Federal Regulations.

In this particular rulemaking, to address the aforementioned security concerns, United States Army officials have requested that the Captain of the Port, San Francisco Bay, California, establish a temporary security zone in the navigable waters of the United States surrounding the Military Ocean Terminal Concord (MOTCO), California, to safeguard vessels, cargo and crew engaged in military operations. This temporary security zone is necessary to safeguard the MOTCO terminal and the surrounding property from sabotage or other subversive acts, accidents or criminal acts. This zone is also necessary to protect military operations from compromise and interference and to specifically protect the people, ports, waterways, and properties of the Port Chicago and Suisun Bay areas.

In this temporary rule, the Coast Guard is establishing a fixed security zone around Military Ocean Terminal Concord (MOTCO), California, encompassing the navigable waters, extending from the surface to the sea floor, bounded by the following coordinates: latitude 38°03′07″ N and longitude 122°03′00″ W; thence to latitude 38°03′15″ N and longitude 122°03′04″ W; thence to latitude 38°03′30″ N and longitude 122°02′35″ W; thence to latitude 38°03′50″ N and longitude 122°01′15″ W; thence to latitude 38°03′43″ N and longitude 122°00′28″ W; thence to latitude 38°03′41″ N and longitude 122°00′03″ W; thence to latitude 38°03′18″ N and longitude 121°59′31″ W, and along the shoreline back to the beginning point.

Vessels or persons violating this section will be subject to the penalties set forth in 33 U.S.C. 1232 and 50 U.S.C. 192. Pursuant to 33 U.S.C. 1232, any violation of the security zone described herein, is punishable by civil penalties (not to exceed $27,500 per violation, where each day of a continuing violation is a separate violation), criminal penalties (imprisonment up to 6 years and a maximum fine of $250,000), and in rem liability against the offending vessel. Any person who violates this section using a dangerous weapon, or who engages in conduct that causes bodily injury or fear of imminent bodily injury to any officer authorized to enforce this regulation, will also face imprisonment up to 12 years. Vessels or persons violating this section are also subject to the penalties set forth in 50 U.S.C. 192: seizure and forfeiture of the vessel to the United States, a maximum criminal fine of $10,000, and imprisonment up to 10 years, and a civil penalty of not more than $25,000 for each day of a continuing violation.

The Captain of the Port will enforce this zone and may enlist the aid and cooperation of any Federal, State, county, municipal, and private agency to assist in the enforcement of the regulation. This regulation is established under the authority of 33 U.S.C. 1226 in addition to the authority contained in 50 U.S.C. 191 and 33 U.S.C. 1231.

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

Although this regulation restricts access to portions of navigable waters, the effect of this regulation will not be significant because the zone will encompass only a small portion of the waterway for a short duration. Vessels and persons may be allowed to enter these zones on a case-by-case basis with permission of the Captain of the Port or his designated representative.

The size of the zone is the minimum necessary to provide adequate protection for MOTCO, vessels engaged in operations at MOTCO, their crews, other vessels operating in the vicinity, and the public. The entities most likely to be affected are commercial vessels transiting to or from Suisun Bay via the Port Chicago Reach section of the channel.

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 and operators of vessels intending to anchor or transit to or from Suisun Bay via the Port Chicago Reach section of the channel. Although the security zone will occupy a section of the navigable channel (Port Chicago Reach) adjacent to the Marine Ocean Terminal Concord (MOTCO), vessels may receive authorization to transit through the zone by the Captain of the Port or his designated representative on a case-by-case basis. Additionally, vessels engaged in recreational activities, sightseeing and commercial fishing will have ample space outside of the security zone to engage in these activities. Small entities and the maritime public will be advised of this security zone via public notice to mariners.

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 the rule so that they could better evaluate its effects on them and participate in the rulemaking process. If the rule will affect your small business, organization, or government jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed under FOR FURTHER INFORMATION CONTACT for assistance in understanding this rule.

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

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

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

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

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

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

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

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

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

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 because we are establishing a security zone.

A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” are available in the docket where located under ADDRESSES.

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

Table 1 lists the rules we are approving with the date that they were adopted by the local air agency and submitted by the California Air Resources Board (CARB).

On January 15, 2002 and February 7, 2003, respectively, these submittals were found to meet the completeness criteria in 40 CFR part 51, appendix V, which must be met before formal EPA review.

EPA proposed a limited approval and limited disapproval on May 5, 1999 (64 FR 24117) of Rule 232, Biomass Boilers (adopted on October 18, 1994, submitted on October 20, 1994). The proposed action was not finalized, but the deficiency cited concerning the lack of a compliance schedule is addressed in this current direct final action. The EDCAPCD also amended the October 18, 1994 version on January 23, 2001 and CARB submitted it to us on May 23, 2001. No action was taken on this submittal. While we can act on only the most recent submittal, we reviewed the information in this previous submittal.

NO X helps produce ground-level ozone, smog and particulate matter, which harm human health and the environment. Section 110(a) of the CAA requires states to submit regulations that control NO X emissions.

The purpose of the revisions to EDCAPCD Rule 232 is to remedy a deficiency in the October 18, 1994 version of the rule.

The purpose of submitted SBCAPCD Rule 360 is to regulate NO X emissions from large water heaters and small boilers.

Generally, SIP rules must be enforceable ( see section 110(a) of the CAA), must require Reasonably Available Control Technology (RACT) for major sources of NO X in ozone nonattainment areas ( see section 182(f)) and must not relax existing requirements ( see sections 110(l) and 193). The EDCAPCD regulates a severe ozone nonattainment area. See 40 CFR part 81. Rule 232 must fulfill the requirements of RACT. The SBCAPCD regulates an ozone maintenance attainment area. Rule 360 must fulfill the requirements of RACT.

Guidance and policy documents that we used to define specific enforceability and RACT requirements include the following:

• Requirements for Preparation, Adoption, and Submittal of Implementation Plans, U.S. EPA, 40 CFR part 51.

• Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations, EPA (May 25, 1988) (the Bluebook).

• State Implementation Plans; Nitrogen Oxides Supplement to the General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990 (the “NO X Supplement to the General Preamble”), U.S. EPA, 57 FR 55620 (November 25, 1992).

• Cost-Effective Nitrogen Oxides (NO X ) Reasonably Available Control Technology (RACT), U.S. EPA Office of Air Quality Planning and Standards (March 16, 1994).

• Guidance Document for Correcting Common VOC & Other Rule Deficiencies, U.S. EPA Region IX (August 21, 2001) (the Little Bluebook).

• Determination of Reasonably Available Control Technology (RACT) and Best Available Retrofit Control Technology (BARCT) for Industrial, Institutional, and Commercial Boilers, Steam Generators, and Process Heaters, California Air Resources Board (CARB) (July 18, 1991).

• Alternative Control Techniques Document—NO X Emissions from Utility Boilers, EPA-453/R-94-023 (March 1994).

We believe these rules are consistent with the relevant policy and guidance regarding enforceability, RACT, and SIP relaxations. We also believe that Rule 232 corrects the previously identified deficiency regarding the lack of a compliance schedule in the rule. The TSDs have more information on our evaluation.

As authorized in section 110(k)(3) of the CAA, EPA is fully approving the submitted rules because we believe they fulfill all relevant requirements. We do not think anyone will object to this, so we are finalizing the approval without proposing it in advance. However, in the Proposed Rules section of this Federal Register , we are simultaneously proposing approval of the same submitted rules. If we receive adverse comments by November 13, 2003, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on December 15, 2003. This will incorporate these rules into the federally-enforceable SIP.

Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

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

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

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

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . 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 December 15, 2003. 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).)

EPA is approving a source-specific SIP revision to the Kentucky SIP, submitted by the Commonwealth of Kentucky on October 7, 2001, which requires MAPMRT to implement vapor collection and control equipment with an overall efficiency of at least 90 percent for its barge cleaning operation. This revision satisfies a requirement for Kentucky to implement a contingency measure for the Huntington-Ashland 1-Hour Ozone Maintenance Area and meets EPA's VOC RACT requirements for major VOC sources. The Huntington-Ashland 1-Hour Ozone Maintenance Area consists of: Boyd County and a portion of Greenup County, Kentucky; and Cabell County and Wayne County, West Virginia. MAPMRT is located in Boyd County, Kentucky, within the maintenance area. MAPMRT is a major VOC point source because the source's barge cleaning operation has the potential to emit more than 100 tons per year of VOC.

During calendar year 1998, a Huntington, West Virginia ozone monitor recorded five exceedances of the 1-hour ozone National Ambient Air Quality Standard (NAAQS) during a period when the 1-hour NAAQS was revoked by EPA. The 1-hour ozone maintenance plan for the Kentucky portion of the Huntington-Ashland maintenance area requires Kentucky to adopt one or more contingency measures within six months of a monitored violation. This six-month time period is not applicable in this case, since the initial violation occurred in 1998, during a time period in which EPA had revoked the 1-hour ozone NAAQS. Upon reinstatement of the 1-hour NAAQS, effective October 18, 2000, EPA required violating maintenance areas to expeditiously provide plans to implement their maintenance plans to address any violations. Kentucky is fulfilling the latter requirement. A June 28, 2001, letter from the Commonwealth officially notified EPA of its implementation of an ozone contingency measure in the Kentucky portion of the Huntington-Ashland maintenance area. Currently, the area is attaining the 1-hour ozone NAAQS.

Kentucky utilized the contingency measure listed in the area's maintenance plan to implement “a program to make existing controls on stationary sources more effective, or require additional emission reductions.” Because VOC emissions from MAPMRT's barge cleaning operations were significant, MAPMRT was selected as a source where additional emission reductions may be realized. Based on year 2000 emissions data, the barge cleaning operations represent an estimated 87 percent of the source's total VOC emissions. The title V permit for MAPMRT requires the overall efficiency for capture and control of VOC emissions from barge cleaning operations to be at least 90 percent to satisfy Kentucky rule 401 KAR 50:012, “General application”. This rule requires RACT for major VOC sources in Kentucky counties designated ozone nonattainment with the exception of marginal areas. Although the Kentucky portion of the Huntington-Ashland area is classified attainment for the 1-hour ozone NAAQS, Kentucky elected as a contingency measure to require VOC RACT for MAPMRT's barge cleaning operations. Since no EPA Control Technique Guideline (CTG) exists for this source category, Kentucky must submit the controls as a source-specific non-CTG RACT SIP revision to ensure that these controls meet RACT and are adequately enforceable.

Earlier than required, MAPMRT installed and is operating a vapor collection and control system for its barge cleaning operations with an overall efficiency of 90 percent. The control system will reduce the source's emissons by an estimated 0.76 tons per day and reduce VOC point source emissions for the area by an estimated 2.78 percent. MAPMRT's Barge Cleaning VOC Control Plan, required as part of its title V permit, describes its Barge Degassing Vapor Control System. This control system is consistent with those controls used at similar operations in the country ( i.e. , Louisiana and Texas). The system uses thermal oxidation to combust vapors from the barge. The combustion products are used to produce hot water (or steam) and inert gas, which are used for input back into the system for greater combustion efficiency and into the barge for enhanced safety. EPA and Kentucky believe the system satisfies EPA's RACT requirement for major VOC sources.

The EPA is approving this source-specific revision to the Kentucky SIP requiring VOC RACT for MAPMRT because it is consistent with the requirements of the Clean Air Act and EPA policy.

The EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective December 15, 2003 without further notice unless the Agency receives adverse comments by November 13, 2003.

If the EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on December 15, 2003 and no further action will be taken on the proposed rule.

1. The Regional Office has established an official public rulemaking file available for inspection at the Regional Office. EPA has established an official public rulemaking file for this action under KY-135-200337. The official public file consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public rulemaking file does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public rulemaking file is the collection of materials that is available for public viewing at the Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the contact listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 9 to 3:30, excluding Federal holidays.

2. Copies of the State submittal and EPA's technical support document are also available for public inspection during normal business hours, by appointment at the State Air Agency. Commonwealth of Kentucky, Division for Air Quality, 803 Schenkel Lane, Frankfort, Kentucky 40601-1403. (502/573-3382).

3. Electronic Access. You may access this Federal Register document electronically through the Regulation.gov Web site located at http://www.regulations.gov where you can find, review, and submit comments on Federal rules that have been published in the Federal Register , the Government's legal newspaper, and are open for comment.

For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing at the EPA Regional Office, as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in the official public rulemaking file. The entire printed comment, including the copyrighted material, will be available at the Regional Office for public inspection.

You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate rulemaking identification number by including the text “Public comment on proposed rulemaking KY-135-200337” in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.

1. Electronically. If you submit an electronic comment as prescribed below, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment. Also include this contact information on the outside of any disk or CD-ROM you submit, and in any cover letter accompanying the disk or CD-ROM. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

i. E-mail. Comments may be sent by electronic mail (e-mail) to notarianni.michele@epa.gov. Please include the text “Public comment on proposed rulemaking KY-135-200337” in the subject line. EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly without going through Regulations.gov, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket.

ii. Regulation.gov. Your use of Regulation.gov is an alternative method of submitting electronic comments to EPA. Go directly to Regulations.gov at http://www.regulations.gov, then select Environmental Protection Agency at the top of the page and use the go button. The list of current EPA actions available for comment will be listed. Please follow the online instructions for submitting comments. The system is an “anonymous access” system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment.

iii. Disk or CD-ROM. You may submit comments on a disk or CD-ROM that you mail to the mailing address identified in Section 2, directly below. These electronic submissions will be accepted in WordPerfect, Word or ASCII file format. Avoid the use of special characters and any form of encryption.

2. By Mail. Send your comments to: Michele Notarianni, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Please include the text “Public comment on proposed rulemaking KY-135-200337.” in the subject line on the first page of your comment.

3. By Hand Delivery or Courier. Deliver your comments to: Michele Notarianni, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division 12th floor, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 9 to 3:30, excluding Federal holidays.

Do not submit information that you consider to be CBI electronically to EPA. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD-ROM, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR Part 2.

In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the official public regional rulemaking file. If you submit the copy that does not contain CBI on disk or CD-ROM, mark the outside of the disk or CD-ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public file and available for public inspection without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified in the FOR FURTHER INFORMATION CONTACT section.

You may find the following suggestions helpful for preparing your comments:

1. Explain your views as clearly as possible.

2. Describe any assumptions that you used.

3. Provide any technical information and/or data you used that support your views.

4. If you estimate potential burden or costs, explain how you arrived at your estimate.

5. Provide specific examples to illustrate your concerns.

6. Offer alternatives.

7. Make sure to submit your comments by the comment period deadline identified.

8. To ensure proper receipt by EPA, identify the appropriate regional file/rulemaking identification number in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and Federal Register citation related to your comments.

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

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

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

The Congressional Review Act, 5 U.S.C. section 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. section 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 December 15, 2003. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

The interim final rule published on March 8, 2002, at 67 FR 10631 amended 44 CFR 59.30 and Appendices (A)(4), (A)(5), and (A)( 6) of 44 CFR part 61 to clarify that areas of Monroe County, Florida that incorporate on or after January 1, 1999, and become eligible for the sale of flood insurance must participate in the inspection procedure as a condition of participating in the NFIP. An inspection procedure was established to help the communities of Monroe County and the Village of Islamorada verify that structures comply with the community's floodplain management ordinance and to ensure that property owners pay flood insurance premiums to the NFIP commensurate with their flood risk.

The closing date for the submission of comments was June 6, 2002.

By the close of the comment period, FEMA received no comments on the interim final rule.

Accordingly, the interim final rule to amend the NFIP regulations to clarify that areas of Monroe County, Florida that incorporate on or after January 1, 1999, and become eligible for the sale of flood insurance must participate in the inspection procedures as a condition of joining the NFIP which was published at 67 FR 10631 on March 8, 2002, is adopted as a final rule without change.

FEMA conducted an environmental review on the inspection procedure. You may obtain a copy of the Record of Environmental Review documenting the findings through FEMA's Web site at www.FEMA.gov, or by writing to FEMA at 500 C Street, SW., Washington, DC 20472, Attention: Lois Forster.

FEMA reviewed the inspection procedure under Executive Order 12898 and determined that the inspection procedure would not have a disproportionate adverse impact on low-income populations and minority populations. FEMA also determined that this action would have some adverse effects on low-income populations because some illegal enclosures are used as full-living units and the residents would have to find replacement housing. The effect would be caused by the residents' illegal activity, not by this regulatory action. FEMA determined, further, that there would be greater adverse health and safety impact on the affected low-income populations if they stayed in these illegally built ground level enclosures. The enclosures are located in flood hazard areas below the Base Flood Elevation where there is a significant risk of flooding.

FEMA has reviewed the inspection procedure under the provisions of Executive Order 12866, Regulatory Planning and Review. Under Executive Order 12866, 58 FR 51735, Oct. 4, 1993, a significant regulatory action is subject to the Office of Management and Budget (OMB) review and the requirements of the Executive Order. The Executive 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 th[e] Executive [O]rder.

FEMA found that the final rule is neither a significant regulatory action nor an economically significant rule under the Executive Order. OMB has not reviewed this rule under the principles of Executive Order 12866.

Executive Order 13132, Federalism, seeks to ensure that Executive agencies consider principles of federalism when developing new policies, and requires them to consult with State and local officials when their actions may have federalism implications.

FEMA reviewed this final rule for federalism implications under Executive Order 13132 and determined that this final rule does not have federalism implications as defined in Executive Order 13132.

In addition to Monroe County, the Village of Islamorada, and the State of Florida, FEMA has consulted with the City of Marathon and will continue to consult and coordinate with the City of Marathon and any other area in Monroe County that incorporates and becomes eligible for the sale of flood insurance after January 1, 1999, that will participate in the inspection procedure.

FEMA submitted the information collection requirements to OMB for approval under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Under Control Number 3067-0275, OMB approved the information collection requirements. Now that FEMA is part of DHS, the Control Number is 1660-0045.

This final rule meets the applicable standards of subsections 2(a) and 2(b)(2) of Executive Order 12778.

The interim final rule published on March 8, 2002 at 67 FR 10631 is adopted as final without change.

The Commission published a document in the Federal Register of August 27, 2003 (68 FR 51499), adopting §§ 25.137(d)(4), 25.164(c) through (e), and 25.165, and adopting an effective date of September 11, 2003 for these provisions. This document stays these provisions until October 27, 2003.

This is a summary of the Commission's Report and Order in IB Docket No. 02-19, FCC 03-137, adopted June 18, 2003 and released July 9, 2003. The complete text of this Report and Order is available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone (202) 863-2893, facsimile (202) 863-2898 or via e-mail qualexint@aol.com. It is also available on the Commission's Web site at http://www.fcc.gov .

1. The Federal Communications Commission has adopted sharing and service rules for the non-geostationary satellite orbit, fixed satellite service (NGSO FSS) in the Ka-Band frequencies. These systems will provide a variety of data, video and telephone services to U.S. consumers, for communications in the United States and around the world.

2. The Commission adopted an innovative sharing technique that can accommodate all pending applications for this service in the available frequency bands. The Commission calls this technique avoidance of in-line interference events. Under this technique, each applicant, once licensed, will be authorized to operate its system in the entire available service spectrum, so long as it avoids causing harmful interference to other NGSO FSS systems.

3. The Commission anticipates that there will be predictable instances when the space station of one NGSO FSS system and the earth station of another system are arrange in a perfect line of communication, an occurrence called an in-line interference event. The sharing technique allows and encourages the two system operators to exchange space station orbit data in order to predict and avoid these events by any mitigation means preferred. In the event the systems cannot agree on a preferred avoidance method, the Commission requires that the split the available NGSO FSS service spectrum in the Ka-Band equally between the systems involved in the event, for the duration of the event. The Report and Order allows the first launched NGSO FSS system to choose its preferred equal portion of the spectrum to which its space station will resort when an in-line interference event arises.

4. The Report and Order adopts a technical definition of an in-line interference event so that systems can coordinate their orbits in advance. The Commission adopted an Earth-surface based (topocentric) angular separation standard, with a 10-degree-avoidance angle between satellites of different networks.

5. The Report and Order determines the priority status of the one existing licensee from the first processing round of the Ka-Band NGSO FSS, Teledesic LLC, when it coordinates with operators licensed in this second processing round for the service.

6. The Report and Order adopted service rules for the NGSO FSS service, including an implementation milestones schedule. Licensees will be required to file an annual report describing the status of satellite construction and launch dates. The Report and Order also requires that applicants disclose orbital debris mitigation plans before licensing.

8. The Regulatory Flexibility Act of 1980, as amended (RFA), 1 requires that a regulatory flexibility analysis be prepared for notice and comment rulemaking proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.”  2 The RFA generally defines “small entity” as having the same meaning as the terms “small business,” “smallorganization,” and “small governmental jurisdiction.”  3 In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. 4 A small business concern is one which: (a) is independently owned and operated; (b) is not dominant in its field of operation; and (c) satisfies any additional criteria established by the Small Business Administration (SBA). 5

9. The objective of the Report and Order and of this proceeding is to assign the NGSO FSS spectrum to satellite systems operators who can implement their proposals in a manner that serves the public interest. The final rules in the Report and Order will reduce regulatory burdens and, with minimal disruption to existing FCC permittees and licensees, result in the continued development of NGSO FSS and other satellite services to the public.

10. Neither the Commission nor the U.S. Small Business Administration has developed a small business size standard specifically for NGSO FSS licensees. The appropriate size standard is therefore the SBA standard for Satellite Telecommunications, which provides that such entities are small if they have $12.5 million or less in annual revenues. 6

11. The rules adopted in the Report and Order apply only to entities providing NGSO FSS. Small businesses will not have the financial ability to become NGSO FSS system operators because of the high implementation costs, including construction of satellite space stations and rocket launch, associated with satellite systems and services. 7 Since the spectrum and orbital resources available for assignment are not open to new entrants, we estimate that only the four applicants whose applications are pending will be authorized by the Commission to provide these services. None of the seven applicants is a small business because each has revenues in excess of $12.5 million annually or has parent companies or investors that have revenues in excess of $12.5 million annually. 8

12. Therefore, we certify that the rules adopted in this Report and Order will not have a significant economic impact on a substantial number of small entities. The Commission will send a copy of this Report and Order , including this Final Regulatory Flexibility, in a report to Congress pursuant to the Congressional Review Act. 9 In addition, the Report and Order and this final certification will be sent to the Chief Counsel for Advocacy of the Small Business Administration, and will be published in the Federal Register . 10

13. Pursuant to Sections 4(i), 7(a), 303(c), 303(f), 303(g), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. Sections 154(i), 157(a), 303(c), 303(f), 303(g), and 303(r), this Report and Order is hereby ADOPTED.

14. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, SHALL SEND a copy of the Report and Order , including the Final Regulatory Flexibility Certification, in a report to Congress pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A); and shall also send a copy of this Report and Order , including the Final Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business Administration. See 5 U.S.C. 605(b). A copy of this Report and Order , including the Final Regulatory Flexibility Certification, will be published in the Federal Register . See 5 U.S.C. 605(b).

This is a summary of the Commission's Order, adopted September 26, 2003, and released October 3, 2003. Copies of any subsequently filed documents in this matter will be available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The complete text of this decision also ma5y be purchased from the Commission's duplicating contractor Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone (202) 863-2893, facsimile (202) 863-2898, or via e-mail qualexint@aol.com. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at (202) 418-0531 (voice), (202) 418-7365 (TTY).

In this Order, the Commission now temporarily stays, for an interim period, the limitations imposed in § 64.1200 (f)(3) on the duration of an “established business relationship” as it applies to the sending of unsolicited facsimile advertisements. During this interim period, the established business relationship, as applied to unsolicited facsimile advertisements, will not expire after 18 months of the recipient's last purchase or transaction or three months after the last application or inquiry. Given that the Commission's adoption of the modified established business relationship definition in the Report and Order, FCC 03-153, published at 68 FR 44144 (July 25, 2003), and Announcement of effective date published at 68 FR 56764 (October 1, 2003), was limited to its application to telephone solicitations, the Commission believes that good cause exists to stay application of the time limitations imposed on the established business relationship in the context of facsimile advertisements until the Commission conducts a review on reconsideration. The Commission emphasizes that nothing in this Order impacts the conclusion in the Order on Reconsideration, FCC 03-208; published at 68 FR 50978, August 25, 2003, that an established business relationship constitutes sufficient permission to send a facsimile advertisement until January 1, 2005.

The Commission notes, however, that in the absence of any Commission action on this issue prior to January 1, 2005, the Commission's determination that an established business relationship will no longer be sufficient to show that an individual or business has given express permission to receive unsolicited facsimile advertisements will go into effect as required by the Order on Reconsideration.

The actions contained herein have not changed our Final Regulatory Flexibility Analysis (FRFA), which is set forth in the Report and Order. Thus, no supplemental FRFA is necessary. In addition, the action contained herein imposes no new or modified reporting and/or recordkeeping requirements or burdens on the public.

Pursuant to sections 1-4, 227, and 303(r) of the Communications Act Of 1934, as amended, 47 U.S.C. 151-154, 227, and 303 (r); and section 1.429 of the Commission's Rules, 47 CFR 1.429, this Order in CG Docket No. 02-278 is adopted as set forth herein.

This Order is effective upon publication in the Federal Register . In light of the fact that this Order imposes no new obligations, the Commission find good cause, pursuant to 5 U.S.C. 553(d), to make this Order effective on less than thirty days' notice.

This is a summary of the Commission's Order, ET Docket No. 95-18, DA 03-2838, adopted September 4, 2003, and released September 5, 2003. The full text of this document is available for inspection and copying during regular business hours in the FCC Reference Center (Room CY-A257), 445 12th Street, SW., Washington, DC 20554. The complete text of this document also may be purchased from the Commission's copy contractor, Qualex International, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. The full text may also be downloaded at: www.fcc.gov . Alternative formats are available to persons with disabilities by contacting Brian Millin at (202) 418-7426 or TTY (202) 418-7365.

1. The Order effectively immediately suspends, for 60 days, until November 4, 2003, the expiration date for the initial two-year mandatory negotiation period for Phase 1 of the 2 GHz band relocation plan between Mobile-Satellite Service (MSS) and Broadcast Auxiliary Service (BAS). This mandatory negotiation period was originally adopted in the Second Report and Order and Second Memorandum Opinion and Order (Second Report and Order) , 65 FR 48174, August 7, 2000, in this proceeding, and later extended until September 6, 2003, in a subsequent Order (Suspension Order) , 67 FR 53755, August 19, 2002. The mandatory negotiation period will continue to remain in effect for the duration of this suspension or until otherwise modified by Commission action. We retain the option to shorten or lengthen this suspension as circumstances warrant.

2. This action only relates to 35 megahertz of spectrum, currently used by BAS licensees, in the 1990-2025 MHz band. In 1997, the Commission reallocated this spectrum, paired with 35 megahertz in the 2165-2200 MHz band used by Fixed Service (FS) licensees, for MSS, effective January 1, 2000. In the Second Report and Order , it adopted relocation procedures for incumbent licensees in these bands. The relocation plan was modeled after the Commission's earlier Emerging Technologies policies in ET Docket No. 92-9, and requires MSS entrants to provide comparable facilities to BAS and FS incumbents that are relocated prior to specified sunset dates. The BAS relocation plan calls for a two-phase relocation, each phase beginning with a two-year mandatory negotiation period. In the event that an agreement for relocation is not reached by the end of a particular negotiation period, the MSS licensee(s) have the option of relocating BAS incumbents involuntarily. The initial, two-year mandatory negotiation period for Phase 1 commenced upon Federal Register publication of the Second Report and Order on September 6, 2000, and was due to expire on September 6, 2002. The Suspension Order extended this date by one year, to September 6, 2003.

3. Recently, the Commission adopted decisions that will permit alternative uses and new allocations in portions of the 2 GHz band that had been allocated for MSS. In a Third Report and Order, Third Notice of Proposed Rulemaking, and Second Memorandum Opinion and Order, 68 FR 11987, March 13, 2003, in ET Docket No. 00-258, it reallocated a portion of this spectrum in order to provide for new Fixed and Mobile services, including Advanced Wireless Services (AWS). In a Report and Order and Notice of Proposed Rulemaking in IB Docket No. 01-185, it permitted MSS licensees to provide ancillary terrestrial component (ATC) operations in the 2 GHz MSS band. The Commission has not yet adopted any modifications to the existing BAS and FS relocation rules as may be necessary in light of these decisions.

4. In the Suspension Order, the Commission noted the outstanding issues in the MSS Flexibility Notice and AWS Notice proceedings relating to use of the 2 GHz MSS band and concluded that it did not appear that it would be able to act on the respective issues prior to the Phase 1 BAS mandatory negotiation deadline of September 6, 2002. It concluded that it was in the public interest to continue the negotiating period until we were able to address these relocation issues. It also found that it was prudent and in the public interest to suspend the expiration of the initial negotiation period for one year under those circumstances, rather than prejudice consideration of the relocation issues presented in the pending proceedings. The Commission further stated that it retained the option to shorten or lengthen this suspension as circumstances warranted.

5. In February of this year, the Commission decided to reallocate portions of the 2 GHz MSS band (in ET Docket No. 00-258) and modify the nature of permissible MSS use of the band (in IB Docket No. 01-185). However, it has not yet addressed the modifications to the BAS and FS relocation plan that may be necessary because of these decisions and several outstanding Petitions for Reconsideration and Clarification. Accordingly, the considerations that led the Commission to adopt the Suspension Order continue to apply with respect to the scheduled September 6, 2003, expiration date for the initial Phase 1 mandatory BAS negotiation period. Specifically, we find that it is in the public interest to continue the negotiating period until we address outstanding relocation issues in the band. Also, by suspending the expiration of the initial negotiation period, we will not prejudice consideration of the relocation issues still pending. For these reasons, we suspend, effective immediately upon release of this order, expiration of the initial Phase 1, two-year mandatory BAS negotiation period for 60 days, until November 4, 2003.

6. As in the Suspension Order, we retain the option to shorten or lengthen this suspension as circumstances warrant. We also emphasize that the action taken herein is interim in nature and does not prejudice further action in other proceedings. For the duration of this suspension, all other aspects of the initial mandatory BAS negotiation period will continue in force and, as a consequence, BAS incumbents will not be subject to involuntary relocation by MSS licensees. For the duration of the suspension, we likewise require MSS and BAS licensees to comply with all negotiation requirements and procedures adopted in the Second Report and Order that are applicable to the initial BAS mandatory negotiation period.

7. Authority for issuance of this Order is contained in sections 4(i), 5(c), 303(f), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 155(c), 303(f), and 303(r), and Section 553(d) of the Administrative Procedure Act, 5 U.S.C. 553(d). This action is taken under delegated authority, pursuant to sections 0.31(m) and 0.241(a) of the Commission's Rules, 47 CFR 0.31(m) and 0.241(a).

8. Pursuant to sections 4(i), 303(f), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(f), and 303(r), Section 553(d) of the Administrative Procedure Act, 5 U.S.C. 553(d), and sections 0.31(m) and 0.241(a) of the Commission's Rules, 47 CFR 0.31(m) and 0.241(a), the expiration date of September 6, 2002, for the initial two-year mandatory BAS negotiation period for Phase 1 set forth in the Second Report and Order in ET Docket No. 95-18 is hereby suspended, effective immediately upon release of this order, for 60 days until November 4, 2003.

Pursuant to 49 U.S.C. 33112, Insurer reports and information, NHTSA requires certain passenger motor vehicle insurers to file an annual report with the agency. Each insurer's report includes information about thefts and recoveries of motor vehicles, the rating rules used by the insurer to establish premiums for comprehensive coverage, the actions taken by the insurer to reduce such premiums, and the actions taken by the insurer to reduce or deter theft. Under the agency's regulation, 49 CFR part 544, the following insurers are subject to the reporting requirements: (1) Those issuers of motor vehicle insurance policies whose total premiums account for 1 percent or more of the total premiums of motor vehicle insurance issued within the United States; (2) those issuers of motor vehicle insurance policies whose premiums account for 10 percent or more of total premiums written within any one state; and (3) rental and leasing companies with a fleet of 20 or more vehicles not covered by theft insurance policies issued by insurers of motor vehicles, other than any governmental entity.

Pursuant to its statutory exemption authority, the agency exempted certain passenger motor vehicle insurers from the reporting requirements.

Section 33112(f)(2) provides that the agency shall exempt small insurers of passenger motor vehicles if NHTSA finds that such exemptions will not significantly affect the validity or usefulness of the information in the reports, either nationally or on a state-by-state basis. The term “small insurer” is defined, in section 33112(f)(1)(A) and (B), as an insurer whose premiums for motor vehicle insurance issued directly or through an affiliate, including pooling arrangements established under state law or regulation for the issuance of motor vehicle insurance, account for less than 1 percent of the total premiums for all forms of motor vehicle insurance issued by insurers within the United States. However, that section also stipulates that if an insurance company satisfies this definition of a “small insurer,” but accounts for 10 percent or more of the total premiums for all motor vehicle insurance issued in a particular state, the insurer must report about its operations in that state.

In the final rule establishing the insurer reports requirement (52 FR 59; January 2, 1987), 49 CFR part 544, NHTSA exercised its exemption authority by listing each insurer subject to the reporting requirements in Appendix A. Because the number of insurers subject to the reporting requirements is smaller than the number of insurers that fall under the 1% exemption, the agency chooses to publish the shorter list of insurers subject to the reporting requirements of 49 U.S.C. 33112. In Appendix B, NHTSA lists those insurers required to report for particular states because each insurer had a 10 percent or greater market share of motor vehicle premiums in those states. In the January 1987 final rule, the agency stated that it would update Appendices A and B annually. NHTSA updates the appendices based on data voluntarily provided by insurance companies to A.M. Best, 1 which A.M. Best publishes in its State/Line Report each spring. The agency uses the data to determine the insurers' market shares nationally and in each state.

In addition, upon making certain determinations, NHTSA grants exemptions to self-insurers, i.e. , any person who has a fleet of 20 or more motor vehicles (other than any governmental entity) used for rental or lease whose vehicles are not covered by theft insurance policies issued by insurers of passenger motor vehicles (see 49 U.S.C. 33112(b)(1)). Under 49 U.S.C. 33112(e)(1) and (2), NHTSA may exempt a self-insurer from reporting, if the agency determines:

(1) The cost of preparing and furnishing such reports is excessive in relation to the size of the business of the insurer; and

(2) The insurer's report will not significantly contribute to carrying out the purposes of Chapter 331.

In a final rule published June 22, 1990 (55 FR 25606), the agency granted a class exemption to all companies that rent or lease fewer than 50,000 vehicles, because it believed that the largest companies' reports sufficiently represent the theft experience of rental and leasing companies. NHTSA concluded that smaller rental and leasing companies' reports do not significantly contribute to carrying out NHTSA's statutory obligations and that exempting such companies will relieve an unnecessary burden on them. As a result of the June 1990 final rule, the agency added Appendix C, consisting of an annually updated list of the self-insurers subject to part 544. Following the same approach as in Appendix A, Appendix C contains only the self-insurers subject to reporting, instead of the self-insurers that are exempted. NHTSA updates Appendix C based primarily on information from Automotive Fleet Magazine and Business Travel News. 2

Under part 544, as long as an insurer is listed, it must file reports on or before October 25 of each year. Thus, any insurer listed in Appendices A, B or C must file a report by October 25, 2003, and by each succeeding October 25, absent an amendment removing the insurer's name from the appendices.

On March 21, 2003, NHTSA published a notice of proposed rulemaking (NPRM) to update the list of insurers in Appendices A, B, and C required to file reports (68 FR 13887). Appendix A lists insurers that must report because each had 1 percent of the motor vehicle insurance premiums on a national basis. The list was last amended in a final rule published on July 16, 2002 (67 FR 46608). Based on the 2000 calendar year data market shares from A.M. Best, we proposed to remove Farmers Insurance Group and St. Paul Companies from Appendix A and to add Zurich/Farmers Group to Appendix A.

Each of the 19 insurers listed in Appendix A is required to file a report by October 25, 2003, setting forth the information required by part 544, for each State in which it did business in the 2000 calendar year. As long as these 19 insurers remain listed, they are required to submit a report by each subsequent October 25, for the calendar year ending slightly less than 3 years before.

Appendix B lists insurers required to report for particular States for calendar year 2000, because each insurer had a 10 percent or greater market share of motor vehicle premiums in those States. Based on the 2000 calendar year data for market shares from A.M. Best, we proposed no changes to Appendix B.

The eight insurers listed in Appendix B are required to report on their calendar year 2000 activities in every State where they had a 10 percent or greater market share. These reports must be filed by October 25, 2003, and set forth the information required by part 544. As long as these eight insurers remain listed; they would be required to submit reports on or before each subsequent October 25 for the calendar year ending slightly less than 3 years before.

Appendix C lists rental and leasing companies required to file reports. Based on information in Automotive Fleet Magazine and Business Travel News for 2000, NHTSA proposed to remove Ford Rent-A-Car System from Appendix C and to add Thrifty Rental Car System Inc., and Ryder TRS to Appendix C. Each of the 18 companies (including franchisees and licensees) listed in Appendix C would be required to file reports for calendar year 2000 no later than October 25, 2003, and set forth the information required by part 544. As long as those 18 companies remain listed, they would be required to submit reports before each subsequent October 25 for the calendar year ending slightly less than 3 years before.

In the NPRM, the list of passenger motor vehicle insurers who are required to file theft loss reports contained the “Zurich/Farmers Group,” a newly listed insurance company. In response to the NPRM, we received two comments regarding the “Zurich/Farmers Group” listing. The first comment was submitted by Farmers Group, Inc. (Farmers), and the second comment was submitted by Zurich North America (Zurich).

Farmers argued that the listing should contain only “Farmers Insurance Group” instead of “Zurich/Farmers Group.” Farmers also stated that the “Zurich/Farmers Group” designation does not reflect the legal or economic reality of the relationship between the two separate insurance companies. Specifically, Farmers note that it is “comprised of reciprocal insurance exchanges (which are owned by their policyholders), or the wholly owned subsidiaries of those exchanges.” The only part of Farmers owned by Zurich is the management company for the exchanges, Farmer's Group, Inc. Besides owning this management company, Zurich also engages in providing passenger automobile insurance separately, and in competition with Farmers. According to Farmers, therefore, “Zurich/Farmers Group” is not an insurance company and does not own any of the subsidiary companies that write auto insurance.

Zurich similarly argued that the listing in question should contain “Farmers Insurance Group” instead of “Zurich/Farmers Group.” Specifically, Zurich described the structure of Farmers and reiterated that Zurich does not control the reciprocal insurance exchanges. Instead, Zurich owns only Farmers Group, Inc., which provides management services to all reciprocal exchanges. Zurich provides its own insurance services for passenger cars under the name of “Zurich North America.” Neither the reciprocal insurance exchanges, nor Farmers Group, Inc. are a part of Zurich North America. Further, Zurich has less than 1% market share for passenger car insurance, and therefore, should qualify for small insurer exception. Currently, Zurich estimates it's market share to be at 0.63%.

After reviewing both comments, the agency concluded that Farmers and Zurich are not a single insurance company, and should not be listed together as “Zurich/Farmers Group.” The agency agrees with both commenters' basic descriptions of their corporate structure. The agency also notes that while Zurich owns Farmers Group Inc. (which manages reciprocal exchanges), it also engages in providing their own insurance services through a separate entity that is separately licensed to provide insurance. In arriving at our decision, the agency consulted with an A.M. Best Co. insurance analyst familiar with Farmers and Zurich corporate structure, Stephan Holtzberger. 3 Mr. Holtzberger indicated support for our new position. Therefore, Appendix A will list “Farmers Insurance Group” instead of “Zurich Group/Farmers.” Zurich North America Insurance will not be listed in Appendix A because it falls short of the requisite 1% market share.

As a result of the new information received in response to the NPRM, this final rule revises the changes initially proposed to Appendix A. The agency received no comments in response to the NPRM for Appendices B and C. Accordingly, this final will reissue Appendix B without change and adopt the proposed changes to Appendix C.

Passenger motor vehicle insurers listed in the appendices can forward their theft loss reports to the agency in several ways:

a. Mail: Carlita Ballard, Office of Planning and Consumer Standards, NHTSA, NVS-131, 400 Seventh Street, SW., Washington, DC 20590;

b. E-mail: cballard@nhtsa.dot.gov; or

c. Fax: (202) 493-2290.

Theft loss reports may also be submitted to the docket electronically by:

d. Logging onto the Dockets Management System Web site at http://dms.dot.gov. Click on “ES Submit” or “Help” to obtain instructions for filing the document electronically.

This notice has not been reviewed under Executive Order 12866, Regulatory Planning and Review. NHTSA has considered the impact of this proposed rule and has determined that the action is not “significant” within the meaning of the Department of Transportation's regulatory policies and procedures. This rule implements the agency's policy of ensuring that all insurance companies that are statutorily eligible for exemption from the insurer reporting requirements are in fact exempted from those requirements. Only those companies that are not statutorily eligible for an exemption are required to file reports.

NHTSA does not believe that this rule, reflecting current data, affects the impacts described in the final regulatory evaluation prepared for the final rule establishing part 544 (52 FR 59; January 2, 1987). Accordingly, a separate regulatory evaluation has not been prepared for this rulemaking action. Using the Bureau of Labor Statistics Consumer Price Index for 2003 ( see http://www.bls.gov/cpi ), the cost estimates in the 1987 final regulatory evaluation were adjusted for inflation. The agency estimates that the cost of compliance is $86,100 for any insurer added to Appendix A, $34,440 for any insurer added to Appendix B, and $9,936 for any insurer added to Appendix C. In this final rule, for Appendix A, the agency will remove one company and add none; for Appendix B, the agency proposed no change; and for Appendix C, the agency removed one company and added two companies. The agency estimates that the net effect of this final rule would be a decrease of $76,164 to insurers as a group.

Interested persons may examine the 1987 final regulatory evaluation. Copies of that evaluation were placed in Docket No. T86-01; Notice 2. Any interested person may obtain a copy of this evaluation by writing to NHTSA, Docket Section, Room 5109, 400 Seventh Street, SW., Washington, DC 20590, or by calling (202) 366-4949.

The information collection requirements in this final rule were submitted and approved by the Office of Management and Budget (OMB) pursuant to the requirements of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ). This collection of information is assigned OMB Control Number 2127-0547 (“Insurer Reporting Requirements”) and approved for use through August 31, 2003, and the agency will seek to extend the approval afterwards.

The agency also considered the effects of this rulemaking under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ). I certify that this final rule will not have a significant economic impact on a substantial number of small entities. The rationale for the certification is that none of the companies proposed for Appendices A, B, or C is construed to be a small entity within the definition of the RFA. “Small insurer” is defined, in part under 49 U.S.C. 33112, as any insurer whose premiums for all forms of motor vehicle insurance account for less than one percent of the total premiums for all forms of motor vehicle insurance issued by insurers within the United States, or any insurer whose premiums within any State, account for less than 10 percent of the total premiums for all forms of motor vehicle insurance issued by insurers within the State. This notice would exempt all insurers meeting those criteria. Any insurer too large to meet those criteria is not a small entity. In addition, in this rulemaking, the agency proposes to exempt all “self insured rental and leasing companies” that have fleets of fewer than 50,000 vehicles. Any self-insured rental and leasing company too large to meet that criterion is not a small entity.

This action has been analyzed according to the principles and criteria contained in Executive Order 13132, and it has been determined that the final rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

In accordance with the National Environmental Policy Act, NHTSA has considered the environmental impacts of this final rule and determined that it would not have a significant impact on the quality of the human environment.

This final rule does not have any retroactive effect, and it does not preempt any State law. 49 U.S.C. 33117 provides that judicial review of this rule may be obtained pursuant to 49 U.S.C. 32909, and section 32909 does not require submission of a petition for reconsideration or other administrative proceedings before parties may file suit in court.

The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading, at the beginning, of this document to find this action in the Unified Agenda.

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:

• Have we organized the material to suit the public's needs?

• Are the requirements in the proposal clearly stated?

• Does the rule contain technical language or jargon that is not clear?

• Would a different format (grouping and order of sections, use of headings, paragraphing) make the rule easier to understand?

• Would more (but shorter) sections be better?

• Could we improve clarity by adding tables, lists, or diagrams?

• What else could we do to make the proposal easier to understand?

If you have any responses to these questions, you can forward them to me several ways:

a. Mail: Carlita Ballard, Office of Planning and Consumer Standards, NVS-131, NHTSA, 400 Seventh Street, SW., Washington, DC 20590;

b. E-mail: cballard@nhtsa.dot.gov ; or

c. Fax: (202) 493-2290.