Section 640 of the Treasury and General Government Appropriations Act, 2000, Pub. L. No. 106-58, 106th Cong., 113 Stat. 430, 476-77 (1999), amended 2 U.S.C. 437g(a)(4) to provide for a modified enforcement process for violations of certain reporting requirements. Under 2 U.S.C. 437g(a)(4)(C), the Commission may assess a civil monetary penalty for violations of the reporting requirements of 2 U.S.C. 434(a). This authority, however, terminated on December 31, 2003. See Pub. L. No. 107-67, 107th Cong., 640(c). Recently, section 639 of the 2004 Appropriations Act amended the Treasury and General Government Appropriations Act, 2000, by extending the sunset date to include all reports that cover activity between July 14, 2000 and December 31, 2005. Accordingly, the Commission is issuing this final rule to amend section 11 CFR 111.30 to renew the applicability of the administrative fines regulations, 11 CFR part 111, subpart B, to include all violations relating to reports that cover the period between July 14, 2000 and December 31, 2003 and the period between the date that this final rule is published in the Federal Register and December 31, 2005.

Until the 2004 Appropriations Act was enacted, the Commission did not have the authority to extend the AFP beyond December 31, 2003. Consequently, there is a gap in the applicability of the AFP from January 1, 2004 to February 10, 2004. All reports covering reporting periods that began and ended during this gap and that are due before February 11, 2004, the effective date of this final rule, are not subject to the AFP. This includes certain 48-hour reports and pre-election reports. These reports are, however, subject to the Commission's enforcement procedures set forth at 11 CFR subpart A. See 11 CFR 111.31(a).

The Commission notes that Congress, in extending the Commission's AFP authority, provided for continuous applicability of the AFP through December 31, 2005. Moreover, the AFP is procedural; the underlying substantive reporting requirements have remained continuously in effect. Consequently, it is appropriate to apply the AFP to reports that are due after February 10, 2004 even though those reports may relate to reporting periods that include the gap.

The Commission is promulgating this final rule without notice or an opportunity for comment because it falls under the “good cause” exemption of the Administrative Procedures Act, 5 U.S.C. 553(b)(3)(B). This exemption allows agencies to dispense with notice and comment if the procedures are “impracticable, unnecessary, or contrary to public interest.” Id. This final rule satisfies the “good cause” exemption because a notice and comment period is impracticable in that it would prevent this final rule from taking effect without an even larger gap in the applicability of the AFP. See Administrative Procedures Act: Legislative History , S. Doc. No. 248 200 (1946) (“ ‘Impracticable’ means a situation in which the due and required execution of the agency functions would be unavoidably prevented by its undertaking public rule-making proceedings”). In addition, this final rule merely extends the applicability of the AFP and does not change the substantive regulations themselves. Those regulations were already subject to notice and comment when they were proposed in March 2000, 65 FR 16534, and adopted in May 2000, 65 FR 31787, and again when substantive revisions to the AFP were proposed in April 2002, 67 FR 20461, and adopted in March 2003, 68 FR 12572. Thus, it is appropriate and necessary for the Commission to publish this final rule without providing a notice and comment period.

The Commission is making this final rule effective immediately upon publication in the Federal Register because it falls within the “good cause” exception to the thirty-day delayed effective date requirement set forth at section 553(d)(3) of the Administrative Procedures Act. See 5 U.S.C. 553(d)(3). The same reasons that justify the promulgation of this final rule without a notice and comment period, which are set forth above, also justify making this final rule effective without the thirty-day delay. Moreover, making this final rule effective immediately upon publication in the Federal Register is justified because a thirty-day delay of the effective date would increase the gap in the AFP.

The Commission is submitting this final rule to the Speaker of the House of Representatives and the President of the Senate pursuant to the Congressional Review of Agency Regulations Act, 5 U.S.C. 801(a)(1)(A), on February 6, 2004. Since this is a non-major rule, it is not subject to the delayed effective date provisions of 5 U.S.C. 801(a)(3).

The attached final rule will not have a significant impact on a substantial number of small entities. The basis for this certification is that this final rule merely extends the applicability of existing regulations for two more years. The existing regulations have already been certified as not having a significant economic impact on a substantial number of small entities. 65 FR 31793 (2000). Therefore, the extension of these existing regulations will not have a significant economic impact on a substantial number of small entities.

The FACT Act became law on December 4, 2003. Pub. L. 108-159, 117 Stat. 1952. In general, the Act amends the FCRA to enhance the ability of consumers to combat identity theft, to increase the accuracy of consumer reports, and to allow consumers to exercise greater control regarding the type and amount of marketing solicitations they receive. The FACT Act also restricts the use and disclosure of sensitive medical information. To bolster efforts to improve financial literacy among consumers, title V of the Act (entitled the “Financial Literacy and Education Improvement Act”) creates a new Financial Literacy and Education Commission empowered to take appropriate actions to improve the financial literacy and education programs, grants, and materials of the Federal government. Lastly, to promote increasingly efficient national credit markets, the FACT Act establishes uniform national standards in key areas of regulation.

The Act includes effective dates for many of its sections that vary to take account of the need for rulemaking, implementation efforts by industry, and other policy concerns. Section 3 of the FACT Act requires the Agencies to prescribe joint regulations establishing an effective date for each provision of the Act “[e]xcept as otherwise specifically provided in this Act and the amendments made by this Act.” The FACT Act requires that the Agencies jointly adopt final rules establishing the effective dates within two months of the date of the enactment of the Act. Thus, by law, the Agencies must complete these rulemaking efforts by February 4, 2004. The Act also provides that each of the effective dates set by the Agencies must be “as early as possible, while allowing a reasonable time for the implementation” of that provision, but in no case later than ten months after the date of issuance of the Agencies' joint final rules establishing the effective dates for the Act. 117 Stat. 1953.

In mid-December of 2003, the Agencies took two related actions to comply with the requirement to establish effective dates for the Act. In the first action, the Agencies implemented joint interim final rules that establish December 31, 2003, as the effective date for sections 151(a)(2), 212(e), 214(c), 311(b), and 711 of the FACT Act, each of which determines the relationship of State laws to areas governed by the FCRA. See 68 FR 74467 (Dec. 24, 2003). In the second action, the Agencies proposed joint rules that would establish a schedule of effective dates for certain other provisions of the FACT Act for which the Act itself does not specifically provide an effective date. See 68 FR 74529 (Dec. 24, 2003). The Agencies sought comment on both of these related actions.

The Agencies collectively received more than 50 comments in response to the joint interim final and proposed rules; many commenters sent copies of the same letter to each of the Agencies and submitted separate comments on both the joint interim final and proposed rules. 1 Most of the comments were submitted by financial institutions and associations that represent financial institutions. Other comments were submitted by the National Association of Attorneys General and by groups that represent consumers, including the Consumer Federation of America. Three members of Congress also submitted comments in response to the Agencies' joint interim and proposed rules.

Overall, commenters supported the Agencies' approach to establish effective dates in a bifurcated structure that distinguished the provisions that require immediate effective dates (primarily those that relate to state laws) from the other provisions of the FACT Act. The comments also expressed support for the Agencies' joint proposal to establish a schedule of effective dates that would make certain provisions effective as early as March 31, 2004, and others effective December 1, 2004. Commenters focused on two main issues: first, with respect to the Agencies' joint interim final rules, commenters raised concerns about establishing December 31, 2003, as the effective date for the preemption provisions of the FCRA, as amended by the FACT Act; and second, commenters raised concerns about establishing December 1, 2004, as the effective date for section 214(a) of the FACT Act, which relates to using information for making solicitations to a consumer. After reviewing the comments received, the Agencies have determined to make final the joint interim rules and have modified the joint proposed rules in certain respects, as discussed below. 2

In the supplementary information to the joint interim final rules, the Agencies addressed the effective dates for certain provisions of the FACT Act that require one or more agencies to undertake an action or rulemaking within a specified period of time after enactment of the Act. 68 FR 74468. The Agencies determined that no joint regulations under section 3 of the FACT Act are required to make these provisions effective. The Agencies found that, in these cases, the date of enactment of the statute is specified as the lawful effective date because that is the predicate for mandating that an agency action be performed within a period of time after the date of enactment. The commenters addressing this determination supported the Agencies' finding and interpretation under section 3 with respect to these provisions of the Act. The Agencies have not established in these joint final rules the effective dates that apply to these provisions of the Act.

The Agencies received several comments on the joint interim final rules that establish December 31, 2003, as the effective date for the provisions of the FACT Act that make permanent the existing preemption provisions of the FCRA and add others.

Overall, commenters supported the Agencies' determination that a final rule should be prescribed immediately to implement December 31, 2003, as the effective date for paragraph (3) of section 711 of the FACT Act. That section eliminates the so-called sunset provision and thus makes permanent the current provisions preempting State laws in seven areas regulated under the FCRA.

Commenters presented several different views on the Agencies' joint interim final rule that also establishes December 31, 2003, as the effective date for paragraph (2) of section 711 of the Act. This sub-provision amends the FCRA by providing that no requirement or prohibition may be imposed by the laws of any State “with respect to the conduct required by the specific provisions of” nine sections of the FCRA, as amended by the FACT Act. Several commenters argued that the effective dates for the new preemption provisions added in paragraph (2) should be linked with the effective dates of the substantive provisions of the Act. 3 These commenters argued that, if the FACT Act provisions are read to preempt existing State laws prior to the time that the FACT Act provisions are actually implemented, then consumers who reside in several States may be deprived of the protections under State laws before the Federal protections become effective.

Other commenters argued in contrast that the Agencies should clarify that the FACT Act provisions preempt State laws immediately and without regard to when the underlying Federal provision becomes effective. 4 These commenters contended that it would be costly and confusing to delay the preemptive effect of the FACT Act provisions and thereby subject financial institutions, consumer reporting agencies, and others to State law requirements for the brief period of time until rules implementing the Federal provisions become effective.

The Agencies are required by section 3 of the FACT Act to establish effective dates for various provisions of the FACT Act, and to set those dates not later than 10 months after the issuance of the final joint rules. When and whether State laws are preempted by these provisions of the FACT Act is determined by each specific provision of the FACT Act and the provisions of the FCRA that the FACT Act amends. In establishing December 31, 2003, as the effective date for the provisions of the FACT Act that address the relation to State laws, the Agencies did not determine when or whether any particular State law was or would be preempted.

After review of the comments, the Agencies adopt section _.1(c)(1)(i) as set forth in the interim rules.

The Agencies note that section 711(2) of the FACT Act adds a new provision to the FCRA that bars any requirement or prohibition under any State laws “ with respect to the conduct required by the specific provisions” of the FCRA, as amended by the FACT Act. The joint final rules are based on the Agencies' view that the specific protections afforded under the FCRA override State laws only when the referenced Federal provisions that require conduct by the affected persons are in effect because that is the time when conduct is required by those provisions of the FCRA. Similarly, section 151(a)(2) of the FACT Act adds a new provision to section 625(b)(1) of the FCRA that preempts any State law “ with respect to any subject matter regulated under ” that provision. Only when a Federal provision is in effect does the subject matter become regulated under that section and, consequently, State law preempted. 5 In both of these situations, the Agencies believe that a requirement that applies under an existing State law will remain in effect until the applicable specific provision of the FCRA, as amended by the FACT Act, becomes effective. Consequently, because the substantive Federal provisions actually will become effective at different times, from six months to three years after the FACT Act was enacted, establishing December 31, 2003, as the effective date for the preemption provisions would allow the State law to continue in effect until the respective Federal protections underlying each of the Federal preemption provisions comes into effect.

In the joint interim final rules, the Agencies determined that December 31, 2003, is the effective date for each of the provisions of the FACT Act that authorizes an agency to issue a regulation or to take other action to implement the applicable provision of the FACT Act or of the FCRA. This subsection of the joint interim final rules limited the immediate effective date only to an agency's authority to propose and adopt the implementing regulation or to take such other action. In reaching that determination, the Agencies explained that joint interim final rules would not affect the substantive provisions of the FACT Act implemented by an agency rule.

Commenters supported the Agencies' finding and determination to establish an immediate effective date for the provisions of the Act that relate to an agency's authority to issue a regulation or take other action. After review of the comments received and for the reasons set forth in the joint interim final rules, the Agencies adopt section _.1(c)(1)(ii) as set forth in the interim rules. The Agencies reassert the position that the substantive provisions of the Act become effective as provided in the Act, as provided in the Agencies' joint effective date rules, or as provided by the substantive rules promulgated by the agencies, as appropriate.

As the Agencies observed in the joint proposal, the FACT Act contains a number of provisions that clarify or address rights and requirements under the FCRA that are self-effectuating but that do not contain a specific effective date. These provisions are: Section 156 (statute of limitations); sections 312(d) (furnisher liability exception), (e) (liability and enforcement), and (f) (rule of construction); section 313(a) (action concerning complaints); section 611 (communications for certain employee investigations); and section 811 (clerical amendments). Section 111 (amendment to definitions) contains definitions that are self-effectuating but that do not contain specific effective dates. The Agencies proposed to establish March 31, 2004, as the effective date for each of the provisions of the Act listed above.

Overall, commenters supported the Agencies' proposal to establish March 31, 2004, as the effective date for these provisions. Many of the commenters specifically stated that the proposed effective date is appropriate for each of these provisions and would allow a reasonable period of time for affected entities to adjust or develop their systems to comply with the applicable requirements. For example, one financial institution observed that these provisions should not require significant changes to existing business practices conducted by financial institutions. 6

One commenter argued that the Agencies should establish a later effective date for section 111 of the Act, which relates to certain definitions for the FCRA. 7 This commenter argued that section 111 designates a new type of consumer reporting agency, defined as a “reseller,” that is specifically exempted from certain requirements that generally apply to all consumer reporting agencies. Under the Agencies' proposed rule, the definition of “reseller” would be effective earlier than the provisions that exempt a “reseller” from certain obligations, which would be effective on December 1, 2004. The commenter believed that, during that intervening period a “reseller” may be subject to certain requirements under the FCRA, but unable to avail itself of an exemption until the applicable statutory provision added by the FACT Act later becomes effective.

The Agencies have established March 31, 2004, as the effective date for section 111 as proposed. Establishing the effective date for section 111, which includes only definitions of terms used throughout the new provisions of the FCRA added by the FACT Act, does not impose any substantive obligation on a “reseller” or others referenced in that section. All the obligations, if any, are imposed by the substantive provisions of the FACT Act and FCRA, which become effective according to the terms of the applicable statutory provision, the Agencies' joint rules, or as provided by the substantive implementing regulation by an agency, as appropriate. The Agencies also believe that establishing a relatively early effective date for all of the definitions set forth in section 111 is appropriate because the new terms apply to a variety of statutory provisions and implementing regulations that become effective at various times.

One commenter urged the Agencies to adopt a later effective date for section 156 of the Act, which pertains to the statute of limitations. 8 Relative to the time periods that currently apply to actions involving violations of the FCRA, section 156 extends the statute of limitations to permit a plaintiff to bring an action in an appropriate court not later than the earlier of (1) two years after the date of discovery by the plaintiff of the violation or (2) five years after the date on which the violation that is the basis for such liability occurs. This commenter argued that the “extended statute of limitations for many causes of action will require users of consumer reports and others to reevaluate and alter their recordkeeping systems in order to retain the appropriate documents and other information that may be necessary for use in future causes of action.”

The Agencies recognize that financial institutions and others undoubtedly will be affected by the amendment to the statute of limitations. Nevertheless, the Agencies find, upon review of all of the comments received on the proposal, that the potentially adverse effects that may arise due to a three-month implementation period (following the date of the Agencies' proposal) are minimal. In light of the mandate in section 3 of the Act to “establish effective dates that are as early as possible, while allowing a reasonable time for the implementation of the provisions of this Act,” the Agencies have determined that March 31, 2004, is a reasonable effective date for section 156.

Upon review of the comments received on the other provisions of the Act subject to this part of the joint proposal, the Agencies believe that the “reasonable time to implement” standard of section 3 of the Act permits an early effective date because, in general, these provisions do not require significant changes to business procedures. Furthermore, the Agencies note that the commenters did not disagree with the Agencies' preliminary view that each of these provisions furnishes important benefits to consumers and affected businesses. The Agencies find that March 31, 2004, is an appropriate date that balances the statutory mandate to effectuate provisions of the Act “as early as possible” while allowing a reasonable time for the implementation of the provisions described in this part of the joint proposal.

In general, commenters supported the Agencies' proposal to establish December 1, 2004, as the effective date for provisions that require changes in systems, disclosure forms or practices, or implementing regulations to be administered effectively. With a few exceptions discussed below, the commenters stated that allowing the maximum time permitted under section 3 of the Act for these provisions to become effective is appropriate and would allow a reasonable period of time for affected entities to adjust or develop their systems to comply with the applicable requirements.

Many commenters expressed concerns about the Agencies' proposal to establish December 1, 2004, as the effective date for section 214(a) of the Act, which creates a new section 624 of the FCRA. 9 This new section sets forth a special rule that applies to the use of information by an affiliate for making solicitations to a consumer. Commenters argued, in general, that the Agencies' proposed effective date would be inconsistent with the time frame contemplated by the statute itself for implementing this provision. Commenters observed that section 214(b) of the FACT Act provides that regulations “ to implement section 624 of the [FCRA]” must be prescribed no later than September 4, 2004, and those implementing regulations must become effective not later than six months thereafter. Commenters noted that aligning the effective date of the statutory provision with the time frame for prescribing the applicable regulations for that provision would, as a practical matter, assist companies to coordinate the notices to consumers required by this new law with their other notices, such as their privacy notices required by the Gramm-Leach-Bliley Act. 10

Based on the comments received on the joint proposal, the Agencies have reconsidered whether it is necessary for the Agencies to establish an effective date for section 214(a) under section 3 of the FACT Act. Section 624(a)(5) of the FCRA, as added by section 214(a) of the FACT Act, restricts the use of customer information shared by a financial institution with its affiliate. That section also specifically provides that “[t]his subsection shall not prohibit the use of information to send a solicitation to a consumer if such information was received prior to the date on which persons are required to comply with regulations implementing this subsection.” As noted above, subsection 214(b) establishes specific dates for the issuance and effectiveness of the implementing regulations for section 214(a). The Agencies believe that this “no-retroactivity” paragraph, which specifically references the date of the rules adopted under section 214(b), inextricably connects the underlying obligations imposed by section 214(a) with the effective date(s) specifically set by Congress in section 214(b). Read together, these provisions establish a specific effective date for the obligations in section 214(a).

Section 3 of the FACT Act mandates that the Agencies jointly establish effective dates for the provisions of the Act “[e]xcept as otherwise specifically provided in this Act and the amendments made by this Act.” Because the obligations in section 214(a) are specifically referenced and directly connected to the rulemaking schedule specified in section 214(b), the Agencies believe Congress has established the effective date for section 214(a), which is the effective date of the rules implementing that section. Accordingly, the Agencies have determined that the Agencies are not required by section 3 of the FACT Act to establish an effective date for section 214(a) and that section becomes effective according to the schedule established by section 214(b).

The Agencies believe that the same analysis applies to sections 211(a) (concerning free consumer reports) and 216 (concerning the disposal of consumer report information and records). Each of these sections specifically references and depends upon the implementation of regulations that Congress has required be issued by specific dates. 11 Consequently, Congress has specified the effective dates of these sections to be the effective dates of the implementing rules, which must be completed by specific dates. For this reason, the Agencies believe that the Agencies are not required by section 3 of the FACT Act to set effective dates for section 211(a) or section 216. These sections will become effective on the dates that the implementing rules become effective. The FACT Act contains a number of other provisions without effective dates that would require changes in systems, disclosure forms or practices, or implementing regulations to be administered effectively. The Agencies have determined that December 1, 2004, is an appropriate effective date for all of the provisions included in subsection _.1(c)(3) of the joint proposed rules, except for sections 211(a), 214(a), and 216, as discussed above. Providing the full 10-month period permitted by the Act will allow industry and the various agencies a reasonable time to establish systems and rules to implement these sections effectively. Each of these sections is listed in the final joint rules. 12

One commenter suggested that the Agencies should establish December 4, 2004, instead of December 1, 2004, as proposed, as the effective date for these provisions of the Act. 13 This commenter noted that December 1, 2004, falls on a Wednesday and contended that an effective date that falls during the middle of the week “could work a hardship on many companies.” The commenter indicated that establishing December 4, 2004, as the effective date for these provisions may help to ensure that implementation processes proceed smoothly because companies would be provided with more time to implement and test new systems in place over that weekend. By contrast, other commenters stated that December 1, 2004, is consistent with the maximum 10-month period permitted under the statute and did not note any adverse consequences that could be posed by that particular day.

Section 3 of the FACT Act permits the Agencies to establish an effective date as late as 10 months following the effective date of the Agencies' joint final rules. This date was uncertain at the time the rules were proposed. The Agencies believed that adopting a date certain would reduce burden on all affected by the joint rules by removing uncertainty about the effective date. The Agencies proposed December 1, 2004, as a date that would both be within the 10-month statutory period and allow affected entities to begin implementation efforts at the start of a new month. Based on all of the comments, the Agencies continue to believe that, on balance, December 1, 2004, is an appropriate effective date for the provisions of the statute described in section _.1(c)(3) of the joint rules because the first day of the month sharply demarcates the start date for these provisions of the new law and reduces burden on entities that use a monthly cycle.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3506; 5 CFR 1320 Appendix A.1), the Agencies have reviewed the joint final rules. (The Board has done so under authority delegated to the Board by the Office of Management and Budget.) The joint final rules contain no collections of information pursuant to the Paperwork Reduction Act.

In accordance with section 3(a) of the Regulatory Flexibility Act (5 U.S.C. 603(a)), the Agencies must publish a final regulatory flexibility analysis with these joint rules. The joint rules establish effective dates for several provisions of the FACT Act. Prior to the enactment of the FACT Act, the FCRA imposed various duties on parties that furnish information to consumer reporting agencies, on parties that use consumer reports, and on consumer reporting agencies themselves. The FACT Act modifies and extends some of these existing duties and imposes new duties on these respective parties. The schedule of effective dates established by the Agencies would make the newly-enacted statutory provisions applicable with respect to these parties.

Because the rules merely establish effective dates, the rules themselves impose no reporting, recordkeeping or other requirements, which would arise either from obligations imposed by the statute itself or as a result of rulemaking or other implementing actions that may be taken by agencies under the statute.

On January 9, 2004, the FAA published a final rule amending its regulations for landing under instrument flight rules (69 FR 1620; Jan. 9, 2004). The rule allows aircraft to operate below certain specified altitudes during instrument approach procedures, even when the airport environment is not visible using natural vision, if the pilot uses certain FAA-certified enhanced flight vision systems. The preamble of the final rule contained an incomplete sentence that was inadvertently included. This correction removes that sentence in its entirety.

In FR Doc. 04-427 published on January 9, 2004, on page 1634, in the third column, in the fourth line from the top of the page, remove the partial sentence that reads “Other technology solutions for conducting low visibility approach and landing operations, such as SVS, would require a different operational.”

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain McDonnell Douglas Model 717-200 airplanes was published in the Federal Register on September 18, 2003 (68 FR 54690). That action proposed to require inspection of the inboard ends of the outer skin panels of the horizontal stabilizer at Station Xh=±7.234 for material defects, and corrective action, if necessary.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were submitted in response to 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.

There are approximately 56 airplanes of the affected design in the worldwide fleet. The FAA estimates that 41 airplanes of U.S. registry will be affected by this AD, that it will take approximately 4 work hours per airplane to accomplish the required inspection, and that the average labor rate is $65 per work hour. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $10,660, or $260 per airplane.

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

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) to include an airworthiness directive (AD) that is applicable to certain Dassault Model Falcon 2000 series airplanes was published in the Federal Register on December 4, 2003 (68 FR 67816). That action proposed to require modification of the forward ribs of the left and right engine pylons to plug holes left open during production.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were submitted in response to the proposal or the FAA's determination of the cost to the public.

We have determined that air safety and the public interest require the adoption of the rule as proposed.

We estimate that 119 airplanes of U.S. registry will be affected by this AD, that it will take approximately 1 work hour per airplane to accomplish the required actions, and that the average labor rate is $65 per work hour. The cost of required parts is minimal. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $7,735, or $65 per airplane.

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

The 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) to include an airworthiness directive (AD) that is applicable to certain Dornier Model 328-300 series airplanes was published in the Federal Register on November 17, 2003 (68 FR 64822). That action proposed to require replacement of 3-switch and 4-switch overhead fire extinguisher control panels with new, improved panels.

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

The commenter supports the proposed rule.

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

The FAA estimates that 19 airplanes of U.S. registry will be affected by this AD, that it will take approximately 1 work hour per airplane to accomplish the replacement of the overhead fire extinguisher control panel, and that the average labor rate is $65 per work hour. Required parts will be provided by the parts manufacturer at no cost to operators. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $1,235, or $65 per airplane.

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

The 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) to include an airworthiness directive (AD) that is applicable to certain Boeing Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-200F, 747-300, 747SP, and 747SR series airplanes, was published in the Federal Register on July 9, 2003 (68 FR 40821). That action proposed to require a one-time inspection of each emergency evacuation slide or slide/raft to determine if a certain discrepant hose assembly is installed, and replacement of the hose assembly with a new or serviceable assembly if necessary.

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 concurs with the proposed rule.

One commenter requests that the applicability in the proposed rule be revised to apply to “BFGoodrich slides or slide/rafts having part number 7A1238-()(), 7A1239-()(), 7A1248-()(), 7A1261-()(), 7A-1255-()(), 7A-1256-()(), or 7A-1257-()(), where “()()” represents any dash number of those part numbers, that may be installed on certain Model 747 series airplanes.” The commenter states that the applicability of the proposed rule is misleading and could potentially cause compliance and/or record keeping errors because the slides are certified under a Technical Standard Order and may be removed, repaired, overhauled separately from the airplane, moved from airplane to airplane, or stored awaiting installation. Additionally, the commenter states that it is possible that the discrepant slides could be installed on airplane models not listed in the proposed applicability ( i.e. , Model 747-400 series airplanes). Therefore, the commenter asserts that the proposed rule should be applicable to the component rather than the airplane model.

The FAA does not agree. According to general FAA policy, if an unsafe condition results from the installation of a particular component in only one particular make and model of airplane, the AD would apply to the airplane model, not the component. The reason for this is: If the AD applies to the airplane model equipped with the item, operators of those airplanes will be notified directly of the unsafe condition and the action required to correct it. While we assume that operators can identify the airplane models they operate, they may not be aware of specific items installed on the airplanes. Therefore, specifying the airplane models in the applicability as the subject of the AD prevents an operator's “unknowing failure to comply” with the AD. We recognize that an unsafe condition may exist in an item that is installed in many different airplanes. In that case, we consider it impractical to issue an AD against each airplane; in fact, many times, the exact models and numbers of airplanes on which the item is installed may be unknown. Therefore, in those situations, the AD would apply to the item and usually indicates that the item is known to be “installed on, but not limited to,” various airplane models. In this case, the applicability extends only to those airplane models for which the discrepant escape slides are approved for installation on; the discrepant slides are not approved for installation on Model 747-400 series airplanes. No change to the final rule is necessary in this regard.

Another commenter requests that the proposed compliance time be extended from 36 months to 54 months. The commenter states that its current overhaul interval for the affected slides is 54 months. The commenter points out that its maintenance program carries out the Goodrich slide component maintenance manual (CMM) inspections for hydrostatic testing of the hoses during slide overhaul and discards any hose not passing the test. During its 22 years of operating the affected slides on its Model 747 series airplanes, the commenter states that it has had no failed deployments (scheduled, unscheduled, or during shop inflation) due to hose failure. Therefore, the commenter suggests that a 54-month compliance time would provide an adequate level of safety.

We do not agree. In developing an appropriate compliance time for this action, we considered the safety implications, operators' normal maintenance schedules, and the compliance time recommended by the airplane manufacturer for the timely accomplishment of the required actions. In consideration of these items, we have determined that a 36-month compliance time will ensure an acceptable level of safety and is an appropriate interval of time wherein the required actions can be accomplished during scheduled maintenance intervals for the majority of affected operators. We have also determined that the CMM slide inspections are not an adequate means to address the failure mode of the affected slides. However, according to the provisions of paragraph (d) of this final rule, we may approve requests to adjust the compliance time if the request includes data that justify that a different compliance time would provide an acceptable level of safety. No change to the final rule is necessary in this regard.

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 as proposed.

There are approximately 333 airplanes of the affected design in the worldwide fleet. The FAA estimates that 88 airplanes of U.S. registry will be affected by this AD.

It will take approximately 1 work hour per airplane to accomplish the required inspection, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of the required inspection on U.S. operators is estimated to be $5,720, or $65 per airplane.

Should an operator be required to accomplish the replacement of a hose assembly, it will take approximately 12 work hours per hose assembly, at an average labor rate of $65 per work hour. Required parts will cost between $795 and $1,169 per hose assembly. Based on these figures, the cost impact of the required replacement is estimated to be between $1,575 and $1,949 per hose assembly.

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 superseding AD 95-22-04, amendment 39-9411 (60 FR 54421, October 24, 1995), which is applicable to certain Canadair Model CL-215-1A10 and CL-215-6B11 series airplanes, was published in the Federal Register on December 5, 2003 (68 FR 67971). The action proposed to require inspections to detect cracking of main landing gear (MLG) axles that have been reworked by chromium plating, and replacement of cracked axles with serviceable axles. That action also proposed to add a dimensional check and follow-on corrective actions, mandate terminating action for certain airplanes, and add three airplanes to the applicability in the existing AD.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were submitted in response to 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.

There are approximately 3 airplanes of U.S. registry that will be affected by this AD.

The inspections that are currently required by AD 95-22-04 take about 2 work hours 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 inspections on U.S. operators is estimated to be $390, or $130 per airplane, per inspection cycle.

The dimensional check and ultrasonic inspection required by this AD action will take about 2 work hours per airplane to accomplish, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of these checks and inspections on U.S. operators is estimated to be $390, or $130 per airplane, per cycle.

The replacement required by this AD action, if done, will take about 8 work hours per airplane to accomplish, at an average labor rate of $65 per work hour. Required parts will cost approximately $13,000 per assembly (two per airplane). Based on these figures, the cost impact of the replacement required by this AD on U.S. operators is estimated to be $26,520 per airplane.

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

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) to include an airworthiness directive (AD) that is applicable to certain Aerospatiale Model ATR42 and ATR72 series airplanes was published in the Federal Register on December 17, 2003 (68 FR 70208). That action proposed to require replacement of the swinging lever spacers in the left and right leg assemblies of the main landing gear with new, improved spacers.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were submitted in response to 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.

The FAA estimates that 133 airplanes of U.S. registry will be affected by this AD, that it will take about 16 work hours per airplane to accomplish the replacement, and that the average labor rate is $65 per work hour. Required parts will cost between $921 and $4,272 per airplane. Based on these figures, the cost impact of the replacement on U.S. operators is estimated to be between $1,961 and $5,312 per airplane.

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

The 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) to include an airworthiness directive (AD) that is applicable to certain Fokker Model F.28 Mark 1000, 2000, 3000, and 4000 series airplanes was published in the Federal Register on December 5, 2003 (68 FR 67981). That action proposed to require repetitive general visual inspections, lubrication, and tests of the release mechanism for the service/emergency door; and corrective actions if necessary. That action also proposed an optional terminating action for the repetitive inspections and lubrication.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were submitted in response to the proposal or the FAA's determination of the cost to the public.

We have determined that air safety and the public interest require the adoption of the rule as proposed.

We estimate that 6 airplanes of U.S. registry will be affected by this AD, that it will take approximately 15 work hours per airplane to accomplish the required actions, and that the average labor rate is $65 per work hour. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $5,850, or $975 per airplane, per inspection cycle.

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

The 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) to include an airworthiness directive (AD) that is applicable to all Boeing Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200F, 747-200C, 747-300, 747SR, and 747SP series airplanes was published in the Federal Register on June 18, 2003 (68 FR 36506). That action proposed to require repetitive inspections for discrepancies of the structure near and common to the upper chord and splice fittings of the rear spar of the wing, and repair if necessary. That action also proposed to provide for an optional modification that, if accomplished, would terminate the repetitive inspection requirement, but would necessitate eventual post-modification inspections.

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

One commenter, the manufacturer, requests a change to paragraph (c) of the proposed AD to state, “If any cracking, corrosion, or damage is found * * *” rather than “If any cracking is found * * *”. The commenter states that corrosion is often present in bolt holes vacated by alloy steel bolts, and that damage can occur during removal and installation of bolts. The commenter also requests that paragraph (c) be changed to reference “Part 3—Inspection and Repair,” of the Accomplishment Instructions of Boeing Service Bulletin 747-57A2314, Revision 1, dated January 9, 2003 (which is referenced in the proposed AD as the appropriate source of service information for the required actions) for the proposed repair for cracked, corroded, and damaged fastener holes.

The FAA agrees. The comments clarify the types of discrepancies for operators to look for and point out which part of the Accomplishment Instructions of Boeing Service Bulletin 747-57A2314, Revision 1, dated January 9, 2003, contains the necessary instructions for repair. We have revised paragraph (c) of the final rule to include the requested changes. For the same reason, we have added reference to paragraph (d) of the final rule and Part 4 of the service bulletin.

The same commenter requests a change to paragraph (d) of the proposed AD to include a reference to the installation of new bushings, as required. The request is intended to make the wording in the proposed AD consistent with the wording in Boeing Service Bulletin 747-57A2314, Revision 1, dated January 9, 2003.

The FAA agrees. The comments clarify the type of modification that is allowed in Boeing Service Bulletin 747-57A2314, Revision 1, dated January 9, 2003. We have revised paragraph (d) of the final rule to include the requested change.

The same commenter requests that paragraph (e) of the proposed AD include a reference to an ultrasonic or magnetic particle inspection of removed H-11 bolts, and a reference to a detailed inspection of other non H-11 removed bolts for cracking, corrosion, or damage. The commenter states that a visual inspection of H-11 steel bolts is not adequate for finding cracks in these bolts because H-11 bolts are susceptible to stress corrosion cracking. The commenter further states that it is necessary to find small cracks by non-destructive test (NDT) methods before the cracks grow long enough to fracture the H-11 bolts and cause the loss of shear load capability in the splices. The commenter adds that a detailed visual inspection is adequate for finding damage to titanium or Inconel bolts because these bolts are not susceptible to stress corrosion cracking.

The FAA does not agree with the proposed changes to paragraph (e) of the AD. Paragraph (e) requires inspections only after the modification per paragraph (d) has been accomplished. Once the optional modification in paragraph (d) of the AD is accomplished, all H-11 bolts will have been replaced with updated Inconel bolts, thereby eliminating the need for inspections of H-11 bolts. Therefore, we have determined that no instructions referring to H-11 bolts in the post-modification instructions are necessary. No change to the final rule is necessary on this issue.

The same commenter requests a change to paragraph (e)(2) of the proposed AD to include a reference to Part 5 of Boeing Service Bulletin 747-57A2314, Revision 1, dated January 9, 2003, which contains instructions for repairing cracked holes found during post modification inspections.

The FAA agrees. The comments clarify where to find the repair instructions in the Accomplishment Instructions of Boeing Service Bulletin 747-57A2314, Revision 1, dated January 9, 2003. We have revised paragraph (e)(2) of the final rule to include the requested change.

The same commenter requests that the FAA change paragraph (f) of the proposed AD to include a reference to the original release of Boeing Alert Service Bulletin 747-57A2314, dated June 28, 2001. The purpose of the change would be to ensure that operators are aware that inspections, repairs, or modifications accomplished before the effective date of the proposed AD, per the original release or Revision 1 of the service bulletin are acceptable methods of compliance.

While the FAA agrees with the intent of the comment, we find that paragraph (f) of the AD already provides for acceptable use of the original release of the service bulletin. In addition, the AD implies that actions accomplished previously per Revision 1 of the service bulletin are acceptable because the proposed AD is written to address the actions required by Boeing Service Bulletin 747-57A2314, Revision 1, dated January 9, 2003, which was inadvertently listed by the commenter as having a date of June 28, 2001. Operators are given credit for work previously performed by the means of the phrase in the “Compliance” section of the AD that states, “Required as indicated, unless accomplished previously.” Therefore, in the case of this AD, if the required inspections, repairs, or modifications have been accomplished before the effective date of this AD, this AD does not require that they be repeated. No change to the final rule is necessary on this issue.

The same commenter requests that the FAA include paragraph (e) of the proposed AD in the list in paragraph (j) of the proposed AD. Paragraph (j) of the proposed AD contains a list of paragraphs that are excepted from the restriction on the installation of any alloy steel bolt in any location specified in the proposed AD on any airplane listed in the applicability of the proposed AD. The commenter states that both paragraph (e) of the proposed AD and Figure 2, Table 3 of Boeing Service Bulletin 747-57A2314, Revision 1, allow for re-installation of alloy steel bolts provided that they have been inspected by ultrasonic or magnetic particle inspection and found to be free of cracks, corrosion, or damage. The commenter states that the requirement to replace undamaged H-11 alloy steel bolts will result in unnecessary cost to the operators and will conflict with the service bulletin. The commenter further states that airplanes may be unnecessarily grounded by the lack of replacement Inconel bolts, which are difficult to procure, and that the requirement would place an economic burden on the manufacturer to maintain a large inventory of replacement bolts.

In addition, the commenter states that the manufacturer has received no reports of multiple H-11 bolt fractures in the splice at the rear spar upper chord side of the body splice and upper surface stringer 1. As a result, the commenter states, flight safety is provided by existing maintenance. The commenter further states that Boeing Service Bulletin 747-57A2314, Revision 1, dated January 9, 2003, requires ultrasonic or magnetic particle inspection of the alloy steel bolts during each repeat inspection of the bolt holes, and that the bolts must be free of cracks before they can be re-installed in the holes. According to the commenter, the repeat inspections every 6,000 to 13,000 flight cycles, and the replacement of the alloy steel bolts with Inconel bolts during splice modification provide an additional level of safety.

The FAA does not agree with this request to add paragraph (e) of the proposed AD to the list of paragraphs that are excepted from the restriction on the installation of any alloy steel bolt in paragraph (j) of the proposed AD. In reaching this conclusion, we considered that paragraph (e) does not allow for the re-installation of alloy steel (H-11) bolts because, in order for the post- modification inspections of paragraph (e) to be necessary, the optional modification of paragraph (d) must have been previously accomplished. If the operators chooses to accomplish the optional modification of paragraph (d), all alloy steel (H-11) bolts are required to be replaced with Inconel bolts. Also, it is important that once the Inconel bolts are installed as part of the modification, they are not replaced by alloy steel (H-11) bolts in the future. No change to the final rule is necessary on this issue.

The FAA has changed all references to a “Boeing Alert Service Bulletin 747-57A2314, Revision 1” in the proposed AD to “Boeing Service Bulletin 747-57A2314, Revision 1” in this final rule. We have also changed the paragraph (j) to refer to the H-11 bolt for clarity.

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. However, for clarity and consistency in this final rule, we have retained the language of the 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 to $65 per work hours. The cost impact information, below, reflects this increase in the specified hourly labor rate.

There are approximately 593 airplanes of the affected design in the worldwide fleet. The FAA estimates that 176 airplanes of U.S. registry are affected by this AD.

It will take approximately 8 work hours per airplane to accomplish the required inspection, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of the required inspection on U.S. operators is estimated to be $91,520, or $520 per airplane, per inspection cycle.

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

Should an operator elect to accomplish the optional terminating action that is provided by this AD action, it will take approximately 22 work hours to accomplish it, at an average labor rate of $65 per work hour. The cost of required parts will be approximately $10,700 per airplane. Based on these figures, the cost impact of the optional terminating action will be approximately $12,130 per airplane.

If the optional terminating action provided by this AD action is accomplished, an eventual post-modification inspection is necessary. That inspection will take approximately 8 work hours per airplane to accomplish, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of the post modification inspections would be approximately $250 per airplane, per inspection cycle.

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) to include an airworthiness directive (AD) that is applicable to certain Bombardier Model DHC-8-102, -103, -106, -201, -202, -301, -311, and -315 airplanes was published in the Federal Register on December 11, 2003 (68 FR 69057). That action proposed to require a one-time inspection to determine the serial numbers of the elevator and aileron servos of the drive assemblies of the automatic flight control system, and follow-on corrective actions if necessary.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were submitted in response to 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.

We estimate that 200 airplanes of U.S. registry will be affected by this AD. It will take approximately 1 work hour per airplane to accomplish the inspection, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of the inspection on U.S. operators is estimated to be $13,000, or $65 per airplane.

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

The 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) to include an airworthiness directive (AD) that is applicable to certain Airbus Model A330 and A340-200 and -300 series airplanes was published in the Federal Register on December 5, 2003 (68 FR 67984). That action proposed to require repetitive inspections for proper installation of the parachute pins located in the escape slides/rafts at the door 3 Type I emergency exits on the left and right sides of the airplane; a one-time inspection of the associated electrical harnesses for the escape slides/rafts for proper routing and installation; and corrective actions if necessary. That action also proposed to require adjustment of the speed lacing for the soft covers of the escape slides/rafts, which would terminate the repetitive inspections.

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

The commenter states that the affected slide part numbers and serial number range are listed in the Applicability section of the proposed AD, but only the affected part numbers are listed in paragraph (c), Parts Installation, of the proposed AD. The commenter requests that the serial number range be included in paragraph (c) to coincide with the Applicability section. The commenter states that this change would clarify that slide/raft assemblies with serial numbers later than those in the applicability section are not affected by the AD.

The FAA concurs with the commenter's request to add the serial number range which appears in the Applicability section of this final rule to paragraph (c). We find that this change will clarify that slide/raft assemblies with serial numbers later than those listed in paragraph (c) are not affected by this final rule. We have clarified paragraph (c) of this final rule accordingly.

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

We estimate that 14 Model A330 series airplanes of U.S. registry will be affected by this AD, that it will take approximately 1 work hour per airplane to accomplish the required inspections, and that the average labor rate is $65 per work hour. Based on these figures, the cost impact on U.S. operators of the inspections required by this AD is estimated to be $910, or $65 per airplane.

It will take approximately 3 work hours per airplane to adjust the speed lacing for the escape slide/raft soft cover at an average labor rate of $65 per work hour. Based on these figures, the cost impact on U.S. operators for the adjustment of the speed lacing for the escape slide/raft soft cover required by this AD is estimated to be $2,730, or $195 per airplane.

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

Currently, there are no Model A340 series airplanes on the U.S. Register. However, should an affected airplane be imported and placed on the U.S. Register in the future, it will require 1 work hour per airplane to accomplish the inspections and 3 work hours per airplane to accomplish the adjustment of the speed lacing for the escape slide/raft soft cover, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of the AD for Model A340 operators would be $260 per airplane.

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 Direction Générale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, notified the FAA that an unsafe condition may exist on all Airbus Model A330-200, A330-300, A340-200, and A340-300 series airplanes. Each elevator on these airplanes is equipped with two servocontrols having three operating modes. A selector valve installed in each servocontrol enables the servocontrol to change between operating modes; the selector valve's position is transmitted to the flight control computers by a transducer. The DGAC advises that several cracks of the transducer body at its attachment lugs have been detected. The affected transducers were installed at the damping positions 3CS1 and 3CS2. The cracks resulted in displacement of the transducer and consequent leakage of the hydraulic fluid into the affected servocontrol. In two cases the displacement of the transducer resulted in the elevator becoming inoperative (it dropped into a full down position), with no electronic centralized aircraft monitor (ECAM) warning provided to the flightcrew. Without an ECAM warning, this inoperative condition can be identified only if no elevator surface movement is detected during a pre-flight elevator check. Loss of elevator function, if not corrected, could result in reduced controllability of the airplane.

Airbus has issued Service Bulletins A330-27A3115 and A340-27A4119, both Revision 02, dated December 30, 2003. The service bulletins describe procedures for repetitive dye penetrant inspections for cracks of the attachment lugs of the mode selector valve position transducer on each elevator servocontrol installed at damping positions 3CS1 and 3CS2. The service bulletins also provide procedures for replacing a cracked transducer with a new part and torqueing the bolts when the transducer is reinstalled. The DGAC classified the service bulletins as mandatory and issued French airworthiness directive F-2003-460, dated December 24, 2003, to ensure the continued airworthiness of these airplanes in France.

The Airbus service bulletins refer to Goodrich Actuation Systems Inspection Service Bulletin SC4800-27-13 as an additional source of service information for the inspection.

These airplane models are manufactured in France and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DGAC has kept the FAA informed of the situation described above. We have examined the findings of the DGAC, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, this AD is being issued to ensure proper functioning of the elevator surfaces, and to detect and correct cracking of the attachment lugs of the mode selector valve position transducers on the elevator servocontrols, which could result in partial loss of elevator function and consequent reduced controllability of the airplane. This AD requires a revision of the airplane flight manual (AFM) to include procedures for a pre-flight elevator check, repetitive inspections for cracks of the attachment lugs, and corrective action if necessary. The actions are required to be accomplished in accordance with the Airbus service bulletins described previously, except as discussed under “Differences Between This AD and French Airworthiness Directive.”

This AD also requires that operators report crack findings to Airbus. Because the cause of the cracking is not known, these required inspection reports will help determine the extent of the cracking in the affected fleet. Based on the results of these reports, we may determine that additional rulemaking is warranted.

The FAA and DGAC airworthiness directives differ in their compliance times for the first repetitive inspection interval for airplanes already inspected in accordance with Revision 01 of the service bulletin. The DGAC allows up to 700 flight cycles or 1,350 total flight cycles (whichever occurs later) for this interval, but this AD requires that all inspections be done within intervals of 350 flight cycles. French airworthiness directive 2003-371—which was replaced by the existing French airworthiness directive 2003-460—required that the inspection be done only one time. Therefore, for operators that had complied with 2003-371, the additional time following the initial inspection could provide the necessary time to schedule the subsequent repetitive inspections. Since we have not previously required the subject inspection, this AD does not provide for any extension of the first-repeated inspection interval. However, we may approve requests to adjust that interval, according to the provisions of paragraph (g) of this AD, if the request includes data that prove that the first repetitive interval would provide an acceptable level of safety.

Also, the DGAC airworthiness directive mandates a change to the flight crew operating manual (FCOM) to include an additional elevator pre-flight check. We agree with the need to check for proper functioning of the elevators before takeoff, but we have determined that the appropriate location for the procedure is in the AFM, in the Limitations section. We base this determination on the following considerations:

1. The FCOM does not require FAA approval; therefore, FCOM changes cannot be mandated by an AD.

2. It is possible that later changes to the FCOM made by an operator could result in removal of the necessary pre-flight check.

3. An ECAM warning to the flightcrew would not be provided following an elevator failure.

4. An elevator failure could result in reduced controllability of the airplane.

The DGAC airworthiness directive specifies that the FCOM be amended “for one or both damping servo controls above 1000 FC since new.” However, this AD requires that the parallel change to the AFM—which applies across airplane model/series—be incorporated within 30 days.

We consider this AD interim action. The manufacturer is considering developing a modification that will address the unsafe condition identified in this AD. Once this modification is developed, approved, and available, we may consider additional rulemaking.

Since a situation exists that requires the immediate adoption of this regulation, it is found that notice and opportunity for prior public comment hereon are impracticable, and that good cause exists for making this amendment effective in less than 30 days.

Although this action is in the form of a final rule that involves requirements affecting flight safety and, thus, was not preceded by notice and an opportunity for public comment, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified under the caption ADDRESSES. All communications received on or before the closing date for comments will be considered, and this rule may be amended in light of the comments received. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of the AD action and determining whether additional rulemaking action would be needed.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the AD is being requested.

• Include justification ( e.g. , reasons or data) for each request.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report that summarizes each FAA-public contact concerned with the substance of this AD will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2003-NM-223-AD.” The postcard will be date stamped and returned to the commenter.

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

The FAA has determined that this regulation is an emergency regulation that must be issued immediately to correct an unsafe condition in aircraft, and that it is not a “significant regulatory action” under Executive Order 12866. It has been determined further that this action involves an emergency regulation under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). If it is determined that this emergency regulation otherwise would be significant under DOT Regulatory Policies and Procedures, a final regulatory evaluation will be prepared and placed in the Rules Docket. A copy of it, if filed, 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) to include an airworthiness directive (AD) that is applicable to certain Dassault Model Falcon 900EX series airplanes was published in the Federal Register on October 9, 2003 (68 FR 58285). That action proposed to require modification of the front attachment area of the No. 2 engine.

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

The commenter asks that the proposed AD be changed to cite only Dassault Service Bulletin F900EX-103, Revision 1, dated October 16, 2002, as the appropriate source of service information for accomplishment of the modification. (The original issue of the service bulletin was cited as the appropriate source of service information for accomplishment of the modification in the proposed AD.) The commenter states that there are some build differences on airplanes with serial numbers 1 through 4 inclusive, that do not exist on other airplanes specified in the applicability of the original issue of the service bulletin; therefore, the original issue cannot be used for airplanes with those serial numbers. Revision 1 describes additional procedures for the modification of airplanes with serial numbers 1 through 4. The commenter adds that the Direction Générale de l'Aviation Civile, which is the airworthiness authority for France, has been informed of this change and has agreed not to issue a revision to French airworthiness directive 2001-160-027(B), dated May 2, 2001 (referenced in the proposed AD), due to inclusion of the phrase “original issue or further approved revisions” in that airworthiness directive.

The FAA agrees with the commenter. We have added Revision 1 of the service bulletin, and we have changed all service bulletin references in this final rule to specify Revision 1.

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

We estimate that 36 airplanes of U.S. registry will be affected by this AD, that it will take about 85 work hours per airplane to accomplish the modification, and that the average labor rate is $65 per work hour. Required parts will cost about $14,479 per airplane. Based on these figures, the cost impact of the modification on U.S. operators is estimated to be $720,144, or $20,004 per airplane.

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

The 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.

What events have caused this AD? The Civil Aviation Authority (CAA), which is the airworthiness authority for New Zealand, notified the FAA of an unsafe condition that may exist on all Pacific Aerospace Corporation, Ltd. Models FU24-954 and FU24A-954 airplanes. The CAA reports a recent fatal accident where the aircraft's fin separated in flight. Initial investigation of this accident indicates that the forward fin structure failed from fatigue cracks that were concealed beneath the rubber abrasion protection fitted to the fin.

What is the potential impact if FAA took no action? Failure to detect cracks in the vertical fin base could result in loss of the fin and loss of aircraft control.

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 Pacific Aerospace Corporation, Ltd. Models FU24-954 and FU24A-954 airplanes. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on October 30, 2003 (68 FR 61766). The NPRM proposed to require you to perform repetitive detailed visual inspections of the forward vertical fin base for cracks. If any cracks or discrepancies are found, you must repair the structure before further flight and notify the FAA.

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 the changes discussed above and minor editorial corrections. We have determined that these changes and 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 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 inspection:

The FAA has no method of determining the number of repairs each owner/operator will incur over the life of each of the affected airplanes based on the results of the inspections. We have no way of determining the number of airplanes that may need such repair. The extent of damage may vary on each airplane.

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

Will this AD involve a significant rule or regulatory action? For the reasons discussed above, I certify that this AD:

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

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

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

We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES. Include “AD Docket No. 2003-CE-38-AD” in your request.

Alpharma, Inc., One Executive Dr., P.O. Box 1399, Fort Lee, NJ 07024, filed a supplement to NADA 130-435 that provides for use of OXYMARINE (oxytetracycline hydrochloride) Soluble Powder for skeletal marking of finfish fry and fingerlings by immersion. The approval of this supplemental NADA relied on publicly available safety and effectiveness data contained in Public Master File (PMF) 5667 which were compiled under National Research Support Project 7 (NRSP-7), a national agricultural research program for obtaining clearances for use of new drugs in minor animal species and for special uses. The supplemental NADA is approved as of December 24, 2003, and the regulations are amended in 21 CFR part 529 by adding § 529.1660 to reflect the approval. The basis of approval is discussed in the freedom of information summary.

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

FDA has determined under 21 CFR 25.33(d)(4) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

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

Elanco Animal Health, A Division of Eli Lilly and Co., Lilly Corporate Center, Indianapolis, IN 46285, filed a supplement to NADA 95-735 for use of RUMENSIN 80 (monensin sodium) Type A medicated article. The supplemental NADA provides revised labeling for Type C medicated feeds containing 10 to 30 grams per ton (g/ton) of monensin used for the prevention and control of coccidiosis caused by Eimeria bovis and E. zuernii in feedlot cattle. This revised labeling replaces labeling approved in 1998 for this indication (64 FR 5158, February 3, 1999). The supplemental application is approved as of December 12, 2003, and the regulations are amended in 21 CFR 558.355(f)(3)(vii) to remove indications for improved feed efficiency in cattle feeds containing 10 to 30 g/ton of monensin. This indication for use is already codified in 21 CFR 558.355(f)(3)(i) for cattle feeds containing 5 to 30 g of monensin per ton.

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

The agency has determined under 21 CFR 25.33(a)(1) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor environmental impact statement is required.

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

The Burlington Northern Santa Fe Railroad (BNSF) requested this deviation from normal operations to facilitate the replacement of wire ropes on the lift span and its supporting towers. This project is occurring during the annual lock maintenance closure on the Snake River. During lock closure commercial traffic will be much reduced so that few, if any, vessels will be hindered by this bridge maintenance project. Currently, this drawbridge is maintained in the open position except for the passage of trains.

In accordance with 33 CFR 117.35(c), this work will be performed with all due speed in order to return the bridge to normal operation as soon as possible. This deviation from the operating regulations is authorized under 33 CFR 117.35.

The Florida East Coast Railway bridge across the Loxahatchee River, Jupiter, Florida, is a single leaf bascule bridge with a vertical clearance of 4 feet above mean high water (MHW) measured at the fenders in the closed position with a horizontal clearance of 40 feet. The current operating regulation in 33 CFR 117.300 requires that: (a) The bridge is not constantly tended; (b) The draw is normally in the fully open position, displaying flashing green lights to indicate that vessels may pass; (c) When a train approaches, the lights go to flashing red and a horn starts four blasts, pauses, and then continues four blasts. After an eight minute delay, the draw lowers and locks, providing the scanning equipment reveals nothing under the draw. The draw remains down for a period of eight minutes or while the approach track circuit is occupied; (d) After the train has cleared, the draw opens and the lights return to flashing green.

On January 12, 2004, the bridge owner, Florida East Coast Railroad, requested a deviation from the current operating regulations to allow the owner and operator to keep this bridge in the closed position during certain times each day to facilitate repairs. The Commander, Seventh Coast Guard District has granted a temporary deviation from the operating requirements listed in 33 CFR 117.300 to complete repairs to the bridge. Under this deviation the Florida East Coast Railway bridge, across the Loxahatchee River, mile 1.2, Jupiter, Florida, need not open from 8 a.m. to 12:30 p.m. and 1 p.m. to 5 p.m. Monday through Friday from February 10 until March 12, 2004.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. The Coast Guard is promulgating this security zone regulation to protect Military Ocean Terminal Sunny Point, NC, and the surrounding vicinity from threats to national security. Accordingly, based on the military function exception set forth in the Administrative Procedure Act, 5 U.S.C. 553(a)(1), notice and comment rule-making and advance publication, pursuant to 5 U.S.C. 553(b) and (c), are not required for this regulation.

Vessels frequenting the security zone at Military Ocean Terminal Sunny Point (MOTSU) facility serve as a vital link in the transportation of military munitions and explosives in support of Department of Defense missions at home and abroad. This vital transportation link is potentially at risk to acts of terrorism, sabotage and other criminal acts. Munitions and explosives laden vessels also pose a unique threat to the safety and security of the MOTSU facility, vessel crews, and others in the maritime community and the surrounding community should the vessels be subject to acts of terrorism or sabotage, or other criminal acts. The ability to control waterside access to munitions and explosives laden vessels moored to the MOTSU facility is critical to national defense and security, as well as to the safety and security of the MOTSU facility, vessel crews, and others in the maritime community and the surrounding community. Therefore, the Coast Guard is establishing this security zone to safeguard human life, vessels and facilities from sabotage, terrorist acts or other criminal acts.

The security zone is necessary to protect MOTSU and vessels moored at the facility, their crews, others in the maritime community and the surrounding communities from subversive or terrorist attack that could cause serious negative impact to vessels, the port, or the environment, and result in numerous casualties. The security zone contains the area and waters encompassed by a line connecting the northern tip of the security zone is at 34°02.03′ N, 077°56.60′ W, near Cape Fear River Channel Lighted Buoy 9 (LLNR 30355); extending south along the shore to 34°00.00′ N, 077°57.25′ W, proceeding to the southern most tip of the zone at 33°59.16′ N, 077°50.00′ W, at then proceeding north to 34°00.65′ N, 077°56.41′ W, at Cape Fear River Channel Lighted Buoy 31 (LLNR 30670 & 39905); then back to the point of origin at 34°02.03′ N, 077°56.60′ W.

No person or vessel may enter or remain in the security zone at any time without the permission of the Captain of the Port, Wilmington. Each person or vessel operating within the security zone must obey any direction or order of the Captain of the Port. The Captain of the Port may take possession and control of any vessel in a security zone and/or remove any person, vessel, article or thing from this security zone.

This proposed 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 the security zone, the effect of this regulation will not be significant because: (i) The COTP or his or her representative may authorize access to the security zone; (ii) the security zone will be enforced for limited duration; and (iii) the Coast Guard will make notifications via maritime advisories so mariners can adjust their plans accordingly.

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 transit or anchor in the vicinity of Military Ocean Terminal Sunny Point. This includes owners and operators of vessels desiring to enter the security zone.

This security zone will not have a significant economic impact on a substantial number of small entities for the following reasons. The security zone is not located in an area that would impede commercial or recreational traffic.

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

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 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 expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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

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

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

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

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have 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. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES.

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

• Crop production (NAICS 111)

• Animal production (NAICS 112)

• Food manufacturing (NAICS 311)

• Pesticide manufacturing (NAICS 32532).

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

1. Docket . EPA has established an official public docket for this action under docket identification (ID) number OPP-2003-0344. The official public docket 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 docket does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA. This docket facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The docket telephone number is (703) 305-5805.

2. Electronic access . You may access this Federal Register document electronically through the EPA Internet under the “ Federal Register ” listings at http://www.epa.gov/fedrgstr/ . A frequently updated electronic version of 40 CFR part 180 is available at http://www.access.gpo.gov/nara/cfr/cfrhtml_00/Title_40/40cfr180_00.html/ , a beta site currently under development.

An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.B.1. Once in the system, select “search,” then key in the appropriate docket ID number.

In this final rule, EPA is revoking 105 specific MMPE tolerances for residues of the insecticides aldicarb, carbofuran, diazinon, and dimethoate; herbicides atrazine, metolachlor, and sodium acifluorfen; fungicides fenarimol, propiconazole, and thiophanate-methyl; and the defoliant cacodylic acid because the Agency has concluded that there is no reasonable expectation of finite residues in or on the commodities associated with those tolerances, and therefore these tolerances are no longer needed. Also, EPA is modifying other specific fenarimol tolerances.

The determinations that there are no reasonable expectations of finite residues for the tolerances listed in this document were made based on feeding studies submitted since the time that the tolerances were originally established. These feeding studies used exaggerated amounts of the compound and did not show measurable residues of the pesticides tested. The Agency originally made these determinations in memoranda of March 6, 2002; March 25, 2002; April 21, 2002; July 1, 2002; and July 23, 2002. Because there was no expectation of finite residues, in subsequent memoranda of May 3, 2002; June 3, 2002; July 11, 2002; and July 23, 2002, respectively, the Agency declared these tolerances as safe and counted these tolerances toward meeting the tolerance reassessment requirements listed in FFDCA section 408(q). Copies of these memoranda can be found in the public docket for the proposed rule which published in the Federal Register of July 16, 2003 (68 FR 41989) (FRL-7301-5), under docket number OPP-2003-0092. Because EPA determined that there is no reasonable expectation of finite residues, under 40 CFR 180.6 the tolerances are no longer needed under the FFDCA, and they can therefore be revoked.

Generally, EPA will proceed with the revocation of these tolerances on the grounds discussed in Unit II.A., if one of these conditions applies, as follows:

1. Prior to EPA's issuance of a FFDCA section 408(f) order requesting additional data or issuance of a FFDCA section 408(d) or (e) order revoking the tolerances on other grounds, commenters retract the comment identifying a need for the tolerance to be retained.

2. EPA independently verifies that the tolerance is no longer needed.

3. The tolerance is not supported by data that demonstrate that the tolerance meets the requirements under FQPA.

This final rule does not revoke those tolerances for which EPA received comments stating a need for the tolerance to be retained. In the Federal Register of July 16, 2003 (68 FR 41989), EPA issued a proposed rule to revoke specific MMPE tolerances for residues of the insecticides aldicarb, carbofuran, diazinon, and dimethoate; herbicides atrazine, metolachlor, and sodium acifluorfen; fungicides fenarimol, propiconazole, and thiophanate-methyl; and the defoliant cacodylic acid; and to modify specific fenarimol tolerances. Also, the July 16, 2003, proposal provided a 60-day comment period which invited public comment for consideration and for support of tolerance retention under the FFDCA standards. In response to the proposal published in the Federal Register of July 16, 2003 (68 FR 41989), EPA received two comments as follows:

•  Comments . An individual from Michigan requested that the MMPE tolerances proposed for revocation not be revoked. Another individual from New Jersey requested that the aldicarb, cacodylic acid, and fenarimol MMPE tolerances proposed for revocation not be revoked. Both individuals expressed concern with pesticide use in general.

In addition, Syngenta Crop Protection objected to the revocation of poultry and egg tolerances for propiconazole. The Syngenta comment expressed a concern that the reregistration process for propiconazole might result in a requirement that new studies be conducted and that if new studies happen to show propiconazole residues of concern in/on these poultry and egg commodities, then tolerances might be needed.

•  Agency response . None of the comments addressed any of the available feeding studies that EPA reviewed in making its determinations that there are no reasonable expectations of finite residues for the MMPE tolerances in question. Nor did the comments take issue with the Agency's conclusion that the tolerances were no longer needed under 40 CFR 180.6. When EPA establishes tolerances for pesticide residues in or on raw agricultural commodities, consideration must be given to the possible residues of those active ingredients in MMPE commodities produced by animals that are fed agricultural products (for example, grain or hay) containing pesticide residues (40 CFR 180.6). When considering this possibility, EPA can conclude that there is a reasonable expectation that finite residues will not exist. Based on the available data, EPA made such a determination and believes that the tolerances revoked in this final rule are no longer needed.

Should future data be made available to EPA that shows pesticide residues of concern in or on the specific MMPE commodities associated with the tolerances revoked herein, then the Agency will evaluate all the available data, including the availability of a practicable analytical method to determine the pesticide residue. The Agency may conclude from such new data that finite residues will actually be incurred, or that it is not possible to establish with certainty whether finite residues will be incurred, but that there is a reasonable expectation of finite residues or no reasonable expectation of finite residues (40 CFR 180.6). Should EPA determine that a tolerance is needed, the Agency will take appropriate action to establish the tolerance.

1. Aldicarb . Based on available ruminant feeding and storage stability data, EPA determined that there is no reasonable expectation of finite residues of aldicarb and its carbamate metabolites in milk and livestock commodities. The associated tolerances are no longer needed under 40 CFR 180.6(a)(3). Therefore, EPA is revoking the tolerances in 40 CFR 180.269 for the combined residues of the insecticide and nematocide aldicarb (2-methyl-2-(methylthio)propionaldehyde O-(methylcarbamoyl) oxime and its cholinesterase-inhibiting metabolites 2-methyl 2-(methylsulfinyl) propionaldehyde O-(methylcarbamoyl) oxime and 2-methyl-2-(methylsulfonyl) propionaldehyde O-(methylcarbamoyl) oxime in or on the following: Cattle, fat; cattle, meat; cattle, meat byproducts; goat, fat; goat, meat; goat, meat byproducts; hog, fat; hog, meat; hog, meat byproducts; horse, fat; horse, meat; horse, meat byproducts; sheep, fat; sheep, meat; sheep, meat byproducts; and milk.

2. Atrazine . Based on available ruminant and poultry feeding data, EPA determined that there is no reasonable expectation of finite residues of atrazine in fat, meat, and meat byproducts of hogs and poultry; and eggs. These tolerances are no longer needed under 40 CFR 180.6(a)(3). Therefore, EPA is revoking the tolerances in 40 CFR 180.220 for residues of the herbicide atrazine in or on hog, fat; hog, meat; hog, meat byproducts; poultry, fat; poultry, meat; poultry, meat byproducts; and egg.

3. Cacodylic acid (dimethylarsinic acid) . Arsenic is ubiquitous and abundant in the environment. Studies show that arsenicals are methylated in animals to potentially significant levels of dimethyl arsonate (cacodylate). Also, available data show that background levels of cacodylate found in beef tissues and milk may substantially exceed those incurred from the maximum theoretical dietary burden from ingestion of feed stuffs derived from raw agricultural commodities treated with cacodylic acid at the maximum supported use rates. Based on all these data, EPA determined that tolerances for residues of cacodylic acid in beef tissues and milk are no longer needed under 40 CFR 180.6(a)(3). Therefore, EPA is revoking the tolerances in 40 CFR 180.311 for residues of the defoliant cacodylic acid (dimethylarsinic acid), expressed as As2O3, in or on cattle, fat; cattle, kidney; cattle, liver; cattle, meat; cattle meat byproducts, except kidney; and cattle meat byproducts, except liver.

In the Federal Register of July 16, 2003 (68 FR 41989), EPA issued a rule which proposed the tolerance revocations made in this final rule. The July 16, 2003 document proposed to revoke 105 tolerances. The proposal was signed on June 17, 2003. Later, in the Federal Register of July 1, 2003 (68 FR 39435) (FRL-7316-9), EPA made terminology revisions in 40 CFR 180.311 for cacodylic acid which created two tolerances for meat byproducts of cattle (cattle, meat byproducts, except kidney and cattle, meat byproducts, except liver, both at 0.7 ppm). This specific terminology revision was in error. The Agency considers the preferred terminology to be one tolerance; i.e. cattle, meat byproducts, except kidney and liver. While EPA is revoking both tolerances, the Agency will count them as one revocation in a total of 105 revocations in this final rule.

In the Federal Register of July 1, 2003 (68 FR 39435), EPA issued a final rule that revised specific tolerance nomenclatures, including the terminology for “cottonseed” to “cotton, undelinted seed” in 40 CFR 180.311, making the proposal in the Federal Register of July 16, 2003 (68 FR 41989) to revise cottonseed in 40 CFR 180.311 no longer needed.

4. Carbofuran . Based on available dairy cattle feeding data, EPA determined that there is no reasonable expectation of finite residues of carbofuran and its metabolites in fat, meat, and meat byproducts of cattle, goat, hog, horse, and sheep. These tolerances are no longer needed under 40 CFR 180.6(a)(3). Therefore, EPA is revoking the tolerances in 40 CFR 180.254 for the combined residues of the insecticide carbofuran (2,3-dihydro-2,2-dimethyl-7-benzofuranyl- N -methylcarbamate), its carbamate metabolite (2,3-dihydro-2,2-dimethyl-3-hydroxy-7-benzofuranyl- N -methylcarbamate), and its phenolic metabolites (2,3-dihydro-2,2-dimethyl-7-benzofuranol, 2,3-dihydro-2,2- dimethyl-3,-oxo-7-benzofuranol and 2,3-dihydro-2,2-dimethyl-3,7- benzofurandiol) in or on the following commodities: Cattle, fat (of which no more than 0.02 parts per million (ppm) is carbamates); cattle, meat (of which no more than 0.02 ppm is carbamates); cattle, meat byproducts (of which no more than 0.02 ppm is carbamates); goat, fat (of which no more than 0.02 ppm is carbamates); goat, meat (of which no more than 0.02 ppm is carbamates); goat, meat byproducts (of which no more than 0.02 ppm is carbamates); hog, fat (of which no more than 0.02 ppm is carbamates); hog, meat (of which no more than 0.02 ppm is carbamates); hog, meat byproducts (of which no more than 0.02 ppm is carbamates); horse, fat (of which no more than 0.02 ppm is carbamates); horse, meat (of which no more than 0.02 ppm is carbamates); horse, meat byproducts (of which no more than 0.02 ppm is carbamates); sheep, fat (of which no more than 0.02 ppm is carbamates); sheep, meat (of which no more than 0.02 ppm is carbamates); and sheep, meat byproducts (of which no more than 0.02 ppm is carbamates).

5. Diazinon . Based on available cattle dermal treatment and feeding data, EPA determined that there is no reasonable expectation of finite residues in or on meat and meat byproducts from the registered uses of cattle ear tags or from consumption of diazinon treated feed items by cattle. These tolerances are no longer needed under 40 CFR 180.6(a)(3). A tolerance for milk is not required as long as the ear tag labels maintain that use is for beef cattle and non-lactating dairy cattle, only. Therefore, EPA is revoking the tolerances in 40 CFR 180.153 for residues of the insecticide diazinon in or on cattle, meat (fat basis) and cattle, meat byproducts (fat basis).

6. Dimethoate . Metabolism and feeding studies in ruminants and poultry showed no detectable residues of dimethoate in muscle, fat, kidney, liver, milk, and egg samples. However, residues of omethoate, its oxygen analog, were found in liver and egg whites samples and residues of dimethoate carboxylic acid were found in liver, egg whites, and milk samples. Based on these available ruminant and poultry metabolism and feeding data, EPA determined that there is no reasonable expectation of finite residues of concern in meat, fat, and kidney of livestock (ruminants and poultry) from ingestion of dimethoate treated crop and feed items. These tolerances are no longer needed under 40 CFR 180.6(a)(3). Therefore, EPA is revoking the tolerances in 40 CFR 180.204 for total residues of the insecticide dimethoate ( O,O -dimethyl S-( N -methylcarbamoylmethyl) phosphorodithioate) including its oxygen analog ( O,O -dimethyl S-( N -methylcarbamoylmethyl) phosphorothioate) in or on the following commodities: Cattle, fat; cattle, meat; goat, fat; goat, meat; hog, fat; hog, meat; horse, fat; horse, meat; poultry, fat; poultry, meat; sheep, fat; and sheep, meat. Use of dimethoate on other commodities, including food and feed commodities, will be addressed in the “Report on FQPA Tolerance Reassessment Progress and Interim Risk Management Decision” (IRED), which EPA will complete in the near future.

Also, in 40 CFR 180.204, EPA is removing the “(N)” designation from all entries to conform to current Agency administrative practice (“(N)” designation means negligible residues).

7. Fenarimol . Fenarimol tolerances were reassessed according to the FQPA standard in the August 2002 “Report of the FQPA Tolerance Reassessment Progress and Risk Management Decision (TRED) for Fenarimol.” The Agency extrapolated data from a 28-day ruminant feeding study of exaggerated dietary burdens to the 1x feeding rate, and examined the expected impact of the average theoretical dietary burden from wet apple pomace (calculated using Food and Drug Administration monitoring data for apples). Of the currently registered uses of fenarimol, wet apple pomace is the only commodity considered a livestock feed item. (Dry apple pomace is no longer considered a significant feed item). For cattle, goats, horses, and sheep, the Agency concluded from monitoring, feeding, and metabolism data that tolerances for liver should be effectively decreased from 0.1 to 0.05 ppm and tolerances for meat byproducts should be increased from 0.01 to 0.05 ppm based on the highest residue found on an organ tissue; i.e., liver. Because both liver and meat byproduct tolerances were reassessed at the same level (0.05 ppm) for cattle, goats, horses, and sheep, the Agency recommended covering residues in liver by the reassessed tolerances for meat byproducts, revising each commodity terminology to “meat byproducts, except kidney,” and revoking existing liver tolerances at 0.1 ppm since they are no longer needed. EPA issued a finding in this TRED that these revised tolerances are safe, as required by section 408 of FFDCA.

Therefore, EPA is revoking the separate tolerances in 40 CFR 180.421 for residues of the fungicide fenarimol in or on cattle, liver; goat, liver; horse, liver; and sheep, liver. Also in 40 CFR 180.421, EPA is increasing the tolerances for the meat byproducts of cattle, goats, horses, and sheep, each from 0.01 to 0.05 ppm, respectively, and revising their commodity terminologies to cattle, meat byproducts, except kidney; goat, meat byproducts, except kidney; horse, meat byproducts, except kidney; and sheep, meat byproducts, except kidney, respectively.

Expected fenarimol residues in muscle, fat, and kidney are calculated from the 28-day data to be less than or near the enforcement method's limit of detection (0.003 ppm). Therefore, the Agency concluded that for muscle, fat, and kidney of ruminants it is not possible to establish with certainty whether finite residues will be incurred, but there is a reasonable expectation of finite residues under 40 CFR 180.6(a)(2). While EPA reassessed fenarimol tolerances for cattle, goats, horses, and sheep in the TRED, including meat, kidney, and fat tolerances at 0.01 ppm, the method limit of quantitation, the Agency will address them in a Federal Register document to be published in the near future.

In addition, the fenarimol tolerance for milk (0.003 ppm) should be revoked because residues in milk for dairy cattle are predicted to be significantly less than the enforcement method's limit of detection (0.001 ppm). Based on the available data, EPA determined that there is no reasonable expectation of finite residues of fenarimol in milk and that the tolerance is no longer needed under 40 CFR 180.6(a)(3). Therefore, EPA is revoking the tolerance in 40 CFR 180.421 for residues of the fungicide fenarimol in milk.

Moreover, EPA determined that there is no reasonable expectation of residue transfer to livestock commodities via consumption of fenarimol treated crop and feed items because no feed items for poultry and hogs are associated with active fenarimol registrations. The tolerances for eggs, poultry, and hogs are no longer needed and should be revoked. Therefore, EPA is revoking the tolerances in 40 CFR 180.421 for residues of the fungicide fenarimol in or on the following commodities: Egg; hog, fat; hog, kidney; hog, liver; hog, meat; hog, meat byproducts; poultry, fat; poultry, meat; and poultry, meat byproducts.

Furthermore, in order to conform to current Agency practice, in 40 CFR 180.421, EPA is revising the tolerance commodity terminology for “pecans” to “pecan.”

8. Metolachlor . Based on available ruminant feeding data and the maximum theoretical dietary burden for swine, EPA determined that there is no reasonable expectation of finite residues of metolachlor and its metabolites in fat, kidney, liver, meat, and meat byproducts of hogs. These tolerances are no longer needed under 40 CFR 180.6(a)(3). Therefore, EPA is revoking the tolerances in 40 CFR 180.368 for the combined residues (free and bound) of the herbicide metolachlor [2-chloro- N -(2-ethyl-6-methylphenyl)- N -(2-methoxy-1-methylethyl)acetamide] and its metabolites, determined as the derivatives, 2-[(2-ethyl-6-methylphenyl)amino]-1-propanol and 4-(2-ethyl-6-methylphenyl)-2-hydroxy-5-methyl-3-morpholinone, each expressed as the parent compound, in or on hog, fat; hog, kidney; hog, liver; hog, meat; and hog, meat byproducts, except kidney and liver.

9. Propiconazole . Based on available poultry metabolism and feeding data, EPA determined that there is no reasonable expectation of finite residues of propiconazole and its metabolites (determined as 2,4-dichlorobenzoic acid) in poultry muscle, liver, fat, and egg samples from hens fed 10X the maximum theoretical dietary burden for poultry. These tolerances are no longer needed under 40 CFR 180.6(a)(3). Therefore, EPA is revoking tolerances in 40 CFR 180.434 for the combined residues of the fungicide 1-[[2-(2,4-dichlorophenyl)-4-propyl-1,3-dioxolan-2-yl] methyl]-1H-1,2,4-triazole and its metabolites determined as 2,4-dichlorobenzoic acid and expressed as parent compound in or on egg; poultry, fat; poultry, kidney; poultry, liver; poultry, meat; and poultry, meat byproducts, except kidney and liver.

10. Sodium acifluorfen . Label restrictions prohibit use of sodium acifluorfen treated peanut and soybean forage or hay for feed and grazing livestock on these treated crops. As noted in a memorandum dated April 21, 2002, available under docket ID number OPP-2003-0092, EPA evaluated available ruminant and poultry metabolism data and determined that there is no reasonable expectation of residues being transferred to livestock commodities via consumption of feed items derived from crops treated with sodium acifluorfen according to current use directions. Based on the registered food/feed use patterns and metabolism data, EPA determined that there is no reasonable expectation of finite residues of sodium acifluorfen and its metabolites in eggs; kidney and liver of cattle, goats, hogs, horses, and sheep; fat, meat, and meat byproducts of poultry; and milk. These tolerances are no longer needed under 40 CFR 180.6(a)(3). Therefore, EPA is revoking the tolerances in 40 CFR 180.383 for combined residues of the herbicide sodium salt of acifluorfen (sodium 5-[2-chloro-4-trifluoromethyl) phenoxy]-2-nitrobenzoic acid) and its metabolites (the corresponding acid, methyl ester, and amino analogues) in or on the following commodities: Cattle, kidney; cattle, liver; egg; goat, kidney; goat, liver; hog, kidney; hog, liver; horse, kidney; horse, liver; milk; poultry, fat; poultry, meat; poultry, meat byproducts; sheep, kidney; and sheep, liver.

11. Thiophanate-methyl . Based on available ruminant and poultry feeding data, EPA determined that there is no reasonable expectation of finite residues of thiophanate-methyl, its oxygen analogue, and benzimidazole metabolites in fat, liver, meat, and meat byproducts of hogs and poultry. These tolerances are no longer needed under 40 CFR 180.6(a)(3). Therefore, EPA is revoking the tolerances in 40 CFR 180.371 for residues of the fungicide thiophanate-methyl (dimethyl[(1,2-phenylene)-bis(iminocarbonothioyl)] bis [carbamate]), its oxygen analogue dimethyl-4,4-o-phenylene bis(allophonate), and its benzimidazole-containing metabolites (calculated as thiophanate-methyl) in or on hog, fat; hog, liver; hog, meat; hog, meat byproducts, except liver; poultry, fat; poultry, liver; poultry, meat; and poultry, meat byproducts, except liver.

When EPA establishes tolerances for pesticide residues in or on raw agricultural commodities, the Agency gives consideration to possible pesticide residues in meat, milk, poultry, and/or eggs produced by animals that are fed agricultural products (for example, grain or hay) containing pesticide residues (40 CFR 180.6). When considering this possibility, EPA can conclude that:

1. Finite residues will exist in meat, milk, poultry and/or eggs, or

2. There is a reasonable expectation that finite residues will exist, or

3. There is a reasonable expectation that finite residues will not exist.

If there is no reasonable expectation of finite pesticide residues in or on meat, milk, poultry, or eggs, then tolerances do not need to be established for these commodities (40 CFR 180.6(b) and 40 CFR 180.6(c)). EPA has evaluated specific meat, milk, poultry, and egg tolerances in this final rule, concluded that there is no reasonable expectation of finite residues of the listed pesticide active ingredients in or on those commodities, and is revoking them.

Regarding the modification of specific fenarimol tolerances, EPA is required to determine whether each of the amended tolerances meets the safety standards under the FQPA. A safety finding determination is found in detail in the August 2002 TRED for fenarimol. An electronic copy of the TRED for fenarimol is available on EPA's website at http://www.epa.gov/pesticides/reregistration/status.htm .

These actions become effective on February 11, 2004. The Agency has determined that this revocation date allows users to continue utilizing existing pesticide stocks and that commodities treated with these pesticides in a manner that is lawful under FIFRA will continue to clear the channels of trade since there is no reasonable expectation of finite residues. Also, while certain individual liver tolerances for fenarimol are revoked, residues in/on liver of cattle, goat, horse, and sheep are covered by revised “meat byproduct, except kidney” tolerances.

In addition, because the modifications to specific fenarimol tolerances increased herein are safe, as required by section 408 of FFDCA, the Agency has determined that these modifications are effective on February 11, 2004.

By law, EPA is required by August 2006 to reassess the tolerances in existence on August 2, 1996. As of January 27, 2004, EPA has reassessed 6,628 tolerances. In this final rule, EPA is revoking 105 tolerances. These tolerances were previously reassessed and counted as described in Unit II.A.

In the July 1, 2003 version of 40 CFR 180.311, there are two cattle meat byproducts tolerances in the table in paragraph (a). However, when converting the text in 40 CFR 180.311 to tabular form, the tolerance for meat, fat, and meat byproducts, except kidney and liver, of cattle was erroneously published as two seperate entries. Therefore, for tolerance reassessment counting purposes, the meat byproducts tolerance for cattle was previously counted as one reassessment; i.e., cattle, meat byproducts, except kidney and liver.

EPA is working to ensure that the U.S. tolerance reassessment program under FQPA does not disrupt international trade. EPA considers Codex Maximum Residue Limits (MRLs) in setting U.S. tolerances and in reassessing them. MRLs are established by the Codex Committee on Pesticide Residues, a committee within the Codex Alimentarius Commission, an international organization formed to promote the coordination of international food standards. When possible, EPA seeks to harmonize U.S. tolerances with Codex MRLs. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain in a Federal Register document the reasons for departing from the Codex level. EPA's effort to harmonize with Codex MRLs is summarized in the tolerance reassessment section of individual REDs. The EPA has developed guidance concerning submissions for import tolerance support (65 FR 35069, June 1, 2000) (FRL-6559-3). This guidance will be made available to interested persons. Electronic copies are available on the internet at http://www.epa.gov/ . On the Home Page select “Laws, Regulations and Dockets,” then select “Regulations and Proposed Rules” and then look up the entry for this document under “ Federal Register —Environmental Documents.” You can also go directly to the “ Federal Register ” listings at http://www.epa.gov/fedrgstr/ .

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

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number OPP-2003-0344 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before April 12, 2004.

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

Mail your written request to: Office of the Hearing Clerk (1900C), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. You may also deliver your request to the Office of the Hearing Clerk in Rm.104, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA. The Office of the Hearing Clerk is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Office of the Hearing Clerk is (703) 603-0061.

2. Tolerance fee payment . If you file an objection or request a hearing, you must also pay the fee prescribed by 40 CFR 180.33(i) or request a waiver of that fee pursuant to 40 CFR 180.33(m). You must mail the fee to: EPA Headquarters Accounting Operations Branch, Office of Pesticide Programs, P.O. Box 360277M, Pittsburgh, PA 15251. Please identify the fee submission by labeling it “Tolerance Petition Fees.”

EPA is authorized to waive any fee requirement “when in the judgement of the Administrator such a waiver or refund is equitable and not contrary to the purpose of this subsection.” For additional information regarding the waiver of these fees, you may contact James Tompkins by phone at (703) 305-5697, by e-mail at tompkins.jim@epa.gov , or by mailing a request for information to Mr. Tompkins at Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.

If you would like to request a waiver of the tolerance objection fees, you must mail your request for such a waiver to: James Hollins, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.

3. Copies for the Docket . In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit IV.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in Unit I.B.1. Mail your copies, identified by docket ID number OPP-2003-0344, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. In person or by courier, bring a copy to the location of the PIRIB described in Unit I.B.1. You may also send an electronic copy of your request via e-mail to: opp-docket@epa.gov . Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

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

This final rule revokes and modifies tolerances established under section 408 of FFDCA. The Office of Management and Budget (OMB) has exempted these types of actions (i.e., modification of a tolerance and tolerance revocation for which extraordinary circumstances do not exist) from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866 due to its lack of significance, this rule is not subject to Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any special considerations as required by Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or OMB review or any other Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Pursuant to the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), the Agency previously assessed whether raising of tolerance levels or revocations of tolerances might significantly impact a substantial number of small entities and concluded that, as a general matter, these actions do not impose a significant economic impact on a substantial number of small entities. These analyses were published on May 4, 1981 (46 FR 24950) and on December 17, 1997 (62 FR 66020), respectively, and were provided to the Chief Counsel for Advocacy of the Small Business Administration. Taking into account these analyses, and the fact that there is no reasonable expectation that residues of the pesticides listed in this final rule will be found on the commodities discussed in this final rule (so that the lack of the tolerance could not prevent sale of the commodity), I certify that this action will not have a significant economic impact on a substantial number of small entities. Furthermore, the Agency knows of no extraordinary circumstances that exist as to the present revocations that would change EPA's previous analysis. In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. For these same reasons, the Agency has determined that this rule does not have any “tribal implications” as described in Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000). Executive Order 13175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.” This rule will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule.

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

EPA is publishing this rule without prior proposal because we view it as a noncontroversial action. We anticipate no significant adverse comments because, to our knowledge, no new treatment options have become available to treat these high concentration selenium wastes more effectively, and in the case of the two selenium-bearing hazardous wastes treated by CWM, we are making permanent a variance that is already in effect, and which has already been the subject of notice and opportunity for comment. Having said this, in the “Proposed Rules” section of today's Federal Register publication, we are publishing a separate document that could serve as a proposal to grant these variances to Heritage and CWM if significant adverse comments are filed. See the SUPPLEMENTARY INFORMATION section on how to submit comments.

This direct final rule will be effective on March 29, 2004 without further notice unless we receive adverse comment on the proposed rule by March 12, 2004. If we receive adverse comment on the direct final rule, we will withdraw the direct final action and the treatment variance for Heritage and restore the terms and conditions of the three year site-specific selenium treatment variance to CWM. We will address all public comments in a subsequent final rule based on this proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting on this direct final rule must do so at this time.

1. Docket. EPA has established an official public docket for this action under Docket ID No. RCRA-2003-0025. The official public docket 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 docket does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the OSWER Docket in the EPA Docket Center (EPA/DC), EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OSWER Docket is (202) 566-0272. The public may copy a maximum of 100 pages from any regulatory docket at no charge. Additional copies cost $0.15/page.

2. Electronic Access. You may access this Federal Register document electronically through the EPA Internet under the “ Federal Register ” listings at http://www.epa.gov/fedrgstr/.

An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Once in the system, select “search,” then key in the appropriate docket identification number.

Under section 3004(m) of the Resource Conservation and Recovery Act (RCRA), EPA is required to set “levels or methods of treatment, if any, which substantially diminish the toxicity of the waste or substantially reduce the likelihood of migration of hazardous constituents from the waste so that short-term and long-term threats to human health and the environment are minimized.” EPA interprets this language to authorize treatment standards based on the performance of best demonstrated available technology (BDAT). This interpretation was upheld by the DC Circuit in Hazardous Waste Treatment Council v. EPA, 886 F.2d 355 (DC Cir. 1989).

The Agency recognizes that there may be wastes that cannot be treated to levels specified in the regulations because an individual waste can be substantially more difficult to treat than those wastes the Agency evaluated in establishing the treatment standard. For such wastes, EPA has a process by which a generator or treater may seek a treatment variance ( see 40 CFR 268.44). If granted, the terms of the variance establish an alternative treatment standard for the particular waste at issue.

The current treatment standard for wastes exhibiting the toxicity characteristic for selenium is based upon the performance of stabilization treatment technology. When the Agency developed these treatment standards for selenium, EPA believed that wastes containing high concentrations of selenium were rarely generated and land disposed (62 FR 26041, May 12, 1997). The Agency also stated that it believed that, for most waste containing high concentrations of selenium, recovery of the selenium was feasible using recovery technologies currently employed by copper smelters and copper refining operations (Id.). The Agency further stated that it did not have any performance data for selenium recovery, but available information indicated that recovery of elemental selenium out of certain types of scrap material and other types of waste was practiced in the United States.

The Agency used performance data from the stabilization of a selenium characteristically hazardous mineral processing waste (waste code D010) to set the national treatment standard for selenium, which we determined at that time to be the most difficult to treat selenium waste. This untreated waste contained up to 700 ppm total selenium and 3.74 mg/L selenium in the TCLP leachate. The resulting post-treatment levels of selenium in the TCLP leachate were between 0.154 mg/L and 1.80, which led to our establishment of a national treatment standard of 5.7 mg/L for D010 selenium non-wastewaters. This D010 mineral processing waste also contained toxic metals ( i.e. , arsenic, cadmium, and lead) above characteristic levels. The treatment technology used to establish the selenium levels also resulted in meeting the LDR treatment standards for these non-selenium metals. The reagent to waste ratios varied from 1.3 to 2.7 (62 FR 26041, May 12, 1997).

In the Phase IV final rule, the Agency determined that a treatment standard of 5.7 mg/L, as measured by the TCLP, continued to be appropriate for D010 non-wastewaters (63 FR 28556, May 26, 1998). The Agency also changed the universal treatment standard (UTS) for selenium nonwastewaters from 0.16 mg/L to 5.7 mg/L.

When EPA established the treatment standards for metal wastes and mineral processing wastes (63 FR 28555, May 26, 1998), we noted that we received comments from one company, Chemical Waste Management Inc. (CWM), indicating that it was attempting to stabilize selenium-bearing wastes with concentrations much higher than those EPA had examined when it established the national treatment standard for wastes exhibiting the toxicity characteristic for selenium. In response, we indicated that for two high-level selenium waste streams, we would propose two site-specific treatment variances, which we granted on May 26, 1999 (63 FR 56886). EPA granted this variance for three years, and required CWM to conduct studies on approaches to further reduce the leachability of such treated wastes. EPA also required CWM to investigate alternative treatment technologies that might provide more effective treatment and remove the need for a treatment variance. EPA required CWM to report annually on these investigations and to provide any analytical data from the treatment studies. 1 The annual reports include stabilization recipes being utilized to meet the alternative treatment standards, the selenium concentrations in the untreated wastes and the analytical results from leach testing of the treated wastes. On May 28, 2002 (67 FR 36849), EPA renewed this variance for another three year term, and continued to require CWM to report on its treatability studies and to investigate whether more effective treatment is available.

Primary selenium  2 is a co-product in the mining of copper ores. The principal markets for selenium are in electronics (30%), glass manufacturing (20%), pigments (19%), metallurgical additives (14%) and agricultural/biological applications (6%). 3 In glass manufacturing, selenium is used to color container glass and other soda-lime silica glasses and to reduce solar heat transmission in architectural plate and automotive glass.

Because selenium is a non-renewable resource, and because the wastes in question contain high selenium concentrations, EPA's preference would be to recover the selenium in an environmentally sound manner over stabilization and land disposal. However, there was no recorded domestic production of secondary selenium in 2002. 4 All potential selenium recovery technologies being considered have remained pilot projects and none of them have been shown to be economically viable. These factors suggest that development of an environmentally protective secondary selenium recovery system in the U.S. is not reasonably expected in the near future. That leaves stabilization as the best available treatment technology.

Under 40 CFR 268.44(h), facilities can apply for a site-specific variance in cases where a waste that is generated under conditions specific to only one site cannot be treated to the specified levels. In such cases, the generator or treatment facility may apply to the Administrator, or to EPA's delegated representative, for a site-specific variance from a treatment standard. The applicant for a site-specific variance must demonstrate that, because the physical or chemical properties of the waste differ significantly from the waste analyzed in developing the treatment standard, the waste cannot be treated to the specified levels or by the specified methods. There are other grounds for obtaining treatment variances, but this is the only provision relevant to this action.

On May 14, 2003, Heritage Environmental Services submitted their petition for a treatment variance to EPA. All information and data used in the development of this treatment variance can be found in the RCRA docket (RCRA-2003-0025) for this rulemaking.

Guardian Industries Corp., in Jefferson Hills, Pennsylvania, is a specialty glass manufacturing facility. Emissions from its glass furnace are first subject to lime injection, and subsequently captured in an electrostatic precipitator. Lime is added to remove sulphur compounds and selenium from the glass furnace gases. Heritage stabilizes the selenium-bearing waste from Guardian at their RCRA permitted facility in Indianapolis, Indiana.

The Guardian waste is a dry powder with a bulk density of about 0.4 g/cm 3 , and contains no free liquids or organic constituents. The calcium content is high, approximately 30%, since the waste contains lime injected to the furnace exhaust. Concentrations of total selenium in the untreated waste vary between 10,000 ppm and 70,000 ppm (1%-7%). The dust is a D010 characteristic waste because the selenium concentration exceeds 1.0 mg/L, as measured by the TCLP. The rate of variation in the amount of waste is related to the demand, and ranges from 20-50 tons/month.

The land disposal restrictions found in 40 CFR 268.40(e) require characteristic wastes to meet the universal treatment standards (UTS) in 40 CFR 286.48 for all underlying hazardous constituents (UHCs) before the waste can be land disposed. Analytical data on the raw Guardian waste indicate that the only underlying hazardous constituent present is chromium; occasionally the dust is a D007 waste because the chromium exceeds the hazardous waste characteristic level of 5 mg/L, as measured by the TCLP. The universal treatment standard for chromium is 0.6 mg/L, as measured by the TCLP. As an underlying hazardous constituent, chromium must be treated to below the 0.6 mg/L universal treatment standard for the waste to be properly land disposed (45 FR 74889; November 12, 1980 and 52 FR 25942; July 9, 1987).

Selenium emissions from the Guardian glass furnace are captured by a lime scrubber. Lime treatment is used to remove sulphur compounds and selenium from the glass furnace gases. An approach to immobilize the selenium in the Guardian waste and to reduce its exposure to leaching agents is to stabilize it with cement. With this technology option, the waste is solidified into a solid of high compressive strength, thereby incorporating the hazardous components of the electrostatic precipitator dust into a solid matrix. The solid matrix substantially lowers the surface area potentially exposed to leaching from that of untreated dust. As a result, the solidified waste should have a lower leaching potential after the waste is disposed in a hazardous waste landfill.

As mentioned earlier, analytical data on the raw Guardian waste indicate that the only underlying hazardous constituent present is chromium. Heritage conducted treatability studies demonstrating that the addition of Portland cement alone is not sufficient to reduce the chromium levels to below the 0.6 mg/L treatment standard. To further treat the chromium in the waste, the hexavalent chromium ion must be reduced to the trivalent state so that precipitation can occur. Heritage used ferric sulfate for this purpose.

Heritage conducted approximately 200 preliminary rounds of testing using different stabilization recipes. Heritage then conducted additional tests using the stabilization recipes used by Chemical Waste Management (see Section III). Collectively, the TCLP tests on treated Guardian waste samples indicate a significant reduction in leachability. This reduction, however, is not enough to meet the LDR treatment standard of 5.7 mg/L, as measured by the TCLP.

EPA has determined, in analyzing the data from the preliminary tests, that the most effective stabilization recipe for this waste consists of 0.35 parts ferrous sulfate combined with 1.0 part cement and 1.0 part cement kiln dust, resulting in a reagent to waste ratio of 2.35 to 1. Water is also added to make a thick paste, that upon curing, solidifies the treated waste into a hard cementitious material.

Table I shows the results of leaching, as measured by the TCLP, of Guardian's waste treated using the optimized stabilization recipe. Heritage stabilized the samples with reagent to waste ratios of 2.35 to 1. Reagents included cement, cement kiln dust, and iron sulfate. Treated selenium TCLP concentrations for the five samples ranged from 28.4 mg/L to 35.6 mg/L.

The Coast Guard published an interim rule in the Federal Register of January 6, 2004, (69 FR 526) concerning Merchant Mariners Documents. An essential paragraph was inadvertently omitted from the “Background and Purpose” section. The omitted paragraph is needed to further clarify the Coast Guard's intentions governing the validation of merchant mariners' vital information and issuance of Merchant Mariner's Documents. This correction adds that paragraph.

In interim rule FR Doc. 03-32318, published January 6, 2004, (69 FR 526) make the following correction. On page 528, in the first column, following the paragraph ending in the word “appeal,” add the following paragraph:

To view comments as well as documents mentioned in this rule as available in the docket, go to http://dms.dot.gov at anytime and conduct a simple search using the docket number. You may also visit the Docket Management Facility in Room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays.

Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment if submitted on behalf of an association, business, labor union, etc.). You may review the Department of Transportation's Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477), or you may visit http://dms.dot.gov.

On July 25, 2003, the Department of Transportation (DOT) published a final rule entitled “Procedures for Transportation Workplace Drug and Alcohol Testing Programs: Drug and Alcohol Management Information System Reporting” in the Federal Register (68 FR 43946). This rule changed the annual Management Information System (MIS) submission format for employee drug and alcohol testing data for all DOT agencies and the Coast Guard through the use of a common (MIS) data collection form. The Coast Guard must conform to the DOT final rule and use the new DOT form to avoid duplication, conflict, or confusion with the DOT regulatory requirements. Therefore, the Coast Guard is amending its drug testing regulations in 46 CFR part 16 to conform to 49 CFR part 40.

The DOT rule reduced the number of data elements on the MIS reporting form to be submitted annually by individual marine employers. Employers will no longer have to submit:

1. The number of persons denied a position for a positive drug test;

2. The number of employees returned to duty following a drug violation;

3. Employee drug and alcohol training data;

4. Supervisor drug and alcohol training data;

5. Post-accident alcohol testing data; and

6. Reasonable cause alcohol testing data.

The DOT has stated that its agencies and the Coast Guard could continue to provide direction to their respective regulated employers regarding how, when, and where to report MIS data. This conforming rule is designed to correspond to the DOT MIS reporting regulations now contained in 49 CFR part 40. It requires the use of the new DOT MIS form for annual reporting. It also revises and clarifies the definition for “positive rate” in 46 CFR 16.105 to eliminate any confusion that reporting employers had regarding the types of tests to include in this calculation.

The Coast Guard is amending its chemical drug testing regulations in 46 CFR part 16 to conform to the DOT's final rule revising 49 CFR part 40 drug testing reporting procedures.

In § 16.500(b), we are changing form number CG-5573 to OMB form 2105-0529 issued October 28, 2003, and providing information on obtaining the new form.

The provisions of 49 CFR part 40 regarding alcohol testing and reporting of alcohol tests do not apply to the Coast Guard or to marine employers. Only the drug testing provisions of 49 CFR part 40 apply to the Coast Guard and marine employers. Therefore, alcohol testing information is not required or permitted to be submitted on the new form. Marine employers are required to submit alcohol testing information in accordance with 46 CFR part 4.

We are removing §§ 16.500 (a)(1) through (a)(10) because the drug testing information to be submitted is now specified in Appendix H to 49 CFR part 40.

Employers desiring to report MIS data electronically on the Internet can do so at http://www.uscg.mil/hq/g-m/moa/dapip.htm. Submitters must obtain a password from Mr. Robert C. Schoening, listed under FOR FURTHER INFORMATION CONTACT, for electronic submission.

The MIS form in Appendix H of 49 CFR part 40 may be downloaded from the U.S. Coast Guard Marine Safety, Security, and Environmental Protection Web site at http://www.uscg.mil/hq/g-m/moa/dapip.htm. The form will also be available from any Marine Safety Office.

This conforming amendment is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We expect the economic impact of this conforming amendment to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. The basis for the DOT rule was to “streamline” the (MIS) reporting requirements for all five agencies and the Coast Guard through the use of one reporting form, thereby eliminating the need for each agency to publish a separate NPRM.

The DOT issued a notice of proposed rulemaking (NPRM) in the Federal Register on September 30, 2002 (67 FR 61306), proposing the use of a new MIS form as well as a simplified explanation for form submission and completion. The majority of public comments and suggestions were in favor of the new rule. The final DOT rule mandating the use of the new MIS form was published in the Federal Register on July 25, 2003 (68 FR 43946).

Under section 213(a) of the Small Business Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this conforming amendment so that they can better evaluate its effects on them. If the amendment would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, contact Mr. Robert Schoening, Coast Guard, telephone (202) 267-1430.

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

The DOT's final rule contained information collection requirements that were submitted, as required by the Paperwork Reduction Act of 1995, (the PRA, 44 U.S.C. 3507(d)), to the Office of Information and Regulatory Affairs of the Office of Management and Budget (OMB) for review. Therefore, the DOT agencies and the Coast Guard will remove PRA requirements for the MIS form from their next PRA submission packages. In addition, the DOT will place its entire PRA package for the MIS form on the Internet when that submission is approved by OMB.

As stated in the DOT's final MIS rule, according to OMB's regulations implementing the PRA (5 CFR 1320.8(b)(2)(vi)), an agency may not conduct or sponsor, and a person need not respond to a collection of information unless it displays a currently valid OMB control number. The OMB control number for the DOT MIS form is 2105-0529, dated October 28, 2003.

A rule has implications 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 conforming amendment 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. This conforming amendment would not result in such an expenditure.

This conforming amendment 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 conforming amendment 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 conforming amendment under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This amendment is not economically significant and will not create an environmental risk to health or risk to safety that might disproportionately affect children.

This amendment 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 amendment 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 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. This rule changes the reporting requirements for submission of employee drug and alcohol testing. It is procedural in nature and therefore is categorically excluded, under figure 2-1, paragraph (34)(a), of the Instruction from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES.

This is a summary of the Report and Order adopted on November 13, 2003, and released on December 1, 2003. The full text of the Report and Order is 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. 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 .

1. In the Report and Order, the Commission addresses the obligation of mobile satellite services, telematics services, multi-line telephone systems, resold and pre-paid service, and disposable phones to provide enhanced 911 (E911) capabilities. Its analysis includes a discussion of the four criteria set out in the E911 Scope Further Notice of Proposed Rulemaking, 68 FR 3214 (January 23, 2003), released on December 20, 2002, and its understanding of whether the particular service meets those criteria as informed by the substantial record developed in the course of the proceeding. In addition, the Commission bases its determination on other criteria that may mitigate its need to impose a requirement on a particular service.

2. Mobile satellite service (MSS) carriers that provide interconnected two-way voice service must establish call centers for the purpose of answering 911 emergency calls and forwarding these calls to an appropriate PSAP. In addition, the Commission directs the rechartered Network Reliability and Interoperability Council to study a number of issues pertaining to MSS enhanced 911 deployment.

3. Telematics providers that offer a commercial wireless service may have E911 obligations and need to work with the underlying licensees to ensure that E911 requirements are met. Those providers that do not offer such services, while they do not have an obligation, should continue their efforts with industry and public safety stakeholders to implement advanced telematics safety capabilities.

4. Although the Commission will not adopt federal rules at this time requiring multi-line telephone systems (MLTS) operators to implement E911, it expects that states will act expeditiously on this topic. The Order also references the Model Legislation filed in the record by public safety organizations as a valuable guide. The Commission also issues a Second Further Notice of Proposed Rulemaking to continue its consideration of this issue, and to ensure that it is in a position to take appropriate action should states fail to do so or should it otherwise be warranted. Additionally, the Commission will issue a public notice in a year to examine states' progress on implementing E911 in this area.

5. Resold and pre-paid mobile wireless service providers have an independent obligation to comply with our 911 rules to the extent that the underlying licensee has deployed the technology necessary to deliver enhanced 911 service.

6. The Commission finds it is unnecessary to place a separate obligation on manufacturers of disposable phones or personal data assistants that contain a voice service component because the obligation for ensuring access to enhanced 911 service is with the wireless service provider, and they are responsible for ensuring that the devices used with their service satisfy their 911 obligations.

7. Automated maritime telecommunications systems (AMTS) are not required to comply with the Commission's rules because their service fails to meet the four criteria.

8. The Commission believes that these decisions represent a balanced approach, which takes into consideration the expectations of consumers, the need to strengthen Americans' ability to access public safety in times of crisis, and the needs of entities offering these services to be able to compete in a competitive marketplace.

9. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Revision of the Commission's rules to Ensure Compatibility With Enhanced 911 Emergency Calling Systems Further Notice of Proposed Rulemaking, 66 FR 31878 (June 13, 2001). The Commission sought written public comment on the proposal in the Further Notice of Proposed Rulemaking, including comment on the IRFA. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

10. In the Report and Order , the Commission modifies existing rules to broaden the scope of those rules to include new services that were either not in existence or were just beginning to emerge at the time of the rules' adoption. Specifically, the Commission, through the Report and Order , modifies its 911 rules to include within the scope of those rules certain mobile satellite service providers and resellers, including pre-paid calling card providers. The Commission takes this action in recognition of Congress' directive to “facilitate the prompt deployment throughout the United States of a seamless, ubiquitous, and reliable end-to-end infrastructure for communications, including wireless communications, to meet the Nation's public safety and other communications needs.” In addition, the Commission takes these actions to ensure consumers' expectations regarding access to enhanced 911 service are met, and to strengthen Americans' ability to access public safety. It has balanced those goals against the needs of entities offering these services to be able to compete in a competitive marketplace.

11. We received no comments directly in response to the IRFA in this proceeding. The Commission, however, considered the potential impact of its rules on smaller wireless service providers and in response to concerns expressed by some commenters, we adopted phase-in periods and decided in the case of certain small wireless handset manufacturers, such as disposable phone manufacturers, and smaller wireless service providers, such as automated maritime telecommunications service providers, not to impose an obligation at this time. The Commission believes that such actions should ensure that smaller entities operating in these areas are able to do so with minimal regulatory interference.

12. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the adopted rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under section 3 of the Small Business Act. Under the Small Business Act, a “small business concern” is one that: (i) Is independently owned and operated; (ii) is not dominant in its field of operation; and (iii) satisfies any additional criteria established by the Small Business Administration (SBA). A small organization is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.”

13. We have included small incumbent local exchange carriers in this present RFS analysis. As noted above, a “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard ( e.g. , a telephone communications business, having 1,500 or fewer employees), and “is not dominant in its field of operation.” The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent local exchange carriers are not dominant in their field of operation because any such dominance is not “national” in scope.

14. Incumbent Local Exchange Carriers. Neither the Commission nor the SBA has developed a specific small business size standard for providers of incumbent local exchange services. The closest applicable size standard under the SBA rules is for Wired Telecommunications Carriers. Under that standard, such a business is small if it has 1,500 or fewer employees. According to the FCC's Telephone Trends Report data, 1,337 incumbent local exchange carriers reported that they were engaged in the provision of local exchange services. Of these 1,337 carriers, an estimated 1,032 have 1,500 or fewer employees and 305 have more than 1,500 employees. Consequently, we estimate that the majority of providers of local exchange service are small entities that may be affected by the rules and policies adopted herein.

15. Competitive Local Exchange Carriers. Neither the Commission nor the SBA has developed a specific small business size standard for providers of competitive local exchange services. The closest applicable size standard under the SBA rules is for Wired Telecommunications Carriers. Under that standard, such a business is small if it has 1,500 or fewer employees. According to the FCC's Telephone Trends Report data, 609 companies reported that they were engaged in the provision of either competitive access provider services or competitive local exchange carrier services. Of these 609 companies, an estimated 458 have 1,500 or fewer employees and 151 have more than 1,500 employees. Consequently, the Commission estimates that the majority of providers of competitive local exchange service are small entities that may be affected by the rules.

16. Competitive Access Providers. Neither the Commission nor the SBA has developed a specific size standard for competitive access providers (CAPS). The closest applicable standard under the SBA rules is for Wired Telecommunications Carriers. Under that standard, such a business is small if it has 1,500 or fewer employees. According to the FCC's Telephone Trends Report data, 609 CAPs or competitive local exchange carriers and 35 other local exchange carriers reported that they were engaged in the provision of either competitive access provider services or competitive local exchange carrier services. Of these 609 competitive access providers and competitive local exchange carriers, an estimated 458 have 1,500 or fewer employees and 151 have more than 1,500 employees. Of the 35 other local exchange carriers, an estimated 34 have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that the majority of small entity CAPS and the majority of other local exchange carriers may be affected by the rules.

17. Local Resellers. The SBA has developed a specific size standard for small businesses within the category of Telecommunications Resellers. Under that standard, such a business is small if it has 1,500 or fewer employees. According to the FCC's Telephone Trends Report data, 133 companies reported that they were engaged in the provision of local resale services. Of these 133 companies, an estimated 127 have 1,500 or fewer employees and 6 have more than 1,500 employees. Consequently, the Commission estimates that the majority of local resellers may be affected by the rules.

18. Toll Resellers. The SBA has developed a specific size standard for small businesses within the category of Telecommunications Resellers. Under that SBA definition, such a business is small if it has 1,500 or fewer employees. According to the FCC's Telephone Trends Report data, 625 companies reported that they were engaged in the provision of toll resale services. Of these 625 companies, an estimated 590 have 1,500 or fewer employees and 35 have more than 1,500 employees. Consequently, the Commission estimates that a majority of toll resellers may be affected by the rules.

19. Interexchange Carriers. Neither the Commission nor the SBA has developed a specific size standard for small entities specifically applicable to providers of interexchange services. The closest applicable size standard under the SBA rules is for Wired Telecommunications Carriers. Under that standard, such a business is small if it has 1,500 or fewer employees. According to the FCC's Telephone Trends Report data, 261 carriers reported that their primary telecommunications service activity was the provision of interexchange services. Of these 261 carriers, an estimated 223 have 1,500 or fewer employees and 38 have more than 1,500 employees. Consequently, we estimate that a majority of interexchange carriers may be affected by the rules.

20. Operator Service Providers. Neither the Commission nor the SBA has developed a specific size standard for small entities specifically applicable to operator service providers. The closest applicable size standard under the SBA rules is for Wired Telecommunications Carriers. Under that standard, such a business is small if it has 1,500 or fewer employees. According to the FCC's Telephone Trends Report data, 23 companies reported that they were engaged in the provision of operator services. Of these 23 companies, an estimated 22 have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that a majority of local resellers may be affected by the rules.

21. Prepaid Calling Card Providers. The SBA has developed a size standard for small businesses within the category of Telecommunications Resellers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to the FCC's Telephone Trends Report data, 37 companies reported that they were engaged in the provision of prepaid calling cards. Of these 37 companies, an estimated 36 have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that a majority of prepaid calling providers may be affected by the rules.

22. Mobile Satellite Service Carriers. Neither the Commission nor the U.S. Small Business Administration has developed a small business size standard specifically for mobile satellite service 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. Currently, nearly a dozen entities are authorized to provide voice MSS in the United States. We have ascertained from published data that four of those companies are not small entities according to the SBA's definition, but we do not have sufficient information to determine which, if any, of the others are small entities. We anticipate issuing several licenses for 2 GHz mobile earth stations that would be subject to the requirements we are adopting here. We do not know how many of those licenses will be held by small entities, however, as we do not yet know exactly how many 2 GHz mobile-earth-station licenses will be issued or who will receive them. The Commission notes that small businesses are not likely to have the financial ability to become MSS system operators because of high implementation costs, including construction of satellite space stations and rocket launch, associated with satellite systems and services. Still, we request comment on the number and identity of small entities that would be significantly impacted by the proposed rule changes.

23. Other Toll Carriers. Neither the Commission nor the SBA has developed a specific size standard for small entities specifically applicable to “Other Toll Carriers.” This category includes toll carriers that do not fall within the categories of interexchange carriers, operator service providers, prepaid calling card providers, satellite service carriers, or toll resellers. The closest applicable size standard under the SBA rules is for Wired Telecommunications Carriers. Under that standard, such a business is small if it has 1,500 or fewer employees. According to the FCC's Telephone Trends Report data, 92 carriers reported that they were engaged in the provision of “Other Toll Services.” Of these 92 carriers, an estimated 82 have 1,500 or fewer employees and ten have more than 1,500 employees. Consequently, the Commission estimates that a majority of “Other Toll Carriers” may be affected by the rules.

24. Wireless Service Providers. The SBA has developed a size standard for small businesses within the two separate categories of Cellular and Other Wireless Telecommunications and Paging. Under these standards, such a business is small if it has 1,500 or fewer employees. According to the FCC's Telephone Trends Report data, 1,387 companies reported that they were engaged in the provision of wireless service. Of these 1,387 companies, an estimated 945 have 1,500 or fewer employees and 442 have more than 1,500 employees. Consequently, we estimate that a majority of wireless service providers may be affected by the rules.

25. The reporting, recordkeeping, or other compliance requirements adopted require that any and all of the affected entities to which the Commission's adopted rules apply must comply with the Commission's rules adopted in the Report and Order.

26. In paragraph 31 of the Report and Order that addresses mobile satellite systems (MSS), the Commission requires that MSS providers provide Emergency Call Center service to the extent that they offer real-time, two way switched voice service that is interconnected to the public switched network and utilize an in-network switching facility which enables the provider to reuse frequencies and/or accomplish seamless hand-offs of subscriber calls. The Commission declines to mandate specific procedural requirements for this call center service, and instead, is requiring that the Emergency Call Centers be capable of determining the emergency caller's phone number and location. These Call Centers are then required to transfer or redirect the emergency call to an appropriate public safety answering point. At paragraph 37, the Commission determines that although it intends to eventually apply enhanced 911 requirements to MSS providers subject to the foregoing call center requirements, there is not a sufficient basis in the record to require immediate E911 compliance.

27. In the telematics section of the Report and Order at paragraphs 64-90, the Commission declines to require that providers of standard telematics services, i.e. , those that do not offer a commercial wireless voice service (CMRS) that connects the telematics user to end users other than the telematics call center, comply with the Commission's E911 requirements. For those telematics providers that do offer CMRS, however, the Commission determines that they may have E911 obligations and will need to work with the underlying wireless carriers, so that regardless of the legal relationship between the carrier and the telematics provider the Commission's E911 requirements can be met.

28. For resellers and pre-paid calling providers, at paragraphs 91-100 of the Report and Order, the Commission decides that they have an independent obligation to comply with the Commission's 911 rules to the extent that the underlying licensee deploys the technology for E911 service. In paragraphs 101-104, the Commission finds that it is unnecessary to impose E911 obligations on manufacturers of disposable phone and personal digital assistants that contain a voice component.

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

30. In the Report and Order, the Commission adopted a phase-in period for resellers of wireless service to comply with its rules. This phase-in period was set to allow time for the wholesale price of wireless handsets capable of transmitting the required callback and location information to decline based on economies of scale; and to allow resellers sufficient time to make any necessary changes to their wireless handsets. This alternative will assist all affected licensees, and may be especially helpful to small entities that require more time to comply with the new rules. Additionally, instead of imposing a E911 Phase II requirement on resellers that considered its embedded base of handsets, as it did to licensees, the Commission only places a forward-looking requirement on resellers.

31. By tailoring its rules in this manner, the Commission seeks to fulfill its obligation of ensuring “a seamless, ubiquitous, and reliable end-to-end infrastructure for communications, including wireless communications, to meet the Nation's public safety and other communications needs.”

32. The Commission will send a copy of the Report and Order, including this FRFA, in a report to be sent to Congress pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the Order, including the FRFA, to the Chief Counsel for Advocacy of the Small Business Administration.

33. Pursuant to sections 1, 4(i), 7, 10, 201, 202, 208, 214, 222(d)(4)(A)-(C), 222(f), 222(g), 222(h)(1)(A), 222(h)(4)-(5), 251(e)(3), 301, 303, 308, and 310 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 157, 160, 201, 202, 208, 214, 222(d)(4)(A)-(C), 222(f), 222(g), 222(h)(1)(A), 222(h)(4)-(5), 251(e)(3), 301, 303, 308, 310, this Report and Order is hereby adopted.

34. The rule changes set forth will become effective April 12, 2004, with the exception of new rule § 25.284 which will become effective February 11, 2005.

35. The Commission's Office of Consumer and Government Affairs, Reference Information Center, shall send a copy of the Report and Order , including the Final Regulatory Flexibility Analysis and the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

This is a synopsis of the Commission's Memorandum Opinion and Order in MM Docket No. 01-131, and MM Docket No. 01-133 adopted December 18, 2003, and released January 8, 2004. The full text of this decision is available for inspection and copying during normal business hours in the FCC Reference Information Center at Portals II, CY-A257, 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy 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 qualixint@aol.com.

This is a synopsis of the Commission's Memorandum Opinion and Order in MM Docket No. 98-112, adopted January 8, 2004, and released January 22, 2004. The full text of this decision is available for inspection and copying during normal business hours in the FCC Reference Information Center at Portals II, CY-A257, 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy 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 qualixint@aol.com.

The standard and regulation that are subject to this correction are Federal Motor Vehicle Safety Standard (FMVSS) No. 301, Fuel system integrity , and 49 CFR part 586, Fuel System Integrity Upgrade Phase-In. In December 2003, we published a final rule upgrading the rear impact test in FMVSS No. 301. To increase the stringency of the standard in order to save more lives and prevent more injuries, the final rule replaces the current full rear impact test procedure performed at 48 km/h (30 mph) with an offset rear impact test procedure specifying that only a portion of the width of the rear of the test vehicle be impacted at 80 km/h (50 mph). Under the new rear impact procedure, a lighter, deformable barrier is used. The final rule also replaces the standard's lateral (side) impact test procedure with the procedure specified in the agency's side impact protection standard at an impact speed range of 53 ± 1 km/h.

The rear impact test requirements of the final rule are being phased-in over a period of three years beginning September 1, 2006. During the phase-in, increasing percentages of motor vehicles will be required to meet the upgraded rear impact test.

Finally, the final rule revises part 586 to establish Fuel System Integrity Upgrade Phase-In Reporting Requirements.

As published, the December 2003 final rule contained an error that needs correction. The final rule requires manufacturers of vehicles produced by more than one manufacturer to report to the agency the name of the manufacturer to which a vehicle will be attributed for purposes of the phase-in reporting. However, FMVSS No. 301, as amended by the final rule, references 49 CFR part 590 [Reserved], instead of part 586.

This correction amends S8.3.2 of FMVSS No. 301 to reference part 586.

The regulations that are the subject of this correction pertain to section 118 of the Marine Mammal Protection Act of 1972, as amended, which provides for exceptions for the taking of marine mammals incidental to certain commercial fishing operations from the Act's general moratorium on the taking of marine mammals.

This document corrects an unintended error. The definition of “negligible impact” in 50 CFR 229.2 simply refers to the definition of the same term in 50 CFR 228.3. The definition in 50 CFR 228.3 has been moved to 50 CFR 216.103. However, the definition in 50 CFR 229.2 still refers to 50 CFR 228.3. Therefore, in 50 CFR 229.2, the definition for “negligible impact” refers to § 228.3; the correct reference is § 216.103.

The Assistant Administrator finds that good cause exists to waive the requirement to provide prior notice and the opportunity for comment, pursuant to authority set forth at 5 U.S.C. 553(b)(B), as such procedures would be unnecessary. Prior notice and opportunity for comment are unnecessary because this amendment corrects an error in a reference to a section number in the regulations and will have a de minimus effect, if any, on the regulated community. This correction does not increase the scope of the regulated community. This correction does not increase the scope of the regulated community nor add new requirements. In addition, because this rule corrects a provision and makes non-substantive or de minimus changes to the regulations, the Assistant Administrator finds good cause under 5 U.S.C. 553(d) not to delay the effective date of this final rule for 30 days.

Because a general notice of proposed rulemaking is not required under 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. , are inapplicable.