On December 17, 1992, The United States, Canada and Mexico signed the North American Free Trade Agreement (NAFTA). The NAFTA entered into force on January 1, 1994, creating one of the largest trade areas in the world. Under the terms of the agreement, NAFTA allows for the temporary entry of qualified businesspersons from each of the parties to the agreement. Chapter 16 of the NAFTA is entitled A Temporary Entry of Business Persons, and in addition to reflecting the preferential trading relationship between the parties to the agreement, it reflects the member nations' desire to facilitate temporary entry on a reciprocal basis. It also establishes procedures for temporary entry, addresses the need to ensure border security and seeks to protect the domestic labor force in the member nations.

Chapter 16 of the NAFTA and Annex 1603 to Article 1603 of the NAFTA established four categories of businesspersons to be allowed temporary entry into the territory of another NAFTA party. The four categories are: (1) Business visitors; (2) traders and investors; (3) intra-company transferees; and (4) professionals.

Business visitors under the NAFTA are admitted to the United States under the B-1 nonimmigrant classification (section 101(a)(15)(B) of the Immigration and Nationality Act (Act)). A business visitor is a businessperson from another NAFTA party who seeks to engage in an occupation or profession with one of the seven categories of business activities listed in Appendix 1603.A.1. The seven categories of business activities listed in Appendix 1603.A.1 represent a complete business cycle and include: (1) Research and Design; (2) Growth, Manufacture and Production; (3) Marketing; (4) Sales; (5) Distribution; (6) After-Sales Service; and (7) General Service.

Traders and investors are admitted to the United States under the E-1 and E-2 nonimmigrant categories, respectively, under section 101(a)(15)(E) of the Act. A trader is an alien in the United States admitted soley to carry on trade of a substantial nature principally between the United States and the country of the alien's nationality. An investor is an alien who has invested or is actively in the process of investing a substantial amount of capital in a bona fide enterprise in the United States.

Intra-company transferees are admitted to the United States under the L-1 nonimmigrant classification (section 101(a)(15)(L) of the Act). An intra-company transferee is an alien who, within 3 years preceding the time of his or her application for admission into the United States, has been employed abroad continuously for 1 year by a firm or corporation or other legal entity or parent, branch, affiliate, or subsidiary, and who seeks to enter the United States temporarily to render his or her services to a branch of the same employer or as parent, affiliate, or subsidiary thereof in a capacity that is managerial, executive, or involves specialized knowledge.

Professionals under the NAFTA are admitted to the United States as Trade NAFTA (TN) nonimmigrant aliens under section 214(e) of the Act.

A TN nonimmigrant alien is a citizen of Canada or Mexico who seeks admission to the United States, under the provisions of Section D of Annex 1603 of the NAFTA, to engage in business activities at a professional level as provided for in such annex. The NAFTA parties have agreed that 63 occupations qualify as professions. These occupations are listed in the Appendix 1603.D.1 to Annex 1603 to the NAFTA found in 8 CFR 214.6(c). The list contains the only professions in which an alien can engage in and obtain admission to the United States as a TN nonimmigrant alien.

Appendix 1603.D.4 of the NAFTA, reflected in section 214(e)(4) and (5) of the Act, establishes an annual numerical ceiling of 5,500 on Mexican TN admissions. In order to accurately administer this cap, the Department has required the filing of Form I-129, Petition for Alien Worker. This rule eliminates the annual numerical cap for citizens of Mexico seeking a visa and admission as a TN nonimmigrant. Because this rule reflects the elimination of the numerical cap (as required by the provisions of the NAFTA), it will also eliminate the petition requirement, which has allowed the Department to manage the numerical limit. One requirement associated with the filing of the Form I-129 petition was the requirement of a certified labor condition application (LCA). Because the numerical cap is eliminated, these associated requirements are also eliminated.

Currently, a citizen of Mexico seeking to come to the U.S. as a TN nonimmigrant must have had submitted to the Department, on his or her behalf, a Form I-129, Petition for Nonimmigrant Worker. In order to properly file Form I-129 with the Department, an LCA must first be certified by the Department of Labor (DOL). Upon approval of the petition by the Department, the Mexican citizen must then apply to the United States Department of State (DOS) for a visa.

This rule eliminates the petition and LCA requirement. Rather than make application to the DOL and the Department, a Mexican citizen wishing to come to the U.S. in TN classification must apply directly to the DOS for a visa. DOS will adjudicate the alien's eligibility for TN classification, and upon approval and issuance of a visa the alien may apply for admission to the United States. While the Department will no longer collect a fee associated with the filing of Form I-129 since it is no longer required, the DOS may collect fees prescribed by their Secretary as consistent with the NAFTA.

At the time the NAFTA was negotiated, the agreement imposed the additional controls of the cap, petition, and LCA requirement on citizens of Mexico for a temporary period. In this case, the additional controls were put into place for 10 years. (These additional controls were not imposed on Canadian citizens.) Since the 10-year period will end on January 1, 2004, the Department will fulfill its obligations under the NAFTA by eliminating these requirements from its regulations.

As is currently the case, requests for an extension of stay and requests to add or change employers must be submitted on Form I-129. However, no LCA will be required in order to obtain an extension. It should be noted that the extension request made on Form I-129 is not a petition for status within the meaning of section 214(c)(1) of the Act and does not confer any of the appeal rights normally associated with a petition. Form I-129 is required to obtain an extension of stay. The Form I-129 in the context of an application for extension of stay is merely the vehicle by which the Department collects the information needed to make a determination on the extension application. Under 8 CFR 214.1(c)(5), there is no appeal of a denial of an application for extension of stay.

Yes. The consular office will make a determination as to whether the alien is eligible for the TN classification and issuance of visa. This determination replaces the former role of the Department in adjudicating the Form I-129 petition. Because the NAFTA does not change the requirement of a valid visa for a citizen of Mexico, this rule retains the existing requirement of a valid passport for Mexican TN's.

The Department of Homeland Security is seeking public comment regarding this interim rule. In particular, the Department is interested in comments addressing the lifting of the petition and labor certification requirements for Mexican citizens desiring TN status in the United States.

The Department's implementation of this rule as an interim rule, with provisions for post-promulgation public comments, is based on the “good cause” exceptions found at 5 U.S.C. 553(b)(B) and (d)(3). The reasons and necessity for the promulgation of this rule on January 1, 2004, are as follows: This rule is necessary to ensure that the Department is in compliance with the requirements placed upon the signatory nations that are parties to the NAFTA. As previously noted in this interim rule, the NAFTA requires the lifting of the annual cap of 5,500 Mexican TN professionals no longer than 10 years after the date the NAFTA became effective. Therefore, regardless of whether the Department promulgates regulations, the annual cap of Mexican TN professionals will sunset on January 1, 2004. By eliminating the cap and petition requirements now, the Executive Branch of the Federal Government will be in compliance with this requirement made by the NAFTA.

Adoption of this rule as an interim rule acknowledges the importance of equal treatment for both the Canadian and Mexican governments. In addition, the provisions of this interim rule will not have a negative affect on any qualified Mexican citizen seeking TN status, nor will it affect the qualified United States employer. The rule will eliminate one portion of the administrative process by which a qualified Mexican citizen may obtain TN status.

Accordingly, the Department believes that advance public notice and comment of this regulation is impracticable and contrary to the public interest. Therefore, there is good cause under 5 U.S.C. 553(b) and (d) for dispensing with the requirements of prior notice and to make this rule effective on January 1, 2004.

I have reviewed this rule, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)) and, by approving it, I certify that this rule will not have a significant economic impact on a substantial number of small entities. This rule affects only TN nonimmigrant individuals. These nonimmigrants are not considered small entities as that term is defined in 5 U.S.C. 601(6). This rule also affects U.S. employers of TN nonimmigrants, but does not create any new economic or procedural burdens for those entities. Although some petitioning businesses may be considered small businesses, this rule merely simplifies applicable procedures and eliminates certain filing requirements that in all likelihood will have a positive impact.

This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one-year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

This rule is considered by the Department of Homeland Security to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. Accordingly, this rule has been submitted to the Office of Management and Budget (OMB) for review.

In particular, the Department has assessed both the costs and benefits of this rule as required by Executive Order 12866, section 1(b)(6) and has made a reasoned determination that the benefits of this regulation justify its costs. Briefly, that assessment is as follows. This rule eliminates the numerical cap on TN admissions and eliminates certain filing requirements. This will eliminate the time and expense associated with these forms, and will also reduce the processing and waiting times associated with obtaining TN classification.

This rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

Under the Paperwork Reduction Act of 1995, Public Law 104-13, all Departments are required to submit to the Office of Management and Budget (OMB), for review and approval, any reporting or recordkeeping requirements inherent in a rule. This rule does not impose any new reporting or recordkeeping requirements under the Paperwork Reduction Act.

Transport Canada Civil Aviation (TCCA), which is the airworthiness authority for Canada, notified the FAA that an unsafe condition may exist on certain Bombardier Model DHC-8-401 and -402 airplanes. TCCA advises that, during an A-check on an affected airplane, an 8-inch crack was discovered on the fuselage skin in the vicinity of the forward Number 2 very high frequency (VHF) antenna. Further investigation revealed cracking on four of the eight cleats attaching the internal antenna support structure. Since the original report, cracked cleats were found on additional airplanes. Cracking of the fuselage skin, if not corrected, could result in rapid decompression of the airplane.

Bombardier approved Repair Drawing (RD) RD8/4-53-317, Issue 2, on December 13, 2002. The RD describes procedures for a temporary repair of cracks in the right-hand forward center fuselage skin panel at stringer 32S between stations X71.8 and X94.8. The repair involves cutting away damaged skin, replacing any other damaged structure with new parts, performing a detailed inspection for any remaining cracks, installing an external repair doubler with filler, and reprotecting bare areas.

Bombardier approved Modification Summary (ModSum) Package IS4Q5300001, Revision B, on March 17, 2003. The modification involves installing an external reinforcement doubler and replacing brackets at the Number 2 VHF antenna installation.

Bombardier approved Repair Drawing RD8/4-53-328, Issue 1, approved December 13, 2002, which describes procedures for replacing the support cleats with new cleats, part number (P/N) 85307891, at stringers 32S and 33, between stations X71.8 and X94.8.

Bombardier also approved ModSum 4-113458, Revision B-1, on September 17, 2003, which describes procedures for reinforcing the Number 2 VHF antenna support structure.

Bombardier issued Service Bulletin 84-53-32, Revision “B,” dated November 24, 2003, which provides instructions for incorporating Bombardier ModSum 4-113458.

Accomplishment of the applicable actions specified in the service information is intended to adequately address the identified unsafe condition. TCCA issued Canadian airworthiness directive CF-2003-28, dated November 28, 2003, to ensure the continued airworthiness of these airplanes in Canada.

This airplane model is manufactured in Canada and is type certificated for operation in the United States under the provisions of § 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, TCCA has kept the FAA informed of the situation described above. The FAA has examined the findings of TCCA, 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 prevent cracks in the lower fuselage skin due to fatigue damage in the vicinity of the Number 2 antenna, which could result in rapid decompression of the airplane. This AD requires a records review to determine repair/modification status. For airplanes on which neither Repair Drawing RD8/4-53-317 nor ModSum IS4Q5300001 has been incorporated, this AD requires repetitive detailed inspections for cracking of the external surface of the fuselage skin in the area around the Number 2 antenna and discrepancies (cracks, deformation in the area of the bend radius, and broken rivets) of the support cleats at stringers 32S and 33 between stations X71.8 and X94.8; replacement of all eight cleats with newly fabricated cleats, if any cleat is discrepant; and reinforcement of cracked fuselage skin. This AD also ultimately requires reinforcement of the Number 2 antenna support structure (and reinforcement of the fuselage skin around the Number 2 antenna, if not already done); the reinforcement actions terminate the repetitive inspections.

The Canadian airworthiness directive refers to “detailed visual inspections” for various discrepancies. We have determined that these procedures constitute “detailed inspections.” Note 1 in this AD defines this type of inspection.

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 2004-NM-11-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.

Transport Canada Civil Aviation (TCCA), which is the airworthiness authority for Canada, notified the FAA that an unsafe condition may exist on all Bombardier Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes. TCCA advises that there have been numerous failures of the engine throttle control gearbox; some of the failures resulted in an in-flight engine shutdown. Investigation revealed that when the throttle is in the climb/cruise position, the rack teeth inside the gearbox can become worn down. Such excessive wear of the engine throttle gearbox can alter the rigging position or cause the throttle to jam. Movement of the throttle towards the idle position brings it close to the fuel shut-off switch, which can cause the engine to flame out. This condition, if not corrected, could result in an in-flight engine shutdown.

Bombardier has issued Service Bulletin 601R-76-019, dated August 21, 2003, which describes procedures for inspections of the left and right engine throttle control gearboxes for certain wear values, and corrective action if necessary, as specified below:

• If the wear value is equal to or less than 0.006 inch (0.152 mm) on both gearboxes, no corrective action is necessary.

• If the wear value is 0.010 inch (0.254 mm) or greater on one or both engine throttle gearboxes, the service bulletin describes procedures for replacing the affected gearbox with a new or serviceable gearbox before further flight.

• If the wear values are between 0.006 inch (0.152 mm) and 0.010 inch (0.254 mm) on both engine throttle gearboxes, the service bulletin describes procedures for replacing the gearbox having the higher wear value with a new or serviceable gearbox before further flight, and replacing the gearbox having the lower wear value with a new or serviceable gearbox within the next 1,000 flight hours.

• If the wear values are between 0.006 inch (0.152 mm) and 0.010 inch (0.254 mm), on one engine throttle gearbox only, and the wear value on the other gearbox is equal to or less than 0.006 inch (0.152mm), the service bulletin describes procedures for replacing the affected gearbox (having wear values between 0.006 inch and 0.010 inch) with a new or serviceable gearbox within the next 1,000 flight hours.

All of the corrective actions specified above include rigging of the auto-throttle retarder control, and doing a functional test of the throttle system.

The service bulletin also recommends that, during the inspection, operators make sure that the bolt and the two screws on the throttle control rod are correctly torqued to 20-25 lbf-in (2.25-2.82 N m). If the torque is not correct, the service bulletin specifies tightening to the correct torque and sending a report of the wear value on the gearbox to Bombardier. Accomplishment of the actions specified in the Bombardier service bulletin is intended to adequately address the identified unsafe condition.

The Bombardier service bulletin references Trans Digm Inc., AeroControlex Group Service Bulletin 2100140-007-76-04, dated July 22, 2003, as an additional source of service information for accomplishment of the inspections and replacement.

TCCA classified the Bombardier service bulletin as mandatory and issued Canadian airworthiness directive CF-2004-01, dated January 21, 2004, to ensure the continued airworthiness of these airplanes in Canada.

These airplane models are manufactured in Canada and are type certificated for operation in the United States under the provisions of § 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, TCCA has kept us informed of the situation described above. We have examined the findings of TCCA, 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 prevent failure of the engine throttle control gearboxes, which could result in an in-flight engine shutdown. This AD requires repetitive inspections of the left and right engine throttle control gearboxes for wear, and corrective action if necessary. This AD also includes a reporting requirement. The actions are required to be accomplished in accordance with the service bulletin described previously, except as discussed below.

This AD allows flight with wear on one engine throttle gearbox, provided that (1) the wear value meets the specifications in Part A, paragraph B.(7), of the Accomplishment Instructions of the Bombardier service bulletin, and (2) established inspection procedures detect wear values at intervals permitting replacement of the engine throttle control gearbox before the gearbox exceeds the acceptable wear value.

The Canadian airworthiness directive and the service bulletin specify the applicability as Model CL-600-2B19 airplanes with serial numbers 7003 through 7067 inclusive, and 7069 through 7999 inclusive. However, we have determined that all Model CL-600-2B19 may be subject to the identified unsafe condition; therefore, this AD is applicable to “All Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes, certificated in any category.”

Although the service bulletin recommends returning discrepant gearboxes to the parts manufacturer, this AD does not contain such a requirement.

The Canadian airworthiness directive and the service bulletin do not define the type of inspection for wear of the engine throttle control gearboxes. We have clarified the inspection requirement contained in the AD as a detailed inspection. A note has been added to the AD to define that inspection.

The Canadian airworthiness directive and the service bulletin recommend accomplishing the initial inspection of the engine throttle control gearboxes within 1,000 flight hours, but this AD requires accomplishment within 1,000 flight hours or 90 days, whichever is first. We find that a compliance time of 1,000 flight hours might not provide enough time to maintain an adequate level of safety for the affected fleet for those operators having airplanes with a high number of flight hours every day. In developing an appropriate compliance time for this AD, we considered the degree of urgency associated with addressing the unsafe condition, and the maximum interval of time allowable for all affected airplanes to continue to operate without compromising safety. We find the specified compliance time to be appropriate for completing the initial inspection.

This AD is considered to be interim action. The reports that are required by this AD will enable the manufacturer to obtain better insight into the nature, cause, and extent of the wear of the engine throttle control gearbox, and eventually to develop final action to address the unsafe condition. Once final action has been identified, we may consider further 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 2004-NM-20-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 all Boeing Model 707 and 720 series airplanes was published in the Federal Register on November 25, 2003 (68 FR 66028). That action proposed to require inspection of the bolt forward of the wing front spar upper chord on the overwing support fittings of the inboard and outboard nacelle struts to verify that BACB30US type bolts are installed. If any other type of bolt is found, that action proposed to require replacement with a new BACB30US type bolt.

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 230 airplanes of the affected design in the worldwide fleet. The FAA estimates that 42 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 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 $2,730, 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 all BAE Systems (Operations) Limited Model BAe 146 series airplanes was published in the Federal Register on December 24, 2003 (68 FR 74532). That action proposed to require repetitive general visual inspections of the inside of the condenser regenerative air ducts, air cycle machine turbine outlet, and the jet pump ducts on each air conditioning pack to detect oil and/or oil breakdown products leaking from the engine(s) or auxiliary power unit (APU). That action also proposed to require further inspections and replacement of any affected engine, APU, or component with a serviceable part, if necessary.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments have been submitted on the proposed AD or on the determination of the cost to the public.

The FAA has carefully reviewed the available data and determined that air safety and the public interest require the adoption of the rule as proposed.

We consider this AD to be interim action. If final action is later identified, we may consider further rulemaking then.

The FAA estimates that 20 airplanes of U.S. registry will be affected by this AD, that it will take approximately 2 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 $2,600, or $130 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.

Transport Canada Civil Aviation (TCCA), which is the airworthiness authority for Canada, notified the FAA that an unsafe condition may exist on certain Bombardier Model DHC-8-102, -103, -106, -201, -202, -301, -311, and -315 airplanes. TCCA advises that field reports indicate that the ballscrew and nut assembly of the flap drive actuators may wear to the extent that the ballscrew mechanically disconnects from the ballnut. There have been four known incidents that involved actuator disconnect. The mechanical disconnection of the ballscrew from the ballnut can lead to binding of the flap system. If both actuators of an extended flap panel disconnect, the affected panel may be aerodynamically backdriven, resulting in asymmetric flaps. This condition, if not corrected, could result in loss of controllability of the airplane.

Analysis of new data indicates the need to reduce the current interval specified in the Bombardier Model DHC-8 maintenance program for measuring the backlash of the flap ballscrew actuators. Based on the new data, the FAA and TCCA have determined that this interval must be reduced from a “2C” check (currently a maximum of 10,000 flight hours) to a variable interval (a maximum of 3,000 flight cycles) that is based on each previous backlash measurement and actuator wear rate.

Bombardier has issued Alert Service Bulletin A8-27-98, dated February 20, 2003, which describes procedures for measuring the backlash of the flap actuators. The service bulletin also provides the means to calculate each subsequent interval for repeating the backlash measurement, based on the wear rate and previous backlash measurement. If a certain backlash length is exceeded, the service bulletin recommends replacing the actuator with a serviceable actuator before further flight.

Bombardier has revised certain procedures for lubricating the flap actuators, which are described in the temporary revisions (TRs) to the de Havilland Dash-8 Maintenance Program Manual listed in the following table:

Accomplishment of the actions specified in the service information is intended to adequately address the identified unsafe condition. TCCA mandated accomplishment of this service information and issued Canadian airworthiness directive CF-2002-26R1, dated October 6, 2003, to ensure the continued airworthiness of these airplanes in Canada.

These airplane models are manufactured in Canada 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, TCCA has kept the FAA informed of the situation described above. The FAA has examined the findings of TCCA, 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 prevent the mechanical disconnection of a flap actuator, which, if followed by failure of the panel's second actuator due to increased loading, could result in flap asymmetry and consequent loss of controllability of the airplane. This AD requires a one-time actuator lubrication, repetitive measurements (“checks”) of the backlash of the flap actuators, determination of each subsequent backlash check interval, and replacement of discrepant actuators with new or overhauled actuators if necessary. The actions are required to be accomplished in accordance with the service information described previously. The compliance times for the initial measurement range from 30 days to 3,000 total accumulated flight cycles on the actuator, with each subsequent interval ranging from 45 to 3,000 flight cycles, depending on each previous measurement and the wear rate. The FAA and TCCA agree on the following minor variations between the airworthiness directives:

1. Part A., paragraph 1., of the TCCA airworthiness directive mandates revising the TCCA-approved maintenance schedule by incorporating the applicable flap actuator lubrication task specified in the maintenance program manual TRs described previously. This (FAA) AD requires a one-time lubrication, but the lubrication maintenance schedule is not expressly required by this AD, because the lubrication schedule itself does not address the unsafe condition identified in this (FAA) AD. Rather, the lubrication schedule was established to reduce wear and tear on the flap actuators (thereby extending actuator life and decreasing costs).

2. Part A., paragraph 3., of the TCCA airworthiness directive mandates a specific compliance time, task card, and lubrication tools and grease for the lubrication. This (FAA) AD does not include these requirements, which are specified in the task card as part of the maintenance manual TRs (and specified in part A., paragraph 2., of the TCCA airworthiness directive); operators are expected to comply with the current, MRB-required task card. If an operator cannot comply with this AD because the specific grease or tools are unavailable within the required compliance time, the FAA may consider requests to extend the compliance time, as provided by paragraph (f) of this AD, if data are presented to justify such an extension.

3. The TCCA airworthiness directive mandates sending an inspection report to Bombardier or the actuator manufacturer (Hamilton Sundstrand). This (FAA) AD does not require such a report.

4. The TCAA airworthiness directive requires that certain actions be done “not later than during the next A-check.” Paragraph (a)(2) of this (FAA) AD identifies that interval as 500 flight hours, which for all affected operators is the same as the A-check.

5. In this (FAA) AD, Notes 1 through 12 of the TCCA airworthiness directive have been either excluded as redundant or incorporated as guidance into the requirements.

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-258-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) by superseding AD 2002-08-21, amendment 39-12733 (67 FR 21572, May 1, 2002), which is applicable to all EMBRAER Model EMB-135 and -145 series airplanes, was published in the Federal Register on December 3, 2003 (68 FR 67613). The action proposed to require repetitive inspections to detect discrepancies of both vertical-to-horizontal stabilizer bonding jumpers and the connecting support structure, corrective action if necessary, and modification of the bonding jumpers, including the installation of a protective cover to the elevator control cables, which would terminate the repetitive inspections.

We provided the public the opportunity to participate in the development of this AD. No comments have been submitted on the proposed AD or on the determination of the cost to the public.

We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed.

This AD affects about 360 airplanes of U.S. registry.

The actions that are currently required by AD 2002-08-21 take about 2 work hours per airplane, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of the currently required actions on U.S. operators is estimated to be $46,800, or $130 per airplane, per inspection cycle.

The terminating action required by this AD will take about 6 work hours per airplane, at an average labor rate of $65 per work hour. Required parts will cost about $206 per airplane. Based on these figures, the cost impact of the requirements of this AD on U.S. operators is estimated to be $214,560, or $596 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 .

The Luftfahrt-Bundesamt (LBA), which is the airworthiness authority for Germany, recently notified the FAA that an unsafe condition may exist on certain RRD TAY 611-8, TAY 620-15, TAY 650-15, and TAY 651-54 series turbofan engines. The LBA advises that they received two reports of ice-impact panels that separated from LP compressor cases during icing conditions and caused significant reductions of thrust in the engines. In one case, on a Fokker F.28 Mk. 0070, the panels separated almost simultaneously in both TAY 620-15 turbofan engines and reduced the thrust of the engines to the point that the airplane made an emergency, off-airport landing. That landing resulted in damage to the airplane landing gear and bottom side of the airplane fuselage. In the other case, the panels released on a single TAY 620-15 turbofan engine installed on a Fokker F.28 Mk.0100 airplane. The original configuration of ice-impact panels used 36 small ice-impact panels. Rolls-Royce, plc Service Bulletin (SB) No. TAY-72-1326 introduced six large panels instead of the 36 small panels. Repair procedures TV5451R or HRS3491 allow replacing six adjacent small panels of the 36-panel configuration with a single large panel.

We have reviewed and approved the technical contents of RRD SB No. TAY-72-1627, Revision 2, dated February 5, 2004; and RRD SB No. TAY-72-1631, dated February 6, 2004; that describe procedures for inspecting, and if necessary, replacing the ice-impact panels on the LP compressor case. The LBA classified these service bulletins as mandatory and issued AD D-2004-055R1, dated January 24, 2004; and AD D-2004-090, dated February 12, 2004; in order to ensure the airworthiness of these RRD engines in Germany.

The RRD SBs specify calendar dates for the compliance times. We have included compliance times based on engine cycles with the calendar date as an end date. We used a risk analysis from RRD to determine the engine cycles for the compliance times.

This engine model is manufactured in Germany and is type certificated for operation in the United States under the provisions of § 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Under this bilateral airworthiness agreement, the LBA has kept us informed of the situation described above. We have examined the findings of the LBA, 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.

The unsafe condition described previously is likely to exist or develop on other RRD TAY 611-8, TAY 620-15, TAY 650-15, and TAY 651-54 series turbofan engines of the same type design. We are issuing this AD to prevent release of ice-impact panels due to improper bonding that can result in loss of thrust in both engines. This AD requires inspecting, and if necessary replacing, ice-impact panels on the LP compressor cases. You must use the service information described previously to perform the actions required by this AD.

Since an unsafe condition exists that occurs during icing conditions, and the compliance times for the actions equate to about two months after the effective date of this AD, we require the immediate adoption of this AD. We have found that notice and opportunity for public comment before issuing this AD are impracticable, and that good cause exists for making this amendment effective in less than 30 days.

On July 10, 2002, we issued a new version of 14 CFR part 39 (67 FR 47998, July 22, 2002), which governs our AD system. This regulation now includes material that relates to special flight permits, alternative methods of compliance, and altered products. 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.

These actions are interim actions and we may take further rulemaking actions in the future.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to submit any written relevant data, views, or arguments regarding this AD. Send your comments to an address listed under ADDRESSES . Include “AD Docket No. 2004-NE-11-AD” in the subject line of your comments. If you want us to acknowledge receipt of your mailed comments, send us a self-addressed, stamped postcard with the docket number written on it; we will date-stamp your postcard and mail it back to you. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify it. If a person contacts us verbally, and that contact relates to a substantive part of this AD, we will summarize the contact and place the summary in the docket. We will consider all comments received by the closing date and may amend the AD in light of those comments.

We are reviewing the writing style we currently use in regulatory documents. We are interested in your comments on whether the style of this document is clear, and your suggestions to improve the clarity of our communications with you. You may get more information about plain language at http://www.faa.gov/language and http://www.plainlanguage.gov.

You may examine the AD Docket (including any comments and service information), by appointment, between 8 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays. See ADDRESSES for the location.

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

For the reasons discussed above, I certify that the regulation:

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. 2004-NE-11-AD” in your request.

A proposal to amend 14 CFR part 39 by superseding AD 89-21-01, Docket No. 89-ASW-53, Amendment 39-6562 (55 FR 12332, April 3, 1990), for the specified ECF model helicopters was published in the Federal Register on May 16, 2003 (68 FR 26552). AD 89-21-01 requires inspecting the bearing for play or binding, proper assembly and lubrication, and measuring the swashplate rotational torque. In addition, that AD requires plugging the nonrotating swashplate vent holes and barrel nut orifices at specified hours TIS. The requirements of that AD are intended to prevent failure of the bearing, which could result in loss of control of the helicopter.

Since issuing that AD, an FAA inspector reports that the repetitive lubrication requirement in paragraph (c) of AD 89-21-01 requiring lubrication “within every 100 hours' additional time-in-service” is being misinterpreted by a certain operator to only require lubrication every 199 hours rather than the intended 100-hour interval. Therefore, the inspector recommends that AD 89-21-01 be rewritten to clearly state that lubrication of the bearings be required at intervals not to exceed 100 hours TIS. To remove any doubt as to the intended lubrication interval, we have made the suggested changes. The additional requirements contained in AD 89-21-01 for inspecting and servicing the main rotor swashplate are no longer necessary because they are contained currently in the mandatory Airworthiness Limitations section of the Eurocopter Master Servicing Recommendations (maintenance manual) for the Model AS 350, dated April 26, 2001, and for the Model AS 355, dated May 31, 2001.

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 suggests that current maintenance instructions are adequate and that no change to the AD is necessary. The FAA concurs with the comment; however, this change to the AD is necessary to clarify the correct maintenance action.

After careful review of the available data, including the comment noted above, the FAA has determined that air safety and the public interest require adopting the rule as proposed except the labor rate is now estimated to be $65 per work hour rather than $60 as stated in the proposal. The FAA has determined that this change will only minimally increase the economic burden on any operator ($60 per year per helicopter) and will not increase the scope of the AD.

The FAA estimates that this AD will affect 587 helicopters of U.S. registry and that it will take approximately 2 work hours per helicopter to accomplish at an average labor rate of $65 per work hour. Based on these figures, we estimate the total cost impact of the AD on U.S. operators to be $457,860.

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 at the FAA, Office of the Regional Counsel, Southwest Region, 2601 Meacham Blvd., Room 663, Fort Worth, Texas.

In the Federal Register of June 18, 2003 (68 FR 36676), we (FDA) issued a final rule that amended our patent submission and listing requirements. The final rule revised the regulations regarding the effective date of approval for ANDAs and certain other NDAs, known as 505(b)(2) applications, submitted under the Federal Food, Drug, and Cosmetic Act (the act). In certain situations, Federal law bars FDA from making the approval of certain ANDAs and 505(b)(2) applications effective for 30 months if the applicant has certified that a patent claiming the drug is invalid or will not be infringed and the patent owner or NDA holder then sues the applicant for patent infringement. The final rule stated that there was only one opportunity for a 30-month stay of the approval date of each ANDA and 505(b)(2) application. The final rule also clarified the types of patents that must and must not be submitted to FDA and revised the declaration that NDA applicants must submit to FDA regarding patents to help ensure that NDA applicants submit only appropriate patents. The final rule became effective on August 18, 2003.

On December 8, 2003, the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (Public Law 108-173) was signed into law. Title XI, Access to Affordable Pharmaceuticals, subtitle A, section 1101 (Public Law 108-173) contains provisions that supersede sections of the regulation issued in the June 18, 2003, final rule (68 FR 36676). The new statutory provisions address the effective date of approval for certain ANDAs and 505(b)(2) applications and prohibit approval for 30 months if the applicant has certified that a patent claiming the drug is invalid or will not be infringed, and the patent owner or NDA holder then sues the applicant for patent infringement. The effective date of these provisions was made retroactive to August 18, 2003. The new statutory provisions address the applicability of 30-month stays in approval of certain ANDAs and 505(b)(2) applications in a different manner than our final rule, which was issued under statutory language now superseded.

Therefore, certain regulations issued in the final rule published on June 18, 2003 (68 FR 36676) are superseded by the new statutory provisions. The affected sections of the regulation are 21 CFR 314.52(a)(3) and 21 CFR 314.95(a)(3) that stay the effective date of approval for certain ANDAs and 505(b)(2) applications for 30 months in certain situations.

In accordance with the new statutory provisions, we are revoking the applicable sections of the regulation. Publication of this document constitutes final action under the Administrative Procedure Act (5 U.S.C. 553(b)(3)(B)).

FDA is making the following changes in several regulations concerning medical devices and radiological health to correct errors, and update addresses and form numbers:

1. FDA is revising 21 CFR 803.18(e) to eliminate a reference to 21 CFR 820.162, a section which no longer exists.

2. FDA is amending §§ 806.10(f), 820.198(d), and 820.200(c) to eliminate references to 21 CFR part 804, a part which no longer exists.

3. FDA is revising the FDA forms numbers listed in certain sections of part 807 (21 CFR part 807), specifically §§ 807.22, 807.25, 807.26, 807.30, 807.35, and 807.37, to identify the forms correctly.

4. FDA is updating the address in § 807.22 (a).

5. FDA is amending § 807.26 to conform to FDA's existing procedure. Changes made between annual registration periods are now done by submitting a letter and need not be submitted on a specific form.

6. FDA is updating the address in § 807.37 (a) and (b)(2).

7. FDA is amending § 807.30 by removing references to block numbers for FDA forms. FDA has changed these forms from time to time and, therefore, the numbers are no longer accurate.

8. FDA is amending § 814.39 by moving part of § 814.39(f) to § 814.39(e). This paragraph was inadvertently placed in paragraph (f) after an amendment published on October 8 1998 (63 FR 54043).

9. FDA is amending § 1005.3 by replacing the references to section 358 of the act with section “534 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360kk).” This correction conforms to the redesignation of this section by the Safe Medical Devices Act of 1990.

The agency has determined under 21 CFR 25.30(i) that this final rule 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 was required. The changes in these amendments do not alter this conclusion.

On November 26, 2003 (68 FR 66534), HUD published a final rule adopting the Interagency Suspension and Debarment Committee's NCR, Drug-Free Workplace regulations and enacting agency specific additions to those common rules. In four instances, agency specific provisions were not inserted where necessary to comport with the common rule format.

On March 19, 2003, we published a rule in the Federal Register (68 FR 13228) creating temporary § 165.T11-078 of Title 33 of the Code of Federal Regulations (CFR). Under temporary § 165.T11-078, which expired at 11:59 p.m. P.d.t. on September 30, 2003, the Coast Guard established 25-yard fixed security zones around all piers, abutments, fenders and pilings of the Golden Gate Bridge and the San Francisco-Oakland Bay Bridge, San Francisco Bay, California.

On September 25, 2003, a change in effective period temporary rule was published in the Federal Register (68 FR 55312) under the same previous temporary section 165.T11-078, extending the rule to 11:59 p.m. P.s.t. on March 31, 2004.

On November 25, 2003, we published a notice of proposed rulemaking (NPRM) in the Federal Register (68 FR 66064), proposing to establish permanent, fixed security zones extending 25 yards in the U.S. navigable waters around all piers, abutments, fenders and pilings of the Golden Gate Bridge and the San Francisco-Oakland Bay Bridge, San Francisco Bay, California. We received no letters commenting on the proposed rule. No public hearing was requested, and none was held.

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

The Captain of the Port will enforce these zones and may enlist the aid and cooperation of any Federal, State, county, municipal, and private agency to assist in the enforcement of the regulation.

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

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

In this particular rulemaking, to address the aforementioned security concerns and to take steps to prevent the catastrophic impact that a terrorist attack against the Golden Gate Bridge or San Francisco-Oakland Bay Bridge would have on the public, the Coast Guard is establishing fixed security zones extending 25 yards in the U.S. navigable waters around all piers, abutments, fenders and pilings. These security zones help the Coast Guard to prevent vessels or persons from engaging in terrorist actions against these two bridges. In addition to restricting access to critical parts of bridge structures, these security zones provide necessary standoff distance for blast and collision, a surveillance and detection perimeter, and a margin of response time for security personnel.

This rule prohibits entry of any vessel or person inside the security zone without specific authorization from the Captain of the Port or his designated representative. Due to heightened security concerns, and the catastrophic impact a terrorist attack on one of these bridges would have on the public, the transportation system, and surrounding areas and communities, security zones are prudent for these structures.

We received no letters commenting on this rule. No public hearing was requested, and none was held. Accordingly, we have not changed our final rule from the rule we proposed in November 2003.

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

We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. Although this rule restricts access to the waters encompassed by the security zones, the effect of this rule is not significant because: (i) the zones encompass only a small portion of the waterway; (ii) vessels are able to pass safely around the zones; and (iii) vessels may be allowed to enter these zones on a case-by-case basis with permission of the Captain of the Port or his designated representative.

The size of the zones is the minimum necessary to provide adequate protection for the bridges. The entities most likely to be affected are commercial vessels transiting the main ship channel en route to the San Francisco Bay and Delta ports, fishing vessels, and pleasure craft engaged in recreational activities and sightseeing.

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. We expect this rule may affect owners and operators of private vessels, some of which may be small entities, intending to fish or sightsee near bridge pilings or abutments affected by these security zones. The security zones will not have a significant economic impact on a substantial number of small entities for several reasons: small vessel traffic will be able to pass safely around the area and vessels engaged in recreational activities, sightseeing and commercial fishing have ample space outside of the security zones to engage in these activities. Small entities and the maritime public will be advised of these security zones via public notice to mariners.

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

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

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

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

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

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

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

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

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

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

We have analyzed this rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation because we are establishing a security zone. An “Environmental Analysis Check List” and a “Categorical Exclusion Determination” (CED) 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 producers (NAICS 111)

• Animal producers (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. 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-2004-0028. 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.

EPA, on its own initiative, in accordance with sections 408(e) and 408(l)(6) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, is establishing a tolerance for residues of the insecticide pyriproxyfen, 2-[1-methyl-2(4-phenoxyphenoxy) ethoxypyridine], in or on celery at 2.5 parts per million (ppm). This tolerance will expire and is revoked on June 30, 2007. EPA will publish a document in the Federal Register to remove the revoked tolerance from the Code of Federal Regulations.

Section 408(l)(6) of the FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under section 18 of FIFRA. Such tolerances can be established without providing notice or period for public comment. EPA does not intend for its actions on section 18 related tolerances to set binding precedents for the application of section 408 of the FFDCA and the new safety standard to other tolerances and exemptions. Section 408(e) of the FFDCA allows EPA to establish a tolerance or an exemption from the requirement of a tolerance on its own initiative, i.e., without having received any petition from an outside party.

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

Section 18 of the FIFRA authorizes EPA to exempt any Federal or State agency from any provision of FIFRA, if EPA determines that “emergency conditions exist which require such exemption.” This provision was not amended by the Food Quality Protection Act of 1996 (FQPA). EPA has established regulations governing such emergency exemptions in 40 CFR part 166.

None of the currently registered alternatives were effective in controlling the severe greenhouse whitefly ( Trialeurodes vaporariorum ) and silverleaf whitefly ( Bemisia argentifolii ) infestations that occurred on California celery 2001-02 where some fields experienced a 100% loss. The state estimates that California celery growers, without pyriproxyfen, would lose $1,493 per acre for the coming season. For the affected 11,000 acres this would represent a loss of $16,423,000. EPA has authorized under FIFRA section 18 the use of pyriproxyfen on celery for control of greenhouse whitefly ( Trialeurodes vaporariorum ) and silverleaf whitefly ( Bemisia argentifolii ) in California. After having reviewed the submission, EPA concurs that emergency conditions exist for this State.

As part of its assessment of this emergency exemption, EPA assessed the potential risks presented by residues of pyriproxyfen in or on celery. In doing so, EPA considered the safety standard in section 408(b)(2) of the FFDCA, and EPA decided that the necessary tolerance under section 408(l)(6) of the FFDCA would be consistent with the safety standard and with FIFRA section 18. Consistent with the need to move quickly on the emergency exemption in order to address an urgent non-routine situation and to ensure that the resulting food is safe and lawful, EPA is issuing this tolerance without notice and opportunity for public comment as provided in section 408(l)(6) of the FFDCA. Although this tolerance will expire and is revoked on June 30, 2007, under section 408(l)(5) of the FFDCA, residues of the pesticide not in excess of the amounts specified in the tolerance remaining in or on celery after that date will not be unlawful, provided the pesticide is applied in a manner that was lawful under FIFRA, and the residues do not exceed a level that was authorized by this tolerance at the time of that application. EPA will take action to revoke this tolerance earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe.

Because this tolerance is being approved under emergency conditions, EPA has not made any decisions about whether pyriproxyfen meets EPA's registration requirements for use on celery or whether a permanent tolerance for this use would be appropriate. Under these circumstances, EPA does not believe that this tolerance serves as a basis for registration of pyriproxyfen by a State for special local needs under FIFRA section 24(c). Nor does this tolerance serve as the basis for any State other than California to use this pesticide on this crop under section 18 of FIFRA without following all provisions of EPA's regulations implementing FIFRA section 18 as identified in 40 CFR part 166. For additional information regarding the emergency exemption for pyriproxyfen, contact the Agency's Registration Division at the address provided under FOR FURTHER INFORMATION CONTACT .

EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. For further discussion of the regulatory requirements of section 408 of the FFDCA and a complete description of the risk assessment process, see the final rule on Bifenthrin Pesticide Tolerances (62 FR 62961, November 26, 1997) (FRL-5754-7).

Consistent with section 408(b)(2)(D) of the FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of pyriproxyfen and to make a determination on aggregate exposure, consistent with section 408(b)(2) of the FFDCA, for a time-limited tolerance for residues of pyriproxyfen in or on celery at 2.5 ppm. EPA's assessment of the dietary exposures and risks associated with establishing the tolerance follows.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. The no observed adverse effect level (NOAEL) and the lowest observed adverse effect level (LOAEL) from the toxicity studies reviewed as well as the nature of the toxic effects caused by pyriproxyfen are discussed in Unit III.A. of the Federal Registers of June 5, 2001 (66 FR 30065) (FRL-6782-5), August 28, 2002 (67 FR 55150) (FRL-7195-7), and March 7, 2003 (68 FR 10972) (FRL-7289-6).

Refer to the March 7, 2003, Federal Register document for a detailed discussion of the aggregate risk assessments and determination of safety. EPA relies upon that risk assessment and the findings made in the Federal Register document in support of this action. Below is a brief summary of the aggregate risk assessment, including this use on celery.

EPA assessed risk scenarios for pyriproxyfen under chronic and intermediate and short-term (residential) scenarios. Because there were no acute endpoints identified, an acute risk assessment was not conducted. Nor was a cancer aggregate risk assessment conducted, because pyriproxyfen is classified as “not likely” to be a human carcinogen.

The Dietary Exposure Evaluation Model (DEEM TM ) analysis evaluated the individual food consumption as reported by respondents in the Department of Agricultural (USDA) 1994-1996 and 1998 nationwide Continuing Surveys of Food Intake by Individuals (CSFII) and accumulated exposure to the chemical for each commodity.

The following assumptions were made for the chronic exposure assessments: Published and proposed tolerance level residues and 100% crop treated were assumed for all commodities, and the default processing factors were applied.

Using these exposure assumptions, EPA concluded that pyriproxyfen chronic exposures from food consumption are below levels of concern ( < 100% of the chronic Population Adjusted Dose (cPAD)) for the general U.S. population and all population subgroups. The cPAD utilized for the most highly exposed subgroup (children 1-2 years old) is 4%. Chronic risk from dietary exposure for infants ( < 1 year old) and children (6-12 years old) each utilize 2.0% of the cPAD. Chronic dietary risk for the general U.S. population is 1.0% of the cPAD. In addition, despite the potential for chronic dietary exposure to pyriproxyfen in drinking water, after calculating drinking water levels of concern (DWLOCs) and comparing them to conservative model estimated environmental concerns (EEC) of pyriproxyfen in surface and ground waters, EPA does not expect the aggregate exposure to exceed 100% of the cPAD, as shown in the following table:

Short-term and intermediate-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level). The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, flea and tick control on pets).

Pyriproxyfen is currently registered for various residential non-dietary sites, and is used for flea and tick control (home environment and pet treatments) as well as products for ant and roach control. Pet owners could potentially be exposed to pyriproxyfen during applications to pets; however, since no short-term dermal or inhalation endpoints were identified, only a post-application residential assessment was conducted. Both adults and toddlers could potentially be exposed to pyriproxyfen residues on treated carpets, floors, upholstery, and pets, but it is anticipated that toddlers will have higher exposures than adults due to behavior patterns. Therefore, the residential risk assessment addressed post-application exposures of toddlers, which is considered to be a worst-case scenario. Short-term, intermediate-term, and long-term toddler hand-to-mouth exposures (consisting of petting treated animals and touching treated carpets/flooring) were assessed; long-term dermal exposures were also assessed for products with anticipated efficacy of more than 6 months (carpet powders and pet collars). Toddler exposures to combined treatment scenarios, where a pet owner treats the home environment and the pet in the same period were also assessed.

The Agency has determined that it is appropriate to aggregate chronic food and water, and short-term or intermediate-term exposures for pyriproxyfen. Using the exposure assumptions described above for short-term and intermediate-term exposures, EPA has concluded that food and residential exposures aggregated result in aggregate MOEs as shown in the following tables:

States which have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to and consistent with the Federal program. States are required to have enforcement authority which is adequate to enforce compliance with the requirements of the hazardous waste program. Under RCRA section 3009, States are not allowed to impose any requirements which are less stringent than the Federal program. Changes to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to EPA's regulations in title 40 of the Code of Federal Regulations (CFR) parts 124, 260 through 266, 268, 270, 273 and 279.

Idaho's hazardous waste management program received final authorization effective on April 9, 1990 (55 FR 11015, March 29, 1990). EPA also granted authorization for revisions to Idaho's program effective on June 5, 1992 (57 FR 11580, April 6, 1992), on August 10, 1992 (57 FR 24757, June 11, 1992), on June 11, 1995 (60 FR 18549, April 12, 1995), on January 19, 1999 (63 FR 56086, October 21, 1998), and most recently on July 1, 2002 (67 FR 44069, July 1, 2002).

Today's final rule addresses a program revision application that Idaho submitted to EPA on June 6, 2003, in accordance with 40 CFR 271.21, seeking authorization of changes to the State program. On August 1, 2003, EPA published a proposed rule announcing its intent to grant Idaho final authorization for revisions to Idaho's hazardous waste program and provided a period of time for the receipt of public comments. The proposed rule can be found at 68 FR 45192.

EPA received one adverse comment letter during the comment period on the proposed rule. The comment letter was submitted by the Environmental Defense Institute, Keep Yellowstone Nuclear Free and David B. McCoy, collectively the commentors. EPA has taken into consideration the comments relating to the authorization of revisions to the Idaho hazardous waste management program in taking today's action. The issues raised by the commentors for purposes of this revision authorization and EPA's responses follow below.

The commentors raised issues in the following areas: (1) The commentors asserted that EPA is obligated to delay issuing a final rule for authorization of these revisions to the Idaho hazardous waste management program until completion of an EPA Office of Inspector General (IG) investigation based on a petition submitted to the Office of Inspector General on August 8, 2000; (2) the commentors asserted that Idaho's intent to move forward with the closure plan for two high level radioactive waste (HLW) and mixed waste tanks at the Idaho National Engineering and Environmental Laboratory (INEEL) violates the recent U.S. District Court ruling in Natural Resources Defense Council, et al. v. Spencer Abraham (NRDC v. Abraham), Case No. 01-CV-413 (July 3, 2003) and requires EPA intervention to ensure enforcement of the applicable law, in particular with respect to RCRA “mixed waste;” (3) the commentors asserted that the Tank Farm Facility (TFF) “closure plan is in violation of RCRA since the DOE/ID has no INEEL RCRA Part B Permit;” and (4) the commentors asserted that the Waste Calcine Facility (WCF) at the INEEL was improperly closed under RCRA because the facility closed with RCRA mixed waste and HLW in place. While these comments focused on a single facility in Idaho and the decisions made by DEQ regarding that facility, the commentors, both in the comment letter and in the numerous attachments thereto, implied that DEQ's actions at this facility had program-wide implications.

In preparing its response to these comments, EPA reviewed, among other documents, the comments and their attachments, the available files on the particular permits and units, including the WCF and the TFF, and the recent ruling in NRDC v. Abraham, as well as the joint amicus brief submitted by the States of Idaho, Washington, Oregon and South Carolina, and the Memorandum of Points and Authorities filed on March 6, 2003 by the United States Department of Justice on behalf of the Department of Energy. The administrative record compiled for this final rule can be located by contacting the individual listed in the For Further Information Contact section of this rule.

With respect to the first comment on the proposed rule, EPA does not agree that it is obligated to delay this action until completion of an IG investigation. 1 The revisions to authorized hazardous waste programs are addressed in the regulations at 40 CFR 271.21. Program revisions are approved or disapproved by the Administrator based on the requirements of 40 CFR part 271 and the Resource Conservation and Recovery Act, as amended, (Act). See 40 CFR 271.21(b)(2). The Administrator has the discretion, among other things, to decline to approve a program revision as well as to withdraw approval of an authorized state program for cause. For purposes of today's action, EPA has determined, based on the administrative record, that authorizing these revisions to Idaho's hazardous waste management program meets the requirements for authorization and continues to ensure that the authorized program in Idaho can meet the requirements for permitting, enforcement, and environmental protection at the INEEL facility and throughout the State of Idaho. The revisions in today's final rule include the rules in Idaho that add all delegable federal hazardous waste rules promulgated between July 1, 1998, and July 1, 2001 (with the exception of parts of the post closure rule), to the already existing hazardous waste program.

EPA does not agree with the second assertion made by the commentors. The commentors asserted that Idaho's intent to move forward with the closure plan for HLW tanks at the INEEL violated the recent U.S. District Court ruling in NRDC v. Abraham, Case No. 01-CV-413 (July 3, 2003), and requires EPA intervention to ensure enforcement of the applicable law, in particular with respect to RCRA “mixed waste.” The tanks which are of issue are tanks WM-182 and WM-183 located within the TFF at the INEEL. The tanks are subject to RCRA and the Department of Energy's (DOE) authority under the Atomic Energy Act (AEA), as DOE maintains, or to the Nuclear Waste Policy Act (NWPA), as the District Court concluded. The U.S. Department of Justice, on behalf of DOE, has appealed the NRDC v. Abraham decision to the Ninth Circuit Court of Appeals.

The commentors failed to distinguish the RCRA “mixed waste” authority and its application to the tanks from those radioactive solid waste issues which may be the subject of the NWPA or the AEA. The State of Idaho joined the States of Oregon, South Carolina and Washington in an amicus brief to the Court to discuss the complex issues involved in the case of NRDC v. Abraham . The joint brief argued from the States' perspective that the DOE had to apply the definition of HLW under the NWPA to determine whether radioactive solid waste met the definition of HLW. The ruling, which the United States appealed, held that DOE did not have discretion to dispose of HLW in other than the type of repository required by the NWPA and that a DOE order, which set a DOE policy to make decisions on how to classify radiological waste, conflicted with the NWPA and was invalid.

The Idaho Department of Environmental Quality (IDEQ) explained to the commentors by letter dated July 29, 2003, that the ruling might have implications for how DOE addresses the HLW in the tanks:

The commentors' third assertion was that the closure of two HLW tanks at INEEL is in violation of RCRA since the DOE/ID has no INEEL RCRA Part B Permit. EPA does not agree that the closure of the first two of eleven Tank Farm Facility (TFF) tanks without a permit violates RCRA. Interim status units are allowed to close pursuant to a closure plan approved in accordance with the Federal regulations at 40 CFR part 265 subpart G, incorporated by reference and authorized in the Idaho hazardous waste program at IDAPA 58.01.05.009.

The commentors' final assertion was that the WCF at the INEEL facility improperly closed under RCRA because the facility closed with RCRA mixed waste and HLW in place rendering the facility a “permanent disposal site” for high-level radioactive waste and mixed hazardous transuranic waste. The WCF was closed in accordance with a closure plan approved by IDEQ pursuant to 40 CFR part 265 subpart G. The WCF closure plan called for capping the WCF with a concrete cap. A draft partial post-closure permit for the WCF was provided to the public for review and comment on May 23, 2003, and a final partial post-closure permit was issued for WCF and became effective on October 16, 2003. The concrete cap was a component of the post-closure permit. The commentors' allegation relates to the policy challenged in NRDC v. Abraham. The resolution of this issue does not reside in the RCRA statute or regulations and cannot be resolved in this authorization. Regardless of the ultimate resolution of the DOE policy challenged in NRDC v. Abraham, the comment on the WCF is insufficient as a basis upon which to decide the merits of authorizing this revision to the Idaho program. The revision and the program as a whole meet the requirements for authorization.

EPA has made a final determination that Idaho's revisions to the Idaho authorized hazardous waste program meet all of the statutory and regulatory requirements established by RCRA for authorization. Therefore, EPA is authorizing the revisions to the Idaho hazardous waste program and authorizing the State of Idaho to operate its hazardous waste program as described in the revision authorization application. Idaho's authorized program will be responsible for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of RCRA, including the Hazardous and Solid Waste Amendments of 1984 (HSWA).

New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates under the authority of HSWA are implemented by EPA and take effect in States with authorized programs before such programs are authorized for the requirements. Thus, EPA will implement those HSWA requirements and prohibitions in Idaho, including issuing permits or portions of permits, until the State is authorized to do so.

The effect of today's action is that a facility in Idaho subject to RCRA must comply with the authorized State program requirements and with any applicable Federally-issued requirement, such as, for example, the federal HSWA provisions for which the State is not authorized, and RCRA requirements that are not supplanted by authorized State-issued requirements, in order to comply with RCRA. Idaho has enforcement responsibilities under its State hazardous waste program for violations of its currently authorized program and will have enforcement responsibilities for the revisions which are the subject of this final rule. EPA continues to have independent enforcement authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to:

• Conduct inspections; require monitoring, tests, analyses or reports;

• Enforce RCRA requirements, including State program requirements that are authorized by EPA and any applicable federally-issued statutes and regulations; suspend, modify or revoke permits; and

• Take enforcement actions regardless of whether the State has taken its own actions.

This final action approving these revisions will not impose additional requirements on the regulated community because the regulations for which Idaho's program is being authorized are already effective under State law.

On June 6, 2003, Idaho submitted a complete program revision application, seeking authorization for all delegable Federal hazardous waste regulations codified as of July 1, 2001, as incorporated by reference in IDAPA 58.01.05.(002)-(016) and 58.01.05.997, except specific portions of the post closure rule noted in the paragraphs below. 2 EPA has determined that the revisions to Idaho's hazardous waste program satisfy all of the requirements necessary for final authorization, and EPA is authorizing the state's changes.

In this final rule, Idaho is receiving partial authorization for the Post Closure Rule promulgated on October 22, 1998 (63 FR 56710). Idaho is not receiving authorization for 40 CFR 270.1(c)(7), Enforceable documents for post-closure care; 40 CFR 265.121, Post-closure requirements for facilities that obtain enforceable documents in lieu of post-closure permits; 40 CFR 265.110(c), and 40 CFR 265.118(c)(4). These provisions are described in the Post Closure rule preamble at 63 FR 56712 section a., Post-closure care under alternatives to permits.

Idaho is not receiving authorization for the clause “* * * or in an enforceable document (as defined in 270.1(c)(7))” in the following sections which are incorporated by reference into Idaho's hazardous waste program: 40 CFR 264.90(e), 264.90(f), 264.110(c), 264.112(b)(8), 264.112(c)(2)(iv), 264.118(b)(4), 264.118(d)(2)(iv), 264.140(d), 265.90(f), 265.110(d), 265.112(b)(8), 265.118(c)(5), 265.140(d), 270.1(c) introduction, and 270.28.

Idaho will issue permits for all the provisions for which it is authorized and will administer the permits it issues. All permits or portions of permits issued by EPA prior to final authorization of this revision will continue to be administered by EPA until the effective date of the issuance, re-issuance after modification, or denial of a State RCRA permit or until the permit otherwise expires or is revoked, and until EPA takes action on its permit or portion of permit. HSWA provisions for which the State is not authorized will continue in effect under the EPA-issued permit or portion of permit. EPA will continue to issue permits or portions of permits for HSWA requirements for which Idaho is not yet authorized.

Codification is the process of placing the State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. EPA does this by referencing the authorized State's authorized rules in 40 CFR part 272. EPA is reserving the amendment of 40 CFR part 272, subpart F for codification of Idaho's program at a later date.

EPA's decision to authorize the Idaho hazardous waste program does not include any land that is, or becomes after the date of this authorization, “Indian Country,” as defined in 18 U.S.C. 1151. This includes: (1) All lands within the exterior boundaries of Indian reservations within or abutting the State of Idaho; (2) any land held in trust by the U.S. for an Indian tribe; and (3) any other land, whether on or off an Indian reservation that qualifies as Indian country. Therefore, this action has no effect on Indian country. EPA retains jurisdiction over “Indian Country” as defined in 18 U.S.C. 1151.

Under Executive Order 12866 (58 FR 51735, October 4,1993), the Agency must determine whether the regulatory action is “significant”, and therefore subject to OMB review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more, or adversely affect in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. It has been determined that this final rule is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to OMB review.

The Paperwork Reduction Act, 44 U.S.C. 3501, et seq. , is intended to minimize the reporting and record-keeping burden on the regulated community, as well as to minimize the cost of Federal information collection and dissemination. In general, the Act requires that information requests and record-keeping requirements affecting ten or more non-Federal respondents be approved by OPM. Since this final rule does not establish or modify any information or record-keeping requirements for the regulated community, it is not subject to the provisions of the Paperwork Reduction Act.

The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA), 5 U.S.C. 601 et seq. , generally requires federal agencies to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business, as codified in the Small Business Size Regulations at 13 CFR part 121; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. EPA has determined that this action will not have a significant impact on small entities because the final rule will only have the effect of authorizing pre-existing requirements under State law. After considering the economic impacts of today's proposed rule, I certify that this action will not have a significant economic impact on a substantial number of small entities.

Title II of the Unfunded Mandates Reform Act (UMRA) of 1995 (Pub. L. 104-4) establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any year. Before promulgating an EPA rule for which a written statement is needed, Section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why the alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

This rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local or tribal governments or the private sector. It imposes no new enforceable duty on any State, local or tribal governments or the private sector. Similarly, EPA has also determined that this rule contains no regulatory requirements that might significantly or uniquely affect small government entities. Thus, the requirements of section 203 of the UMRA do not apply to this rule.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among various levels of government.”

This rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among various levels of government, as specified in Executive Order 13132. This rule addresses the authorization of pre-existing State rules. Thus, Executive Order 13132 does not apply to this rule.

Executive Order 13175, entitled “Consultation and Coordination With Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This rule does not have tribal implications, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule.

Executive Order 13045 applies to any rule that: (1) is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

This rule is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866 and because the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children.

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) because it is not a “significant regulatory action” as defined under Executive Order 12866.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law No. 104-113, 12(d) (15 U.S.C. 272) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus bodies. The NTTAA directs EPA to provide Congress, through the OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This rule does not involve “technical standards” as defined by the NTTAA. Therefore, EPA is not considering the use of any voluntary consensus standards.

To the greatest extent practicable and permitted by law, and consistent with the principles set forth in the report on the National Performance Review, each Federal agency must make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health and environmental effects of its programs, policies, and activities on minority populations and low-income populations in the United States and its territories and possessions, the District of Columbia, the Commonwealth of Puerto Rico, and the Commonwealth of the Mariana Islands. Because this rule addresses authorizing pre-existing State rules and there are no anticipated significant adverse human health or environmental effects, the rule is not subject to Executive Order 12898.

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

This is a summary of the Bureau's Order and Order on Reconsideration in CC Docket No. 96-45, DA 03-4070 released December 24, 2003.

1. The Bureau, consistent with action taken in the past, updates line counts and other input data used in the Commission's forward-looking economic cost model for purposes of calculating and targeting non-rural high-cost support beginning January 1, 2004. In the Order on Reconsideration, the Bureau denies a petition filed by the Maine Public Utilities Commission and the Vermont Public Service Board (Joint Commenters) seeking reconsideration of the Bureau's 2002 Line Counts Update Order, 67 FR 3118, January 23, 2002.

2. Consistent with the framework adopted in the Twentieth Reconsideration Order, 65 FR 26513, May 8, 2000, and the 2001 and 2002 Line Counts Update Orders, 65 FR 81759, December 27, 2000 and 67 FR 3118, January 23, 2002, we conclude that the cost model should use year-end 2002 line counts filed July 31, 2003, as input values for purposes of estimating average forward-looking costs and determining support for non-rural carriers beginning January 1, 2004. We will adjust support amounts every quarter to reflect the lines reported by non-rural carriers. In addition, we will allocate switched lines to the classes of service used in the model by dividing year-end 2002 lines into business lines, residential lines, payphone lines, and single-line business lines for each wire center in the same proportion as the lines filed pursuant to the 1999 Data Request.

3. We disagree with BellSouth that line counts should not be updated unless the Bureau also updates road and customer location data. Updated line count data are readily available, whereas updated road and customer location data are not. As we have explained in the past, line count data must be updated to reflect cost changes and economies of scale associated with changes in line counts, consistent with the Commission's forward-looking cost criteria established in the First Report and Order, 67 FR 41862, June 20, 1997. Line count data also should be updated to avoid increasing the lag between such data and the quarterly line count data used to adjust non-rural high-cost support amounts. We are not persuaded that updating line counts is inappropriate because it may fail to reflect certain costs associated with serving new customer locations. The model's use of road surrogate data to determine customer locations ensures that the structure costs associated with serving new customer locations are reflected in model cost estimates unless such locations are along new roads. BellSouth contends that recent switched line decreases and new housing growth in its service territory undermine the assumption that most new lines are either placed at existing customer locations or along existing cable routes, but it submits no data in support of this contention. Switched lines nationwide decreased by 3.3 percent in 2002, and Commission data indicate that households increased by approximately one percent. Based on these data, we cannot conclude that the trends identified by BellSouth justify not updating line count data. On balance, we find that updating line count data is the best approach for estimating forward-looking costs and determining non-rural high-cost support amounts for 2004.

4. We also disagree with AT&T's argument that we should use projected lines for the end of the 2004 funding year, rather than the most recent reported year-end lines (end of 2002), to match the line count data used to estimate forward-looking costs with the quarterly line count data used to adjust non-rural high-cost support amounts. AT&T has not proposed a methodology for projecting lines. Verizon argues that any such methodology would be complex, difficult, and overly burdensome for purposes of estimating forward-looking costs. We also note that, as stated above, switched lines have declined recently, suggesting the difficulty of accurately projecting lines based on historical data. Consistent with the 2001 and 2002 Line Counts Orders, we find that year-end 2002 line counts are the appropriate data to use for updating the cost model's input values at this time.

5. Consistent with the 2002 and 2001 Line Counts Update Orders, we will use year 2002 ARMIS special access line count data as model inputs to estimate forward-looking costs and determine non-rural high-cost support amounts in 2004. On balance, we conclude that this approach is consistent with the Commission's criteria for estimating forward-looking costs and with applicable universal service principles. We also will continue to divide the updated special access lines among wire centers in the same proportion as the special lines from the 1999 Data Request. As discussed below, we conclude that this methodology is a reasonable approach for estimating special access line growth to determine non-rural high-cost support amounts in 2004.

6. Based on our examination of the record, we continue to find that it is appropriate to update special access lines for purposes of determining non-rural high-cost support in 2004. The First Report and Order requires that the model reflect the economies of scale of serving all business and residential lines, including special access lines. Consistent with this criterion, the Bureau always has included special access line count data within its cost estimates. Removing special access line count data from the model's cost calculations would ignore the demand for special access services. We find that removing special access lines would be inconsistent with the Commission's criteria requiring that the model reflect the economies of scale of serving all business and residential lines, including special access lines.

7. We also conclude that updating special access line count data for purposes of determining non-rural high-cost support in 2004 is consistent with the principle set forth in section 254(b)(5) of the Act that the universal service support mechanism should be specific and predictable. Because different states have different percentages of special access lines, removing them has differential effects on costs and, therefore, support among states. We decline to adopt an interim approach to estimating costs that would significantly change support in some states outside the context of a Commission proceeding to address the underlying model design issues raised by commenters. We conclude that it would be more appropriate to maintain continuity of support until these issues can be addressed comprehensively in a future Commission proceeding.

8. The current record is insufficient to permit us to reach a conclusion as to what adjustments may be needed, if any, to the model's process for counting high-capacity special access lines. Although some commenters argue that the model understates costs by counting high-capacity lines as voice-grade equivalents, it may overstate costs by deploying high-capacity lines on copper instead of fiber. Some commenters also argue that the model overstates costs because it does not include inputs for non-switched services such as digital subscriber lines. In other words, to the extent that adjustments to the model may be needed, such adjustments may increase some costs and reduce others. Consequently, we believe that the most prudent approach is to wait for further action by the Commission to consider several model improvements, specifically including the process for estimating special access demand. In the meantime, we conclude that updating special access line count data for purposes of determining non-rural high-cost support in 2004 is consistent with the Commission's forward-looking cost criteria and with applicable universal service principles.

9. We reject BellSouth's contention that special access line count data should be removed from the model's cost calculations for purposes of determining non-rural high-cost support based on the Bureau's decision to remove special access demand to set unbundled network element (UNE) prices in the Virginia arbitration proceeding. Different rules and principles apply in this proceeding that warrant a different approach. In that proceeding, the Bureau was faced with two proposals for accounting for special access lines and their associated costs in setting Verizon Virginia, Inc.'s UNE rates. Under total element long range incremental cost (TELRIC) principles, the Bureau had to choose the methodology which would result in UNE rates within a range of reasonableness. Here, in contrast, we must determine how to treat special access lines for purposes of calculating non-rural high-cost support. Whereas the Bureau's decision in the Virginia arbitration proceeding affected UNE rates in one state, non-rural high-cost support is determined based on the relationship between each state's average cost per line and the nationwide average. Because different states have different percentages of special access lines, removing special access lines from the model's cost calculations may significantly change support in some states. Our decision here is guided in part by the section 254(b)(5) principle that universal service support should be specific and predictable. Under the circumstances, we conclude that a different approach is warranted for the purpose of determining non-rural high-cost support.

10. We also reject Verizon's request that we publish model cost estimates with and without special access demand at the study-area level before deciding this issue. Verizon argues that it cannot determine whether zeroing out special access lines would produce reasonable results because the Commission has not provided adequate data to allow interested parties to “run the latest version of the model to remove special access demand.” Contrary to Verizon's claim, the Commission provides all the necessary tools and data to run the model without special access lines. Specifically, both the model and ARMIS special access line data are made available to the public on the Commission's Web site. Further, switched line count data are available to the public under a protective order.

11. We also will continue to divide the updated special access lines among wire centers in the same proportion as the special access lines from the 1999 Data Request. We conclude that allocating year 2002 ARMIS special access lines based on the 1999 Data Request remains a reasonable approach for estimating special access line growth for purposes of calculating and targeting non-rural high-cost support for 2004. In this regard, we have analyzed the Verizon data submitted by the Joint Commenters. Based on our analysis, we are not persuaded that the Bureau's allocation methodology is unreliable or produces biased results.

12. The Joint Commenters submitted an analysis comparing model cost estimates based on (1) Verizon data reflecting the number of high-capacity special access lines in each Maine and Vermont wire center served by Verizon at the end of 2001 and (2) year 2000 ARMIS data allocated to wire centers using the Bureau's methodology. They contend that their analysis demonstrates that the Bureau's allocation methodology produces “significant errors” (defined as line count data requiring a correction of 25 percent or more) for 78 percent of the wire centers. They further contend that this methodology overestimates special access lines within 83 percent of wire centers with less than 3,000 switched lines, and underestimates special access lines in 67 percent of wire centers with more than 10,000 switched access lines. As a result, they claim that the data used by the Bureau to allocate special access lines are “unreliable for both urban and rural areas.” The Joint Commenters also calculated an “average cost correction” for wire centers in five size groups (based on switched access lines). They contend that the correction factors vary according to wire center size, and that their application to 2002 support amounts increases support by $0.49 per line for Maine and by $0.50 per line for Vermont. They argue that the Bureau should use special access line count data used to estimate costs for the 2000 funding year, or provide non-rural carriers with the greater of the amount calculated with updated data or the amount provided in 2000.

13. As an initial matter, we disagree with the premise of the Joint Commenters' analysis that the goal of the allocation methodology is to achieve an exact correspondence between the lines assigned to a given wire center in the model and the actual number of lines served. Rather, the goal is to achieve reasonable results that are consistent with the Commission's forward-looking cost criteria using the best available data. For example, the 1999 Data Request required carriers to report intrastate “private lines” with special access lines, pursuant to the criterion that the model estimate the cost of serving all businesses and households, including the cost of special access and private lines. The Commission has never used the number of private lines as model inputs, however, because nationwide private line data had not been available until this year. The Bureau's methodology assigns updated ARMIS special access lines to a wire center based on the proportion of special access and private lines reported for that wire center in the 1999 Data Request. Thus, we would expect differences between the number of lines the allocation methodology assigns to a given wire center in the model and the number of special access lines a carrier serves in that wire center.

14. In addition, because it compares model lines and Verizon lines from two different time periods, the analysis is not the “apples-to-apples” comparison that the Joint Commenters set out to achieve. The Joint Commenters compared model lines based on year 2000 ARMIS special access line count data with year 2001 special access lines obtained from Verizon. Furthermore, the analysis focuses on the number of special access lines assigned to wire centers, rather than the percentages of lines in a study area that are assigned to wire centers. Even if the Joint Commenters had compared model and Verizon data from the same year, as explained above, we would not expect the number of special access lines assigned to a wire center to be the same. The Bureau's methodology assigns special access lines to wire centers using fractions calculated based on the 1999 Data Request. Thus, a more appropriate comparison for evaluating the Bureau's methodology would be to compare the percentage of special access lines in a study area that are assigned to a wire center using the Bureau's methodology with the percentage of total special access lines in the study area that are identified in the Verizon data as serving that wire center.

15. After analyzing the two data sets on which the Joint Commenters base their analysis, we cannot conclude that the Bureau's allocation methodology produces unreliable or biased results. We first analyzed the data sets for differences between the percentages of total special access lines assigned to individual wire centers, using the Joint Commenters' wire center size categories. We found that for the 45 wire centers with less than 3,000 lines, the Bureau's methodology assigns a higher percentage of lines than Verizon's special access lines in most cases (consistent with the Joint Commenters' contention), but the average difference between the model percentages and the Verizon percentages is very small—only −0.1 percent. For the 24 wire centers with over 10,000 switched lines, we found that the Bureau's methodology assigns a lower percentage of lines than the Verizon data in only 33 percent of the wire centers. Contrary to the Joint Commenters' findings, the Bureau's methodology assigns a higher percentage of lines than the Verizon data in most wire centers from this group. We also analyzed the correlation between wire center size and percentage differences between model lines and Verizon lines. Although we found an overall correlation of +0.541, this correlation is caused mainly by two outlier data points. Thus, although our analysis reveals differences between model lines and Verizon's special access lines that are on average negative in small wire centers and positive in large wire centers, the differences are very small—less than 1 percent—and do not reveal a pattern that supports the Joint Commenters” allegation of substantial systematic bias.

16. Furthermore, our analysis of the Joint Commenters' cost results does not show a consistent pattern in the data that would support their allegation of bias. Again, for purposes of our analysis, we used the Joint Commenters' wire center size categories. As stated above, they contend that the differences in model cost estimates based on Verizon lines and model lines correlate to wire center size: higher-density (urban) wire centers have lower costs and lower-density (rural) wire centers have higher costs based on Verizon lines. Although this is true, on average, most of the wire centers within their groups do not conform to this pattern. For small wire centers with 0 to 1,000 lines, the Joint Commenters found that the average difference was +$0.11. Twenty-eight of the 34 wire centers in this group have lower costs using Verizon data, however. For wire centers with 1,000 to 2,500 lines, the Joint Commenters found that the average difference was +$0.23, but 57 out of the 77 wire centers in this group have lower costs using Verizon data. Thus, the majority of small, rural wire centers show differences that are counter to the Joint Commenters' allegation of bias.

17. We also analyzed the cost results when the Verizon data are adjusted to match the vintage of the other line count data used in the Joint Commenters' analysis. As discussed above, they compared two vintages of special access lines: year 2000 ARMIS line count data and 2001 line count data obtained from Verizon. To obtain cost results, they used these data in combination with year-end 2000 switched line counts. The Bureau runs the model using switched and special access lines from the same year, however, which is important for purposes of analyzing cost results because it allows one to distinguish between effects due to changes in the overall number of lines and changes due to the allocation of lines. Accordingly, Bureau staff factored down the Verizon year 2001 special access data to reflect the total year 2000 ARMIS special access line data, and combined this data with year-end 2000 switched line count data to obtain adjusted cost results. Comparing these adjusted results to results based on model lines, we again found that although the average differences were consistent with the Joint Commenters' findings, most wire centers showed differences counter to the allegation of bias. As shown in Attachment B, the overall result of our analysis of the relationship between wire center size and differences in cost results based on adjusted Verizon lines and model lines was a slight statistical correlation of −0.085 percent. Given the slight correlation between costs and size in the two states and the various directions of cost corrections for wire centers within each group, we cannot conclude that the Joint Commenters' cost correction factors are reliable. In sum, therefore, we conclude that allocating year 2002 ARMIS special access lines based on the 1999 Data Request remains a reasonable approach for estimating special access line growth for purposes of calculating and targeting non-rural high-cost support for 2004, and that the Joint Commenters' analysis does not establish that this methodology is unreliable or produces biased results.

18. Finally, the Joint Commenters do not establish an alternative methodology that would provide fairer or more reasonable results. Even if their cost correction factors were reliable for Maine and Vermont, there is no reason to believe the same factors would be reliable nationwide. The differences in costs based on special access lines and costs based on model lines are likely to differ significantly by state given the diversity of terrain, population density, and size. Because support is determined in relationship to the nationwide average cost, we would have concerns about applying cost correction factors derived from two states to the nation as a whole. Moreover, if state-specific cost correction factors were used, it is not clear that the states of Maine and Vermont would see a “substantial” increase in support. Depending upon the “corrected” costs in other states, their support could also decrease.

19. In the absence of new data, the Joint Commenters urge the Commission to revert to the special access line counts used to distribute support in 2000, that is, year 1998 ARMIS special access lines. Using these line counts would provide demonstrably less reliable results than the current methodology for two reasons. Prior to ARMIS reporting year 2000, some carriers were under-reporting their special access lines by reporting special access circuits terminating at multiple customer premises as a single special access line, rather than as multiple special access lines. As part of its ongoing effort to improve data consistency, the Bureau subsequently clarified how special access lines should be reported in a consistent fashion. As a result, Verizon's special access lines increased substantially between year 1999 ARMIS reports and year 2000 ARMIS reports. Second, the method used to allocate special access lines to wire centers in the model's first year of operation was not as reliable as our current method. Because we had not yet developed a methodology to use the 1999 Data Request to allocate lines to wire centers, we used the only data available at the time to allocate lines: the wire center line counts developed by PNR Associates, trued-up to year 1998 ARMIS line counts. The allocations in the 1999 Data Request are more reliable because the data were filed by the carriers, rather than being estimated by PNR's National Access Line Model.

20. Consistent with the 2002 Line Counts Update Order, we will update the model with year 2002 ARMIS data used to compute general support facilities (GSF) investment so that the model's cost estimates take into account the current costs of GSF investment associated with supported services. In addition, we will update the model with the most recent traffic parameters available from the National Exchange Carrier Association (NECA) to determine the percentage of the switch allocated to supported services and the switch port requirement for interoffice transport. We also will use the methodology employed in the 2001 and 2002 Line Counts Orders to match wire centers reported by non-rural carriers in their quarterly line count data used to adjust non-rural high-cost support amounts with the wire centers found in the 1999 Data Request and in the model's customer location data. Commenters generally support these input updates.

21. Some commenters express concerns regarding reporting of unbundled network element (UNE) lines that are sold or leased to competitive LECs for purposes of calculating and targeting non-rural high-cost support amounts. In particular, AT&T urges that leased lines and UNE lines must be reported to ensure that the model's cost estimates reflect the demand for total lines. The Maine and Vermont Commissions state that some non-rural carriers do not include UNE lines in their ARMIS reports, a practice which could reduce support amounts by exaggerating per-line costs in urban areas with substantial UNE-based competition relative to per-line costs in other areas. We clarify that the model uses lines reported to NECA pursuant to section 36.611 to estimate switched line demand, and that NECA requires that carriers report both leased lines and UNE lines that are sold to competitive LECs for purposes of § 36.611 reporting.

22. AT&T urges the Commission to initiate a proceeding to consider improvements to the model's platform and inputs, arguing that the model has “well-known deficiencies” and that recent developments confirm the inaccuracy of certain model platform and input assumptions. Such a proceeding is beyond the scope of the Bureau's delegated authority. The Commission has expressed its intention to initiate a proceeding to study proposed changes to the model inputs and model platform in a comprehensive manner.

23. We do not address Petitioners' arguments that the model input data used by the Bureau pursuant to the 2002 Line Counts Update Order was unreliable, because these arguments are fully addressed in the foregoing Order. As demonstrated in the foregoing Order, there is no merit to Petitioners' contention that the Bureau's methodology for allocating updated special access lines in the model is unreliable or produces biased results. As also explained above, and contrary to Petitioners' assertion, it is appropriate to use data sources from different years in the model when these are the best available data to achieve reasonable results that are consistent with the Commission's forward-looking cost criteria and with applicable universal service principles. Below, we conclude that Petitioners' contention that the Bureau failed to provide adequate notice of its decision to update data in the 2002 Line Counts Update Order is without merit.

24. Petitioners argue that the Bureau's 2002 Line Counts Public Notice, 66 FR 48259, September 19, 2001, seeking comment on updating line counts for 2002 did not provide adequate notice that “routine updating of line counts would substantially reduce the support available for Verizon customers in their states.” We disagree. The Bureau clearly stated in the 2002 Line Counts Update Public Notice that it was considering updating line count data in the model using the same methodology as the Bureau used in the 2001 Line Counts Update Order. In particular, for purposes of determining support for the year 2002, the Bureau sought comment on updating the switched line counts in the model with year-end 2000 wire center line count data, updating special access line counts with year 2000 ARMIS data, and using the Bureau's 1999 Data Request to allocate the updated lines. In the 2002 Line Counts Update Order, the Bureau then applied these methodologies to estimate switched line and special access line count growth. Therefore, the Bureau provided adequate notice in the 2002 Line Counts Public Notice of the method it used to update model inputs in the 2002 Line Counts Update Order.

25. As the Bureau informed the public that it was considering the same framework for 2002 updates as it had in the past, we also disagree with Petitioners that they lacked adequate notice of the potential impact of input updates on 2002 support distributions. Consistent with the Commission's criterion that “[t]he cost study or model and all underlying data, formulae, computations, and software associated with the model must be available to all interested parties for review and comment,” the model was posted on the Commission's website, and the input data used by the Bureau was available to the public either on the website or under a protective order or licensing agreement. Petitioners were therefore capable of determining the support distributions for 2002 based on the model's cost calculations before the 2002 Line Counts Update Order was adopted. If Petitioners believed the support distributions were inappropriate, they had the burden of identifying why specific inputs should not have been updated, but Petitioners did not meet this burden. We therefore find that Petitioners had adequate notice of the potential impact on non-rural high-cost support amounts of the model input updates proposed in the 2002 Line Counts Public Notice.

26. Petitioners further argue that the 2002 Line Counts Public Notice failed to notify parties that the Bureau would count special access lines as voice grade equivalent channels in the model's inputs, special access lines would increase in various non-rural wire centers, and updated line counts would be matched with older data for purposes of assigning such lines to wire centers. We reject these claims for the following reasons. First, in the 2002 Line Counts Update Public Notice, the Bureau stated it was considering updating special access lines as it had done in the past, which was to count special access lines as voice grade equivalent channels. In the comment cycle in that proceeding, Verizon requested that the Bureau count special access lines as facilities for purposes of calculating support for 2002. The Bureau, however, noted in the 2002 Line Counts Update Order that such an alteration would require a platform change outside the scope of the proceeding, and deferred consideration of this issue until a future proceeding on possible improvements to the model platform and inputs. Similarly, because Petitioners were notified that special access lines would be updated using the same methodology as in the past, Petitioners could access year 2000 ARMIS special access filings for the non-rural carriers in their states on the Commission's website to find out whether special access lines increased or decreased for 2002 cost estimates. Consequently, we reject Petitioner's argument that the 2002 Line Counts Update Public Notice failed to apprise interested parties of the methodology used to update special access lines in the 2002 Line Count Updates Order. We find that the 2002 Line Counts Public Notice was clear in seeking comment on whether to update the model's inputs consistent with past practice.

27. Petitioners also argue that the Bureau did not make available line count data at the time of release of the 2002 Line Counts Update Public Notice due to proprietary treatment of these data. This claim is incorrect. In the First Report and Order, the Commission established, as one of the criteria in developing a forward-looking economic cost model to determine universal service support, that “all underlying data, formulae, computations, and software associated with the model should be available to all interested parties for review and comment.” Consistent with this principle, the Commission has determined that line count data used for wire centers that receive high-cost support should be publicly available. In addition, line count data for wire centers that do not receive high-cost support are available pursuant to the Bureau's Interim Protective Order, April 7, 2000. Year-end 2000 line count data used to estimate high-cost support for 2002 was filed by non-rural carriers by July 31, 2001, and therefore was available to Petitioners at the time of the release of the 2002 Line Counts Public Notice on September 11, 2001.

28. Pursuant to the authority contained in sections 1-4, 201-205, 214, 218-220, 254, 303(r), 403, and 410 of the Communications Act of 1934, as amended, and § 1.108 of the Commission's rules, this order is adopted.

28a. Pursuant the authority contained in sections 4, 201-205, 218-220, 303(r), and 405 of the Communications Act of 1934, as amended, and 405 of the Communications Act of 1934, as amended, and §§ 1.106 and 1.429 of the Commission's rules, that the petition for reconsideration filed February 25, 2002, by the Maine Public Utilities Commission and Vermont Public Service Board is denied.

Background

On March 1, 2000, we published a final rule document amending the safety regulations in 49 CFR part 193, which apply to LNG facilities used in gas pipeline transportation (65 FR 10950). That document replaced many part 193 siting, design, construction, equipment, and fire protection requirements with references to a consensus standard, NFPA 59A, “Standard for the Production, Storage, and Handling of Liquefied Natural Gas (LNG)” (1996 edition). Until then, part 193 referenced NFPA 59A (1996 edition) in only a few instances concerning siting, design, and fire protection.

An amendment to § 193.2005, “Applicability,” inadvertently implied that LNG facilities existing on March 31, 2000 (hereafter, “existing LNG facilities”), were exempt from part 193 operation, maintenance, and fire protection standards. After recognizing this ambiguity, we published a notice of proposed rulemaking (NPRM) to revise § 193.2005 (68 FR 23272; May 1, 2003). In the NPRM, we also proposed to revise incorrect cross-references that resulted from the March 1, 2000, final rule to establish minimum standards for fire drills used in fire protection training, and to require that operators review their part 193 plans and procedures at least once a year. We further proposed to update all part 193 references to NFPA 59A to the 2001 edition of that standard. Interested persons were invited to submit written comments on the proposed rules before July 1, 2003.

The Technical Pipeline Safety Standards Committee (TPSSC) considered the NPRM and the associated evaluation of costs and benefits at a meeting in Washington, DC on May 30, 2003, and again in a teleconference held on July 31, 2003. TPSSC is a statutory advisory committee that advises RSPA/OPS on proposed safety standards and other policies for gas pipelines. It has an authorized membership of 15 persons, five each representing government, industry, and the public. Each member has qualifications to consider the technical feasibility, reasonableness, cost-effectiveness, and practicability of proposed pipeline safety standards. Transcripts of the meeting and teleconference are available in Docket No. RSPA-98-4470.

At the May 30 meeting, TPSSC voted unanimously to support our proposal to update references to NFPA 59A (2001 edition) for purposes of LNG facility siting, design, and construction. However, some members and audience participants were concerned that applying NFPA 59A (2001 edition) provisions on fire protection retroactively, as we proposed, would unnecessarily increase operating costs and conflict with current plant procedures. So TPSSC postponed discussion of updating the reference to NFPA 59A in the fire protection rule, § 193.2801. This fire protection issue and the proposed rules on fire drills and reviews of plans and procedures were discussed later at the teleconference. The next section of this preamble contains our treatment of TPSSC's advice on these matters.

This section of the preamble summarizes significant public comments and TPSSC advice we received on rules proposed in the NPRM. It also explains how we treated those comments and advice in developing the final rules. Subheadings correspond with new or amended rules proposed in the NPRM. We have not discussed all favorable comments or comments that suggested additional rulemaking actions. Changes proposed to §§ 193.2019(a), 193.2503, 193.2507, 193.2509(b), 193.2605(b)(2), and 193.2717(a) did not receive direct comment or TPSSC advice, so we adopted the proposed changes as final.

Nine entities submitted written comments: American Gas Association (AGA), Columbia Gas Transmission Corporation (Columbia), Distrigas of Massachusetts LLC (Distrigas), Duke Energy Gas Transmission (Duke), KeySpan Energy (KeySpan), Paiute Pipeline Company (Paiute), Peoples Gas Light and Coke Company (Peoples Gas), Sound Energy Solutions (Sound), and Williams Gas Pipeline (Williams). All comments are in the docket and available at http://dms.dot.gov. Most commenters favored the proposal to update references to the 2001 edition of NFPA 59A, but either opposed or offered alternatives to other proposals.

As revised by the March 1, 2000, final rule, § 193.2005(a) reads as follows:

This rule implies that the changes made to part 193 fire protection, operation, and maintenance requirements do not apply to existing LNG facilities. However, as explained in the NPRM, this implication was inadvertent and contrary to RSPA's/OPS's long-standing policy of applying part 193 operation, maintenance, and fire protection regulations retroactively. We proposed to remove the implication by amending § 193.2005(a) to read as follows:

The proposed change to § 193.2005(a) was based on former § 193.2005(a)(1), which exempted from siting, design, installation, or construction standards “LNG facilities under construction before the date such standards are published.” Former § 193.2005 did not exempt any facilities from operation, maintenance, or fire protection standards.

Although it was never an issue under former § 193.2005(a)(1), AGA and Distrigas were concerned that proposed § 193.2005(a) would disrupt planned LNG facilities that have received government approval for construction but are not yet under construction. These commenters thought that once LNG facilities receive such approval, they should be exempt from any new siting, design, installation, or construction standard adopted after the approval. As support for this view, AGA cited former § 193.2005(a)(2) that was in effect prior to March 31, 2000. This former section exempted LNG facilities from such new standards if the operator had filed an approval application with the appropriate government agency before March 1, 1978.

Former § 193.2005(a)(2) merely stated the filing-based exemption that Congress included in section 152 of Public Law 96-129 (Nov. 30, 1979). This law directed DOT to establish new siting, design, and construction regulations within 180 days after enactment. Congress intended the exemption to ease the impact of these new regulations on LNG facilities planned before March 1, 1978. However, Congress did not establish a similar exemption for LNG facilities planned subsequently. Instead, it chose to apply a construction-based exemption to these facilities. Under this exemption, new design, installation, and construction regulations do not apply to LNG facilities “existing when the standard is adopted” (49 U.S.C. 60103(c)(3)).

Because Congress limited the filing-based exemption to facilities planned before March 1, 1978, and established a construction-based exemption for later-planned facilities, we do not think that establishing a filing-based exemption for these later-planned facilities would be appropriate. Moreover, LNG plant operators can apply for waivers of any regulation as provided in 49 U.S.C. 60118.

Several commenters were concerned that if we amended § 193.2005(a) as proposed, the fire protection requirements of § 193.2801, which reference NFPA 59A provisions, would have an adverse impact on existing LNG facilities. AGA and Paiute said that the fire protection provisions of NFPA 59A (2001 edition) were very different from the previous requirements of Subpart I, and that industry needs more time to consider the impact of compliance. To illustrate this point, AGA and Paiute referred to section 9.7.2 of NFPA 59A (2001 edition), which reads:

AGA and Paiute said many operators relied on local fire departments and did not use plant fire brigades. Duke had a similar concern, saying that NFPA 600 is inconsistent with part 193 training requirements and would prevent plant personnel from carrying out firefighting duties.

As another illustration of differences, AGA and Paiute referred to section 9.3.4 of NFPA 59A (2001 edition), which reads:

AGA and Paiute said many LNG plant operators could not test and maintain their systems under NFPA 72 requirements. Similarly, Williams commented that because some NFPA 72 provisions call for the use of licensed or certified personnel, experienced plant technicians could no longer install and maintain detection systems. Williams was concerned that LNG plant operators would have to hire outside contractors who may be unfamiliar with plant systems and hazards.

We think these comments do not accurately reflect the impact of applying § 193.2801 retroactively. Concerning the NFPA 600 issue, section 9.7.2 provides that employees who are involved in emergency activities, as determined in accordance with 9.1.2, must be qualified under NFPA 600. Two provisions of section 9.1.2 require determinations about employees involved in emergencies. Section 9.1.2(8) requires operators to determine “the availability and duties of individual plant personnel * * * during an emergency.” Under the second provision, section 9.1.2(9), operators must determine “the protective equipment, special training, and qualification needed by individual plant personnel as specified by NFPA 600, Standard on Industrial Fire Brigades, for his or her respective emergency duties.” However, an asterisk next to section 9.1.2(9) refers to section A.9.1.2(9), which reads:

The sum of these interconnected NFPA 59A provisions is that the reference to NFPA 600 in section 9.7.2 applies to determinations made under section 9.1.2(9), which apply only to personnel involved in fire brigades. Thus it is reasonable to conclude that the NFPA 600 qualifications required by 9.7.2 apply only to plant personnel who carry out emergency duties as part of a fire brigade. So section 9.7.2 would not affect the many LNG plants that AGA and Paiute said rely on local fire departments instead of personnel fire brigades for fire fighting.

As for NFPA 72, Subpart I has indirectly referenced this NFPA standard for years. Before the March 1, 2000, final rule took effect, former §§ 193.2819 and 193.2821 required operators to “provide and maintain” gas and fire detection systems in existing LNG plants according to applicable NFPA 59A provisions. Section 9-4.4 of the 1979 edition of NFPA 59A, the first edition referenced in §§ 193.2819 and 193.2821, required that the design, installation, and maintenance of detection systems meet various NFPA 72 standards. In a document published May 24, 1996 (Amdt. 193-11; 61 FR 26121), we updated these NFPA 59A references to the 1996 edition of NFPA 59A. Like the 1979 edition, section 9-4.4 of the 1996 edition references NFPA 72 for the design, installation, and maintenance of detection systems. The 2001 edition of NFPA 59A, proposed in the NPRM as the latest update of NFPA 59A references, contains a similar reference to NFPA 72 in section 9.3.4. In short, our proposal to clarify that operators of existing LNG facilities must comply with the fire protection provisions of NFPA 59A, including its references to NFPA 72, is not a new regulatory approach. The proposal would simply continue an approach that has been in effect since the inception of part 193.

Nevertheless, in view of the comments, we believe many operators may need additional time to meet NFPA 72 qualification and training provisions referenced in section 9.3.4 of NFPA 59A (2001 edition). Some operators may also need additional time to meet NFPA 600 qualification and training provisions related to personnel assigned to fire brigades. Therefore, final § 193.2801 allows operators until September 12, 2005, to meet these qualification and training requirements. This additional compliance time should alleviate commenters' concerns that their personnel do not meet NFPA 72 personnel qualification provisions.

Duke said operators could only accomplish many fire prevention and control provisions of NFPA 59A during plant design and construction. It also said retrofitting existing fire protection equipment to meet these provisions would be very difficult and not always possible. KeySpan had similar concerns, particularly about provisions in NFPA 59A, Chapter 9, concerning emergency shutdown systems; gas, fire, and leak detection systems; and water delivery systems. Duke suggested existing LNG facilities should only have to meet section 9.6, “Maintenance of Fire Protection Equipment,” of NFPA 59A (2001 edition). Because some members, particularly a Duke representative, were concerned about applying the fire protection provisions of NFPA 59A retroactively, TPSSC voted unanimously that the proposed update of the NFPA 59A reference in § 193.2801 should apply only to new LNG facilities.

The Duke and Keyspan comments and TPSSC advice raise the issue of whether operators of existing LNG facilities should have to upgrade their fire protection systems to meet the current NFPA 59A standards or just maintain the existing systems. However, we think this issue was settled long ago. In authorizing safety standards for the operation and maintenance of LNG facilities, Congress gave DOT specific authority to establish requirements for fire prevention and containment equipment (49 U.S.C. 60103(d)(2)). Moreover, Congress did not exclude existing facilities from application of any operation or maintenance standard, although it did exclude these facilities from application of other safety standards ( i.e. , standards on design, location, installation, construction, initial inspection, and initial testing) (49 U.S.C. 60103(c)). As a result, when we established the fire protection rules in subpart I of part 193, we applied them to both new and existing facilities, and allowed operators of existing LNG facilities more than a year to retrofit their water delivery systems and gas and fire detection systems according to NFPA 59A standards (45 FR 70390, Oct. 23, 1980). Since then, whenever the references to NFPA 59A were updated to later published editions, operators have had to upgrade these systems as necessary to meet the later edition.

The most recent update—to the 1996 edition of NFPA 59A—occurred May 24, 1996 (61 FR 26121), almost 4 years before we published the March 1, 2000, final rule. When that update occurred, LNG plant operators did not say that upgrading their fire protection systems would be difficult, although there was no question that the references to NFPA 59A in Subpart I applied retroactively. This lack of expressed concern about compliance with the 1996 edition is an important consideration in the present upgrading issue, because the provisions of the 1996 and 2001 editions on fire protection systems are very similar. Neither the commenters nor TPSSC pointed to any significant differences between the 1996 and 2001 editions on fire protection systems. Moreover, in spite of Duke's comments about possible compliance difficulties, a recent inspection of Duke's sole LNG plant by RSPA engineers found all the fire protection systems in full compliance with NFPA 59A (1996 edition) requirements. Therefore, we have decided to continue to apply § 193.2801 retroactively as proposed.

Nevertheless, we must recognize that before the March 1, 2000, final rule took effect, subpart I of part 193 did not require that LNG plants meet the fire protection provisions of NFPA 59A on emergency shutdown systems or detection systems other than gas and fire detection systems. In addition, the subsequent confusion over whether § 193.2801 applies to existing LNG facilities may have caused some operators to delay bringing their water delivery and gas and fire detection systems into compliance with the 1996 edition of NFPA 59A. Therefore, final § 193.2801 allows operators until September 12, 2005, to bring these systems into compliance with the 2001 edition. The overall compliance burden should not be great because we see little difference between the 1996 and 2001 editions of NFPA 59A regarding fire protection systems. Also, part 193 requires that LNG plants on which construction began after February 11, 1980, must have emergency shutdown systems.

Columbia disagreed with the conclusion of the draft Regulatory Evaluation that applying operation, maintenance, and fire protection standards retroactively would have little cost impact on operators. One cost it mentioned was having to review and amend its operation and maintenance procedures. Our response to this comment is in the final Regulatory Evaluation, a copy of which is in the docket. As stated below under the heading “Regulatory Analyses and Notices,” the Regulatory Evaluation concludes that operators would incur only minimum compliance cost.

Distrigas said the reference to NFPA 59A in § 193.2801 was unclear. This rule provides that “[e]ach LNG facility must meet fire prevention and fire control provisions of ANSI/NFPA 59A.” Distrigas stated that operators are confused whether the reference to NFPA 59A includes all provisions of NFPA 59A related to fire prevention and control, all provisions of Chapter 9—Fire Protection, Safety, and Security, or just particular provisions of Chapter 9. Similarly, KeySpan suggested we change § 193.2801 to state exactly which provisions of NFPA 59A (2001 edition) would apply. In consideration of these comments, we have changed § 193.2801 to state: “Each operator must provide and maintain fire protection at LNG plants according to sections 9.1 through 9.7 and section 9.9 of ANSI/NFPA 59A.” The remaining section in Chapter 9, section 9.8—Security, relates to matters that part 193 covers in Subpart J-Security.

Williams asked us to clarify that the proposed term “standards in this part” means part 193 standards rather than NFPA standards. Williams was concerned that proposed § 193.2005(a) could be interpreted to require that existing LNG facilities meet operation and maintenance provisions of NFPA 59A (2001 edition). In response to this comment, in final § 193.2005(a) we changed “standards” to “regulations.” We also added a parenthetical expression to explain that the term “regulations” includes any materials, such as NFPA 59A provisions, that are incorporated by reference in the regulations.

We proposed to require that operators review and update their part 193 plans and procedures at intervals not exceeding 15 months, but at least once each calendar year. 1 This proposed interval between reviews was based on a similar requirement applicable to gas pipelines under 49 CFR 192.605(a).

Although Williams supported annual reviews, AGA, Columbia, Distrigas, and Paiute argued that LNG plants do not experience significant enough changes in their operations from year to year to justify annual reviews of plans and procedures. AGA, Distrigas, and Paiute suggested review intervals of 2 years, not to exceed 27 months, noting that § 193.2713(b) requires operations and maintenance personnel to receive refresher training in procedures every 2 years. AGA and Distrigas also suggested reviews would be appropriate whenever a significant change in facilities occurs. However, Distrigas thought reviews should not include drawings, prints, schematics, and other items that are not subject to change. Finally, TPSSC voted unanimously to recommend reviews at two-year intervals.

After carefully considering these comments and TPSSC's advice, we agree that LNG plant operations generally do not change as frequently as gas pipeline operations. So fewer reviews of plans and procedures for LNG plants would be acceptable. We also agree that the 2-year interval for refresher training on operating and maintenance procedures is a suitable guide to how often operators should review their part 193 plans and procedures. Still, as Distrigas suggested, if a significant change in plant facilities occurs in the interim, a 2-year interval could allow too much time to pass before updating related plans and procedures. Therefore, in final § 193.2017(c), we have increased the proposed maximum interval between reviews from 1 to 2 years but also required reviews whenever a component  2 is changed significantly or a new component is installed. Reviews would have to include drawings, prints, schematics, and other items that have not changed only to the extent necessary to assure that plans and procedures are consistent with current plant operations.

Based on its own comprehensive operations and maintenance procedures, Columbia disagreed with our assessment in the draft Regulatory Evaluation that annual reviews would have a minimal impact on operators. Our response to this comment is in the final Regulatory Evaluation, a copy of which is in the docket. As stated below under the heading “Regulatory Analyses and Notices,” the Regulatory Evaluation concludes that operators would incur only minimum compliance cost.

This rule requires operators to determine periodically if their inspectors are satisfactorily performing duties assigned under § 193.2307 regarding inspection of construction, installation, and testing activities. However, in the final rule of March 1, 2000, we removed § 193.2307 as no longer necessary in view of similar inspections required by NFPA 59A. So, in the NPRM, we proposed to eliminate the cross-reference to § 193.2307, but still require that operators determine if required inspections of construction, installation, and testing activities are being done satisfactorily.

Only Distrigas commented on proposed § 193.2705(b). It said the proposed rule was unclear because it does not define the inspections operators would have to evaluate. Distrigas also said it was unclear that part 193 even requires inspections of construction, installation, and testing activities.

We do not think Distrigas's comments warrant changing proposed § 193.2705(b). The inspections operators would have to evaluate are those done by “inspectors performing construction, installation, and testing duties required by [part 193].” Although part 193 may not directly require such inspections, it indirectly requires them through cross-references to NFPA 59A. For example, § 193.2303, “Construction acceptance,” requires that components pass all applicable inspections prescribed by NFPA 59A. And section 4.1.1 of NFPA 59A (2001 edition) provides that operators must inspect LNG containers (a type of component) “to ensure compliance with the engineering design and material, fabrication, assembly, and test provisions of this standard.” Therefore, we have adopted proposed § 193.2705(b) as final.

Under § 193.2717, operation and maintenance personnel and their immediate supervisors must undergo initial and continuing fire prevention and control training according to an instruction plan that includes fire drills. To clarify that a fire drill means more than a tabletop exercise, we proposed that fire drills include “evacuation of buildings” and “personnel performing fire control duties.”

Peoples Gas asked if fire drills have to include persons other than operator personnel. Fire drills are a mandatory component of fire protection training under § 193.2717. The first sentence of § 193.2717(a) describes who is subject to fire protection training: “All personnel involved in maintenance and operation of an LNG plant, including their immediate supervisors. * * *.” Affected personnel would include individuals and contractors hired by operators to perform operation or maintenance functions on plant facilities. Other people who may be on site, such as visitors, vendors, or government safety or emergency personnel, are not subject to training under § 193.2717. Still the training of operator personnel must cover procedures established under § 193.2509 for promptly notifying appropriate local officials of emergencies and then cooperating with them in evacuations and emergencies that require mutual assistance. Given this connection between fire emergency procedures and local officials, we believe some fire drills at LNG plants must include appropriate local officials.

AGA, Columbia, Distrigas, KeySpan, and Williams objected to the proposed fire drill standards as too restrictive considering the various ways of effectively training personnel. These commenters suggested the rule should merely list acceptable fire drill methods and allow operators to decide which methods to use. In support of this view, they stated that local fire departments and state agencies recognize tabletop fire drills nationally, and that such drills could be adequate for LNG plants, depending on plant size, siting, and design. In addition, they said that many classroom courses and hands-on training opportunities are available for LNG operator personnel.

Several TPSSC members also considered the proposed standards too restrictive. They suggested the final rule should allow operators discretion to choose among a variety of options to satisfy the fire drill training requirement. As a result, TPSSC voted unanimously that operators should have discretion to use appropriate options that address fire prevention and response objectives.

Other commenters foresaw difficulties in carrying out the proposed fire drill standards. Distrigas questioned whether “evacuation of buildings” would apply to all buildings at a plant, since a plant-wide drill may not always be feasible. In this regard, Columbia and Paiute were concerned about the potential consequences of leaving vital equipment unmonitored during a drill if technicians had to leave control buildings. Paiute suggested hands-on fire fighting combined with tabletop drills would be an adequate fire drill for these technicians. AGA, KeySpan, and Williams found the term “personnel performing fire control duties” confusing. AGA and Williams thought it could mean that fire control personnel must either control a fire while participating in a drill or just participate in the drill. Similarly, KeySpan questioned whether the proposed standard would require actual operation of water, dry chemical, and foam equipment.

In evaluating these comments and TPSSC advice, we noted that an important purpose of fire protection training under § 193.2717 is to assure that personnel can properly respond to fire emergencies according to plant procedures established under § 193.2509. These procedures cover various practical activities, such as notifying plant personnel and local officials of fires, using appropriate fire control equipment, and evacuating the plant or nearby areas. Because fire drills test how personnel would handle these activities during a real emergency, we proposed that, at a minimum, fire drills include actual evacuations and performance of fire control duties. However, upon further consideration, we agree with commenters and TPSSC that the proposed standards are not easy to understand and may not be necessary for all LNG plants.

Therefore, in the final rule, we replaced the proposed prescriptive standards with a performance standard. We think this approach will accomplish the objectives of the proposal while providing the discretion sought by commenters and TPSSC. Final § 193.2717(c) merely requires that fire drills provide personnel hands-on experience in carrying out their duties under the fire emergency procedures required by § 193.2509. To meet this requirement, operators could use a variety of activities that simulate emergency conditions. Tabletop exercises would be acceptable if, as one commenter suggested, they are supplemented by some hands-on experience related to carrying out assigned emergency duties. Under final § 193.2717(c), operators may decide whether to include actual operation of fire control equipment as part of hands-on experience in using the equipment.

Part 193 incorporates by reference provisions of various consensus standards, such as NFPA 59A. 3 These documents, along with applicable editions and names and addresses of publishing organizations, are now listed in Appendix A to part 193. In addition, § 193.2013, “Incorporation by reference,” provides general information about incorporation by reference. However, the Office of the Federal Register, National Archives and Records Administration, has developed a new policy on the information Federal agencies should publish about referenced materials. To conform to this policy, we are deleting Appendix A and transferring its contents to § 193.2013. As a result, all information about NFPA 59A and other documents referenced in part 193 will appear in one location. Section 193.2013 will also include cross-references to part 193 sections that incorporate the referenced materials.

This final rule adopts in § 193.2013 our proposal to reference the 2001 edition of NFPA 59A, rather than the 1996 edition now in use. Except as discussed above concerning § 193.2801, none of the commenters opposed this update. AGA commented that updating to the 2001 edition would positively affect the outlook for energy supplies. Moreover, because of the renewed national interest in LNG, Sound urged that we expeditiously adopt the proposed update. It said the update would enable operators to avoid the higher costs, delays, and potential constraints on gas supply attendant to designing new LNG facilities under both the 1996 and 2001 editions. Therefore, we are adopting the update as proposed.

To accommodate the update, in §§ 193.2057 and 193.2059 we are changing the referenced sections of the 1996 edition to the corresponding sections of the 2001 edition. Also, throughout part 193, we are changing the designation “ANSI/NFPA 59A” to “NFPA 59A,” as the 2001 edition of NFPA 59A does not bear the designation ANSI/NFPA 59A, although the document is an approved American National Standard.

We do not consider this rulemaking to be a significant regulatory action under section 3(f) of Executive Order 12866 (58 FR 51735; Oct. 4, 1993). Therefore, the Office of Management and Budget (OMB) has not received a copy of this rulemaking to review. We also do not consider this rulemaking to be significant under DOT regulatory policies and procedures (44 FR 11034: February 26, 1979).

We prepared a Regulatory Evaluation of the final rules and a copy is in the docket. The evaluation concludes operators would incur only a minimum amount of cost, if any, to comply with the rules.

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), RSPA must consider whether rulemaking actions would have a significant economic impact on a substantial number of small entities. This final rule is consistent with customary practices in the gas pipeline industry. Therefore, based on the facts available about the anticipated impacts of this rulemaking, I certify that this rulemaking will not have a significant impact on a substantial number of small entities.

We have analyzed the final rules according to the principles and criteria contained in Executive Order 13084, “Consultation and Coordination With Indian Tribal Governments.” Because the rules would not significantly or uniquely affect the communities of the Indian tribal governments nor impose substantial direct compliance costs, the funding and consultation requirements of Executive Order 13084 do not apply.

Title: Recordkeeping for LNG Facilities.

Summary: Section 193.2017(c) adds a minor information collection requirement to existing information collection requirements. Under this new requirement, LNG plant operators must review and update their part 193 plans and procedures at least once every 2 calendar years. They must also do so whenever a plant component changes significantly. However, we believe most operators routinely carry out reviews and updates while carrying out their plans and procedures. So we believe the burden of complying with the new review-and-update requirement would be minimal. Because the additional paperwork burden of this rule is likely to be minimal, we believe that submitting an analysis of the burdens to OMB under the Paperwork Reduction Act is unnecessary.

Use: Records are kept to facilitate personnel training and other LNG plant activities.

Respondents (Including the Number of): There are 150 gas pipeline operators.

OMB Control Number: 2137-0048.

Average Burden Estimate per Operator: 126.7 hours per year.

Annual Burden Estimate: 19,000 hours per year.

Frequency: Biennial and on occasion.

This rulemaking does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $100 million or more to either State, local, or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objective of the rule.

We have analyzed the final rules for purposes of the National Environmental Policy Act (42 U.S.C. 4321 et seq. ). Because the rules parallel present requirements or practices, we have decided they will not significantly affect the quality of the human environment. An environmental assessment document is available for review in the docket.

We have analyzed the final rules according to the principles and criteria contained in Executive Order 13132 (“Federalism”). None of the rules (1) has substantial direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government; (2) imposes substantial direct compliance costs on State and local governments; or (3) preempts state law. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.

This rulemaking is not a “Significant energy action” under Executive Order 13211. 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. Further, this rulemaking has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action.

On October 1, 2002, NHTSA published a final rule amending the requirements of Federal Motor Vehicle Safety Standard (FMVSS) No. 213, Child restraint systems , for child restraint labels and the written instructions that accompany child restraints (67 FR 61523; Docket No. 2001-10916.) The October 2002 rulemaking was in response to a mandate by Congress as part of the Transportation Recall Enhancement, Accountability, and Documentation Act (TREAD Act) that required NHTSA to consider whether to prescribe clearer and simpler labels and instructions for child restraints (Pub. L. 106-414, 114 Stat. 1880 (2002)). Among other things, the October 2002 final rule changed the location requirements for some labels, required most labels to be white with black text, simplified the required language of the statements on the labels, mandated that the required label statements be in a bulleted list headed by the statement “WARNING! DEATH or SERIOUS INJURY can occur,” and required a new diagram showing the child restraint installed by means of a child restraint anchorage system that conforms with FMVSS No. 225, Child restraint anchorage systems .

NHTSA received a petition for reconsideration of the October 2002 final rule from David E. Campbell & Associates, Inc. (Campbell; a consultant to child restraint manufacturers). The petition made four requests: to allow the bulleted warning list to be on separate, side-by-side labels; to extend the application of the “as appropriate” condition to the required statement concerning use of belt positioning seats with a child restraint anchorage system; to allow installation illustrations on the child restraint to be covered if the child restraint has been properly installed; and to correct an improper cross reference.

To reduce the misuse of child restraints, FMVSS No. 213 requires all restraints to be labeled with a warning regarding the consequences of not following instructions, followed by a bulleted list of mandated statements in a specified order. Campbell stated that the language mandated by S5.5.2(g)(1), when printed in the type size required by S5.5.2, could result in a label too large to fit in any single visible location available on the child restraint. Campbell further stated that this problem might be compounded by placing belt routing illustrations at the bottom of the label in order to optimize placement of product information.

Campbell requested that separate, side-by-side labels be allowed if (1) the mandated statements are in the specified sequence, and (2) each label that is not directly below one with the required heading start with the heading as specified in S5.5.2(g)(1). By allowing side-by-side labels, Campbell stated that manufacturers would have greater flexibility in placing the warning statement in visible locations on the restraint.

Agency Response: The agency has granted this request. S5.5.2 of FMVSS No. 213 is amended to make it clear that more than one label may be used for the required list of bulleted statements, including side-by-side labels.

In the preamble to the October 2002 final rule, we stated that the bulleted list is not required to be on a single label, so long as the separate components are attached to the child restraint in the correct order and without any intervening labels (67 FR at 61526). At that time, the agency envisioned one label component being placed directly below another label component. Given that the standard practice in reading the English language is to read left to right and top to bottom, this final rule further permits, under limited situations, the separate warning labels to be placed side-by-side. The alternate arrangement for this label is only permitted when available space on the child restraint would not allow a vertical arrangement of the list.

When the side-by-side arrangement is used, the required sequence must be maintained when reading the leftmost label from top to bottom, then the next rightmost label top to bottom. There must be no intervening labels.

We do not agree with the petitioner's suggestion that each separate label must restate the warning heading. We are concerned that multiple headings could overwhelm a consumer given the close proximity of the labels and the strong nature of the required heading (WARNING! DEATH or SERIOUS INJURY can occur). To maintain a clear and direct warning the heading must appear at the top of the first label in the sequence. We are not allowing the warning to appear in the subsequent portions of the label.

As amended by the October 2002 final rule, S5.5.2(g)(1)(ii) of FMVSS No. 213 requires a statement that directs consumers to install the restraint with the “vehicle's child restraint anchorage system if available or vehicle seat belt.” The petitioner pointed out that belt-positioning seats are not designed to be attached with a child restraint anchorage system and therefore, this statement is not applicable to belt-positioning seats. Further, Campbell stated that requiring this statement could cause confusion with another statement mandated for belt-positioning booster seats, which specifies, “use only the vehicle's lap and shoulder belt system when restraining the child in this booster seat.” S5.5.2(i)(1)(i). To avoid any potential confusion, Campbell recommended requiring the statement in S5.5.2(g)(1)(ii) only when appropriate.

Agency Response: The agency agrees that there was an error in requiring the S5.5.2(g)(1)(ii) statement on labels for belt-positioning seats, since those restraints are not designed to use child restraint anchorage systems. This document corrects that error by not requiring the statement for belt-positioning seats. 1

The October 2002 final rule amended FMVSS No. 213 to require installation information to be visible when the restraint is installed. Campbell expressed concern that the visibility requirement would mandate placing diagrams in a location away from the vehicle belt path and/or in a location less visible because of the limited space available on a child restraint. Campbell requested an amendment that would permit the restraint's installation diagrams to be covered by a vehicle belt when the restraint is properly installed using the belt, provided that the diagrams would be visible if the vehicle seat belt were not routed properly.

The petitioner cited two examples. The first example, the AngelRide Infant Car Bed, has a forward edge that, when the child restraint is installed, protrudes from the restraint in a triangular manner. Because the belt path is on the upper portion of the forward edge, Campbell stated that under the current requirement the only available location for the installation information would be on the lower portion below the protrusion. This location is visible if the person placing the child in the car bed is looking straight at the restraint from the front, but not visible if that person is looking down on the restraint from above, as is likely once the restraint is installed. Campbell reasoned that information placed along the seat belt routing path would be more visible during installation than information placed underneath a forward-facing overhang.

The second example is the type of restraint that has a detachable base. Typically, the installation diagrams for the base are located on the top surface, visible when the base alone is installed but not visible when the infant carrier is locked on the base. Campbell stated that the base is often installed without the carrier, and the installation instructions can be conveniently located on the top surface of the base. When the carrier is placed on the seat base so that it covers the instructions, the seat base has already been installed and secured.

Agency Response: The agency does not agree with the recommendation by Campbell to allow information to be covered by a properly routed seat belt. NHTSA does not want the information to be covered by the belt because if it were, consumers would have to unbuckle and undo or loosen the routing of the belt in order to review or double check the installation information. Vehicle belts are often misused when used to attach child restraints, by not being properly routed or tightened for a secure attachment of the restraint. NHTSA believes that labels should not be placed where to read them the vehicle belt would have to be detached, or its routing undone or loosened or otherwise manipulated, because the child restraint might not be re-secured properly. Consumers might also be discouraged from double checking the information to determine whether they have properly attached the restraint when they would have to undo the belt to do so. Accordingly, this request to allow installation information to be covered when a restraint is properly installed is denied, with one caveat, noted below. 2

NHTSA is granting the request with respect to restraints with a detachable base. For child restraints with a detachable base, typically the base is installed separately from the carrier portion of the restraint and left attached to the vehicle. Because the base is normally secured without the carrier, in the past some manufacturers have placed the labels with the installation information on the top surface of the base. This allows the user of the system to conveniently reference the installation diagrams and information while installing the base. Even after the carrier portion has been attached to the base, the carrier portion can be easily removed to reference the information related to installation and securing while the base remains secured to the vehicle.

Accordingly, this final rule amends the visibility requirements so that, for child restraints with a detachable base, the information regarding installation and the securing of the child need only be visible when the base alone is installed. Because the detachable base is typically installed without the carrier portion attached, allowing installation information to be on the base places that information in an easily referenced location during installation. Further, because of the ease and frequency with which the carrier portion can be removed from the base, the information remains in a location that is easily accessible by a child restraint user.

S5.5.2(g)(1) of the October 2002 final rule intended to specify that labels must have a heading meeting the requirements of S5.5.3(k)(3)(i), i.e. , the heading area must be yellow with the word “warning” and the alert symbol in black. Campbell notes that S5.5.2(g)(1) erroneously refers to S5.5.2(k)(4)(i) rather than S5.5.2(k)(3)(i). This final rule corrects the cross-reference. In addition, the cross-reference in S5.5.5(g)(1), relating to the heading of the labeling of built-in child restraints, is corrected in the same manner.

Children who have outgrown child safety seats should use a booster seat until they are at least 8 years old, unless they are 4 feet 9 inches tall. To clearly convey this message, the October 2002 final rule permitted seats that can only be used as belt-positioning seats to be labeled only with the maximum height of the children for whom the seat is recommended. References to weight are no longer required for these restraint systems. However, to properly reflect the entire message, a minimum height for the children must also be included on the label. Providing a minimum height recommendation will help prevent children from being placed in booster seats prematurely and will help keep children in “toddler” restraints (child restraints with internal harness systems) until they can be safely accommodated by a booster seat. To convey the entire message as intended by the October 2002 final rule, this document amends the labeling requirement for restraints that can only be used as booster seats to require the specification of both the minimum and maximum height of the children for whom the seat can be used. This document amends the relevant requirements for both add-on and built-in booster seats. See, S5.5.2 and S5.5.5 of FMVSS No. 213 as amended below.

This rule is effective in 180 days. We believe that this is sufficient time for CRS manufacturers to redesign their labels in accordance with the technical correction described above. To permit manufacturers the flexibility of the other amendments made by this document, we are permitting early compliance.

NHTSA has considered the impact of this rule under Executive Order 12866 and the Department of Transportation's regulatory policies and procedures. This rulemaking document was not reviewed under E.O. 12866, “Regulatory Planning and Review.” This action has been determined to be “nonsignificant” under the Department of Transportation's regulatory policies and procedures. The agency concludes that the impacts of the amendments are so minimal that preparation of a full regulatory evaluation is not required. The October 2002 final rule estimated that the cost of changing the location and text of the labels to be only $.01 to $.03 per label. The amendments made by today's final rule will not change that estimate. This final rule does provide slightly more flexibility in the placement of required warning labels.

NHTSA has considered the impacts of this rulemaking action under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). I certify that the amendment will not have a significant economic impact on a substantial number of small entities. The rule will provide manufacturers slightly more flexibility in placing mandatory warning labels on child restraint systems.

Under the Paperwork Reduction Act of 1995, a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. This document does not establish any new information collection requirements.

NHTSA has analyzed this amendment for the purposes of the National Environmental Policy Act and determined that it will not have any significant impact on the quality of the human environment.

Executive Order 13132 requires NHTSA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “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.” Under Executive Order 13132, the agency may not issue a regulation with Federalism implications, that imposes substantial direct costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or the agency consults with State and local officials early in the process of developing the proposed regulation. NHTSA may also not issue a regulation with Federalism implications that preempts State law unless the agency consults with State and local officials early in the process of developing the proposed regulation.

The agency has analyzed this rulemaking action in accordance with the principles and criteria contained in Executive Order 13132 and has determined that it does not have sufficient federalism implications to warrant consultation with State and local officials or the preparation of a federalism summary impact statement. The rule will have no substantial effects on the States, or on the current Federal-State relationship, or on the current distribution of power and responsibilities among the various local officials.

This rule does not have any retroactive effect. Under section 49 U.S.C. 30103, whenever a Federal motor vehicle safety standard is in effect, a state may not adopt or maintain a safety standard applicable to the same aspect of performance which is not identical to the Federal standard, except to the extent that the state requirement imposes a higher level of performance and applies only to vehicles procured for the State's use. Section 49 U.S.C. 30161 sets forth a procedure for judicial review of final rules establishing, amending or revoking Federal motor vehicle safety standards. That section does not require submission of a petition for reconsideration or other administrative proceedings before parties may file suit in court.

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) directs us to use voluntary consensus standards in regulatory activities unless doing so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g. , materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies, such as the Society of Automotive Engineers (SAE). The NTTAA directs us to provide Congress, through OMB, explanations when we decide not to use available and applicable voluntary consensus standards.

The agency searched for, but did not find any voluntary consensus standards relevant to this final rule.

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires Federal agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million in any one year (adjusted for inflation with base year of 1995). Before promulgating a rule for which a written statement is needed, section 205 of the UMRA generally requires NHTSA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows NHTSA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the agency publishes with the final rule an explanation why that alternative was not adopted.

This final rule will not impose any unfunded mandates under the Unfunded Mandates Reform Act of 1995. This rule will not result in costs of $100 million or more to either State, local, or tribal governments, in the aggregate, or to the private sector. Thus, this rule is not subject to the requirements of sections 202 and 205 of the UMRA.

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