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

This rule is excluded from the scope of Executive Order 12372, Intergovernmental Consultation, which may require consultation with State and local officials. A notice of final rule entitled “Department Programs and Activities Excluded from Executive Order 12372,” (50 FR 47034) exempted RUS loans and loan guarantees to from coverage under this order.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. RUS has determined that this rule meets the applicable standards provided in section 3 of the Executive Order. In addition, all state and local laws and regulations that are in conflict with this rule will be preempted. No retroactive effect will be given to this rule and in accordance with section 212(e) of the Department of Agriculture Reorganization Act of 1994 (7 U.S.C. 6912(e)) administrative appeal procedures, if any, must be exhausted before an action against the Department or its agencies may be initiated.

This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on distribution of power and responsibilities among the various levels of government. Under Executive Order 13132, this rule does not have sufficient federalism implications to require preparation of a Federalism Assessment.

In accordance with the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) the Administrator of RUS certifies that this rule, if adopted, will not have significant economic impact on a substantial number of small entities. The rule serves to clarify the existing regulation and to generally streamline the review process for such actions. Most of the changes in this rule should result in modest cost savings and ease the regulatory compliance burden for affected applicants.

The reporting and record keeping requirements contained in the rule has been approved by the Office of Management and Budget (OMB) under OMB Control Number 0572-0099, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35).

The Administrator of RUS has determined that this rule will not significantly affect the quality of the human environment as defined by the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ) Therefore, this action does not require an environmental impact statement or assessment.

The programs covered by this proposed rule are listed in the Catalog of Federal Domestic Assistance programs under numbers 10.850, Rural Electrification Loans and Loan Guarantees; 10.851, Rural Telephone Loans and Loan Guarantees; 10.852, Rural Telephone Bank Loans; 10.857, Rural Broadband Access Loans and Loan Guarantees, 10.760, Water and Waste Disposal System for Rural Communities; 10.764, Resource Conservation Development Loans, and 10.765, Watershed Protection and Flood Prevention Loans.

This catalog is available on a subscription basis from the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402-9325. Telephone: (202) 512-1800.

This rule contains no Federal mandates (under the regulatory provision of Title II of the Unfunded Mandates Reform Act of 1995) for State, local, and tribal governments or the private sector. Thus, this rule is not subject to the requirements of sections 202 and 205 of the Unfunded Mandates Reform Act.

RUS requires borrowers and grant recipients to meet applicable requirements mandated by Federal statutes and regulations to obtain RUS financing. One such requirement is compliance with building safety provisions of the Earthquake Hazards Reduction Act of 1977, as amended (42 U.S.C. 7701 et seq. ) as implemented pursuant to Executive Order 12699, Seismic Safety of Federal and Federally Assisted or Regulated New Building Construction (3 CFR, 1990 Comp., pg. 269).

Subpart C of this part codifies the policies and requirements that RUS and RTB borrowers and grant recipients must meet for new building construction when using funds provided or guaranteed by RUS or RTB, or when obtained through a lien accommodation or subordination approved by RUS or RTB.

The Executive Order requires all Federal agencies to ensure that any new building which is leased for Federal uses or purchased or constructed with Federal assistance is designed and constructed in accordance with appropriate seismic design standards. Those standards must be equivalent to or exceed the seismic safety levels in the National Earthquake Hazards Reduction Program (NEHRP) recommended provisions for the development of seismic regulations for new buildings. The Executive Order charges the Interagency Committee on Seismic Safety in Construction (ICSSC) with recommending appropriate and cost-effective seismic design, construction standards and practices.

According to a recent study commissioned by the ICSSC, the model codes and standards that are equivalent to the 1997 NEHRP Recommended Provisions are the 2000 International Building Code and the ASCE 7-98 Minimum Design Loads for Buildings and Other Structures. These codes will be added to the list of codes equivalent to the 1994 or 1997 NEHRP Recommended Provisions. In addition, clarification is added to the acknowledgment.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Saab Model SAAB SF340A and SAAB 340B series airplanes was published in the Federal Register on March 5, 2004 (69 FR 10374). That action proposed to require relocating the most outboard latch in the right-hand leading edge of the refueling panel, and sealing of the original latch-mounting cutout.

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

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

The FAA estimates that 273 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. Required parts will cost approximately $310 per airplane. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $120,120, or $440 per airplane.

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

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Boeing Model 767-200, -300, and -300F series airplanes was published in the Federal Register on December 5, 2003 (68 FR 67973). That action proposed to require performing, for both main landing gear (MLG), gap measurements of the upper and lower joint gaps; an ultrasonic inspection of the outer cylinder of the MLG for cracks between the downlock fitting attach lugs; and follow-on and corrective actions if necessary.

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

One commenter requests that an option for overhaul or replacement be added to paragraph (b) of the proposed AD. The commenter notes that paragraph (b) of the proposed AD only states to do a gap measurement and inspection per Part 1 of the service bulletin and does not give operators an option to do the overhaul or replacement per Part 2 of the service bulletin. The commenter contends that overhauled or new outer cylinders would have been adequately inspected prior to installation, and the identified unsafe condition would have been detected and corrected.

The FAA agrees with the commenter that an option to do the inspection should be added allowing operators to replace the outer cylinder of the main landing gear with a new or overhauled outer cylinder. New or overhauled outer cylinders would have been inspected prior to the installation, and the identified unsafe condition would have been detected and corrected. We have revised paragraph (b) of the final rule and added paragraph (b)(2) to the final rule to give operators an option to “Replace the outer cylinder of the main landing gear with a new or overhauled outer cylinder per Part 2 of the service bulletin.”

One commenter requests that the reference in paragraph (e) of the proposed AD be changed from the “service bulletin” to “CMM 32-11-40.” The commenter notes that the service bulletin does not contain the repair limits; the service bulletin refers to CMM 32-11-40 for repair limits. The commenter concludes that it may be more correct to refer CMM 32-11-40 for repair limits.

We do not agree with the commenter's request to change the reference in paragraph (e) of the proposed AD to CMM 32-11-40. Paragraph (e) of the proposed AD states, “* * * the repair limits specified in the service bulletin,” and the service bulletin specifies the repair limits in CMM 32-11-40. Therefore, the repair limits are adequately defined by the wording in the AD. No change to the final rule is necessary in this regard.

One commenter requests that we revise “Parts Installation” paragraph (g) of the proposed AD to allow operators to install outer cylinders that have been inspected internally during overhaul. The commenter contends that overhauled outer cylinders would have been inspected prior to installation, and the identified unsafe condition would have been detected and corrected. The commenter recommends revising paragraph (g) of the proposed AD to “As of the effective date of this AD, no person may install a MLG on any airplane, unless the outer cylinder of the MLG has been inspected internally during overhaul, or externally per Boeing Service Bulletin 767-32A0196, Revision 2, and follow-on and corrective actions have been accomplished per Boeing Service Bulletin 767-32A0196, Revision 2, dated May 15, 2003.”

We agree with the commenter that “Parts Installation” paragraph (g) of the proposed AD should be revised. However, we do not agree with the commenter's suggestion to add the phrase “* * * internally during overhaul, or externally per Boeing Service Bulletin 767-32A0196, Revision 2,” to paragraph (g) of the proposed AD. Operators may not receive inspection paperwork for overhauled outer cylinders so it may be difficult for operators to show compliance for outer cylinders “inspected internally during overhaul.” We do agree with the commenter that overhauled outer cylinders would not have the identified unsafe condition. In addition, new outer cylinders would also not have the identified unsafe condition. Accordingly, we have revised “Parts Installation” paragraph (g) of the final rule by adding “or unless the outer cylinder is new; or unless the outer cylinder has not been installed on any airplane since its last overhaul.”

One commenter requests that the details for gap measurements be clarified by revising paragraph (b) of the proposed AD to “* * * do a gap measurement on the upper and lower attach bolts for both drag and side strut downlock fittings in accordance with Figure 1 of Boeing Service Bulletin 767-32A0196 * * *.” The commenter notes that the service bulletin specifies that two sets of gap measurements be taken for the side and drag strut downlock fittings.

We do not agree with the commenter's request to clarify the details for gap measurements. The wording in the proposed AD is taken from the steps in Figure 1 of the service bulletin and the actions are to be done “per Part 1 of the service bulletin.” Part 1 of the service bulletin contains drawings and notes that show the details for the gap measurements. Therefore, there is not a need for a greater level of detail in the final rule.

One commenter requests text be added to the proposed AD that shows gap measurements can be used to provide data to support the inspection and that the manufacturer may be contacted to interpret the gap measurement results.

We do not agree with the commenter's request to add text to show gap measurements can be used to provide data to support the inspection and that the manufacturer may be contacted. Contacting the manufacturer for assistance with the inspection is not a mandatory action and, therefore, is not included in the proposed AD. The service bulletin does state that if operators contact the manufacturer, the manufacturer needs the gap measurement data. There is no need to restate this fact in the proposed AD. Operators should have gap measurement data available if needed, as paragraph (b) of the proposed AD requires operators to take gap measurements. No change is necessary to the final rule.

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

There are approximately 833 airplanes of the affected design in the worldwide fleet. The FAA estimates that 353 airplanes of U.S. registry will be affected by this AD, that it would take approximately 16 work hours per airplane to accomplish the required gap measurement and 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 $367,120, or $1,040 per airplane.

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

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to all Boeing Model 737-200C series airplanes was published in the Federal Register on February 19, 2004 (69 FR 7706). That action proposed to require repetitive inspections of the Station 348.2 frame to detect cracking under the stop fittings and intercostal flanges at Stringers 14L, 15L, and 16L; and corrective action if necessary.

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

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

There are approximately 78 airplanes of the affected design in the worldwide fleet. The FAA estimates that 15 airplanes of U.S. registry will be affected by this AD, that it will take approximately 18 work hours per airplane to accomplish the required inspections, and that the average labor rate is $65 per work hour. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $17,550, or $1,170 per airplane, per inspection cycle.

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

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Boeing Model 747 series airplanes was published in the Federal Register on April 29, 2003 (68 FR 22639). That action proposed to require a one-time inspection of the potable water and drain lines in the forward and aft cargo compartments for indications of overheating of the heater tape, exposed foam insulation, missing or damaged protective tape, or debris around the potable water fill and drain lines; and corrective action, if necessary.

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

Three commenters request that paragraph (b)(1) of the notice of proposed rulemaking (NPRM) be changed so that, after the inspection required by paragraph (b)(1), either replacement or deactivation of the heater tape prior to further flight is allowed. The commenters note that Figure 1 of the service bulletin states that operators may deactivate the heater tape prior to further flight, and replace the heater tape when materials, time, and manpower are available.

One of the commenters states that, due to the proposed 90-day compliance time in the NPRM, it is important not to ground airplanes and to give operators the flexibility to accomplish the heater tape replacement at a more opportune time. Another commenter suggests that a compliance time not to exceed 90 days after the completion of the inspection required by paragraph (b)(1) of the NPRM be allowed so operators can schedule the heater tape replacement at a convenient time.

We agree with the commenters' requests to allow deactivation of the heater tape prior to further flight. We have determined that this action will not affect safety because once the heater tape is deactivated it cannot become overheated. Paragraph (b)(1) of this final rule has been changed accordingly.

We also agree with the commenter's request for a compliance time of within 90 days after the date of the inspection required by paragraph (b)(1) of this AD for operators to replace the heater tape. We find that this is an acceptable amount of time because, as previously mentioned, once the heater tape is deactivated it cannot become overheated. Paragraph (b)(1) of this final rule has been changed accordingly.

One commenter requests either removing the words “prior to further flight” or changing the wording of paragraph (b)(2). This paragraph requires that any exposed foam insulation over the heater tape be covered with a continuous wrap of protective tape, and replacement of any missing or damaged protective tape over the heater tape prior to further flight. We infer that the basis for this request is to give operators the flexibility to accomplish the actions required in paragraph (b)(2) of the AD at a more convenient time.

We agree with the commenter's request to change the wording of paragraph (b)(2) of this AD. We will include a compliance time of within 90 days after the date of the inspection required by paragraph (b)(2) for operators to install or replace protective wrap in areas where the wrap is missing or damaged. We find that this compliance time will not compromise safety because the protective tape is a preventative measure and is not directly related to overheating of the heater tape. Paragraph (b)(2) of this final rule has been changed accordingly.

One commenter requests the option to deactivate the heater tape for the potable water system per the procedures in the applicable MEL, instead of following the procedures specified in Figure 1 of Boeing Alert Service Bulletin 747-30A2079, dated December 12, 2002. The commenter implies that, since the MEL does not require capping and stowing the wires to the heater tape as the service bulletin does, the MEL procedure is more convenient for an operator to accomplish.

We agree with the commenter's request to allow deactivation of the heater tape per the procedures in the applicable MEL as an alternative to accomplishing the procedures specified in the service bulletin. We have determined that this change will not compromise safety. Paragraph (b)(1) of this final rule has been changed accordingly.

One commenter requests that the term “visually accessible” used in paragraphs (a) and (b) of the NPRM be defined as “only those areas that can be visually accessed and do not require the disassembly of cargo wall liners.” The commenter states that Boeing Alert Service Bulletin 747-30A2079, dated December 12, 2002, includes the inspection of heater tapes that are located behind cargo wall liners. The areas located behind the cargo wall liners are not visually accessible and are not susceptible to debris collection, therefore they should not be required to be inspected.

We agree with the commenter that the term “visually accessible” should be clarified. The intent of the NPRM was to require inspection of only the visually accessible areas below the cargo floor in the forward and aft cargo compartments. Since publication of the NPRM, Boeing has issued and the FAA has approved Revision 1 of Boeing Service Bulletin 747-30A2079, dated October 16, 2003. Revision 1 of the service bulletin deletes the inspection of areas behind the cargo wall liners and specifies that only areas not covered by floor panel or sidewall panels should be inspected. The term “visually accessible” has been deleted from paragraphs (a) and (b) of this final rule and replaced with “areas not covered by floor panels or sidewall panels.” As a result of this change, Note 2 in the body of the NPRM has been omitted from this final rule. Note 2 stated “The inspection of potable water and drain lines in areas not covered by floor panels or sidewall panels areas does not require removal of floor panels.” The subsequent Notes in this final rule have been renumbered accordingly.

One commenter requests that a distinction be made between the types of insulation used in the cargo compartment. The commenter states that the wording of one of the caution notes in Boeing Alert Service Bulletin 747-30A2079, dated December 12, 2002, specifies “a minimum clearance of one inch (2.54 centimeters) between the heater tape and any insulation.” The commenter states that some airplanes may have foam insulation surrounding the heater tape, and that the one-inch clearance should be between the heater tape and the floor or fuselage fiberglass insulation, not the foam insulation surrounding the potable water lines.

We agree with the commenter's request to make a distinction between the types of insulation located in the cargo compartment. It was not the intent of the NPRM or the service bulletin to require a one-inch separation between the foam insulation and the heater tape, especially since the foam insulation was designed to be installed directly over the heater tape. Since publication of the NPRM, Boeing has issued and the FAA has approved Revision 1 of Boeing Service Bulletin 747-30A2079, dated October 16, 2003. Revision 1 of the service bulletin deletes the caution note cited by the commenter, which should eliminate the confusion regarding the need for clearance between the heater tape and foam insulation. Revision 1 will be cited in this final rule as the appropriate source of service information; however, paragraph (d) of this AD gives credit to operators who accomplished the actions required by this AD, before the effective date of this AD, per Boeing Alert Service Bulletin 747-30A2079, dated December 12, 2002.

The same commenter also requests that the AD specify that foam insulation should only be removed if it exhibits signs of overheating, or that the AD reference a subsequent service bulletin revision which contains this information. One of the caution notes in Boeing Alert Service Bulletin 747-30A2079, dated December 12, 2002, implies that if foam insulation is installed, it must be removed to verify heater tape pitch. The work instructions in Figure 1 of the service bulletin only gives procedures for inspection of the heater tape and foam insulation for signs of overheating. The work instructions do not specify that the foam insulation should be removed to verify heater tape pitch.

We agree with the commenter's request to reference a subsequent revision of the service bulletin. It was not the intent of the NPRM to require removal of undamaged foam insulation to verify the installation pitch of the heater tape. As previously stated, the caution note, which may have caused confusion regarding the intent of the service bulletin, was deleted from Revision 1 of Boeing Service Bulletin 747-30A2079, dated October 16, 2003. Revision 1 will be cited in this final rule as the appropriate source of service information.

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

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

This is considered to be interim action until final action is identified, at which time the FAA may consider further rulemaking.

After the NPRM was issued, we reviewed the figures we use to calculate the labor rate to do the required actions. To account for various inflationary costs in the airline industry, we find it appropriate to increase the labor rate used in these calculations from $60 per work hour to $65 per work hour. The economic impact information, below, has been revised to reflect this increase in the specified hourly labor rate.

There are approximately 1,129 airplanes (968 passenger and 161 freighter) of the affected design in the worldwide fleet. We estimate that 250 airplanes of U.S. registry will be affected by this AD. We provide the following cost estimates associated with this AD:

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 .

On November 19, 1979, the Commission issued a final rule in response to a directive in section 324 of the Energy Policy and Conservation Act (“EPCA”), 42 U.S.C. 6201. The Rule requires the disclosure of energy efficiency, consumption, or cost information on labels and in retail sales catalogs for eight categories of appliances, and mandates that the energy costs, consumption, or efficiency ratings be based on standardized test procedures developed by DOE. The cost information obtained by following the test procedures is derived by using the representative average unit energy costs provided by DOE. Table 1 in section 305.9(a) of the Rule sets forth the representative average unit energy costs to be used for all cost-related requirements of the Rule. As stated in section 305.9(b), the Table is to be revised periodically on the basis of updated information provided by DOE. Additional information about the Commission's Appliance Labeling Rule can be found at www.ftc.gov/appliances.

On January 27, 2004, DOE published the most recent figures for representative average unit energy costs (69 FR 3907). These energy cost figures are for manufacturers to use, in accordance with the guidelines that appear below, to calculate the required secondary annual operating cost figures at the bottom of required EnergyGuides for refrigerators, refrigerator-freezers, freezers, dishwashers, clothes washers, water heaters, and room air conditioners. The energy cost figures also are for manufacturers of central air conditioners and heat pumps to use, also in accordance with the below guidelines, to calculate annual operating cost for required fact sheets and in approved industry directories listing these products. 1 The Commission is revising Table 1 to reflect these latest cost figures, as set forth below. The current and future obligations of manufacturers with respect to the use of DOE's cost figures are as follows:

Manufacturers must continue to use the DOE cost figures that were published and in effect the year the ranges of comparability last changed for the applicable covered product. The cost figures currently applicable to each product category are detailed below. Manufacturers must continue to use these figures until new ranges of comparability for an applicable product are published by the Commission in the future. For example, if the ranges of comparability for a given product last changed in the year 2001, manufacturers should continue to use the 2001 DOE energy cost figures until the Commission announces otherwise.

Manufacturers of refrigerators, refrigerator-freezers, and freezers must continue to derive the operating cost disclosures on labels by using the 2001 Average Representative Unit Costs (8.29 cents per kiloWatt-hour for electricity) published by DOE on March 8, 2001 (66 FR 13917), and by the Commission on May 21, 2001 (66 FR 27856), that were in effect when the current 2001 ranges of comparability for these products were published. 3 Manufacturers must continue to use the foregoing DOE cost figures until the Commission publishes new ranges of comparability and states that operating cost disclosures must be based on the DOE cost figure for electricity then in effect.

Manufacturers of room air conditioners must continue to derive the operating cost disclosures on labels by using the 1995 Average Representative Unit Costs for electricity (8.67 cents per kiloWatt-hour) that were published by DOE on January 5, 1995 (60 FR 1773), and by the Commission on February 17, 1995 (60 FR 9296), and that were in effect when the current (1995) ranges of comparability for these products were published. 4 Manufacturers of room air conditioners must continue to use the 1995 DOE cost figures until the Commission publishes new ranges of comparability and states that operating cost disclosures must be based on the DOE cost figure for electricity then in effect.

Manufacturers of storage-type water heaters must continue to derive the operating cost on labels using the 1994 DOE cost figures (8.41 cents per kiloWatt-hour for electricity, 60.4 cents per therm for natural gas, $1.05 per gallon for No. 2 heating oil, and 98.3 cents per gallon for propane), that were in effect when the 1994 ranges of comparability for storage-type water heaters were published. 5 Manufacturers of storage-type water heaters must continue to use the 1994 DOE cost figures until the Commission publishes new ranges of comparability and states that operating cost disclosures must be based on the DOE cost figures for energy then in effect.

Manufacturers of heat pump water heaters must continue to derive the operating cost disclosures on labels by using the 2002 Average Representative Unit Costs for electricity (8.28 cents per kiloWatt-hour) that were published by DOE on April 24, 2002 (67 FR 20104), and by the Commission on June 7, 2002 (67 FR 39269), and that were in effect when the current (2002) ranges of comparability for these products were published. 6 Manufacturers of heat pump water heaters must continue to use the 2002 DOE cost figures until the Commission publishes new ranges of comparability and states that operating cost disclosures must be based on the DOE cost figure for electricity then in effect.

Manufacturers of gas-fired instantaneous water heaters must continue to base the required secondary operating cost disclosures on labels on the 1999 Average Representative Unit Costs for natural gas (68.8 cents per therm) and propane (77 cents per therm) that were published by DOE on January 5, 1999 (64 FR 487), and by the Commission on February 17, 1999 (64 FR 7783), and that were in effect when the 1999 ranges of comparability for these products were published. 7 Manufacturers must continue to use the 1999 DOE cost figures until the Commission publishes new ranges of comparability and states that operating cost disclosures must be based on the DOE cost figures for natural gas and propane then in effect.

Manufacturers of compact dishwashers must continue to base the required secondary operating cost disclosures on labels on the 2002 Average Representative Unit Costs for electricity (8.28 cents per kiloWatt-hour) and natural gas (65.6 cents per therm) that were published by DOE on April 24, 2002 (67 FR 20104), and by the Commission on June 7, 2002 (67 FR 39269), and that were in effect when the 2002 ranges of comparability for these products were published. Manufacturers of standard dishwashers must base the disclosures of estimated annual operating cost required at the bottom of EnergyGuide labels for standard-sized dishwashers on the 2003 Representative Average Unit Costs of Energy for electricity (8.41 cents per kiloWatt-hour) and natural gas (81.6 cents per therm) that were published by DOE on April 9, 2003 (68 FR 17361) and by the Commission on May 5, 2003 (68 FR 23584). 8 Manufacturers of dishwashers must continue to use these cost figures until the Commission publishes new ranges of comparability and states that operating cost disclosures must be based on the DOE cost figures for electricity and natural gas then in effect.

Manufacturers of compact clothes washers must base the disclosures of estimated annual operating cost required at the bottom of EnergyGuide labels dfor standard-sized dishwashers on the 2003 Representative Average Unit Costs of Energy for electricity (8.41 cents per kilowatt-hour) and natural gas (81.6 cents per therm) that were published by DOE on April 9, 2003 (68 FR 17361) and by the Commission on May 5, 2003 (68 FR 23584). Manufacturers of standard clothes washers must continue to derive the operating cost disclosures on labels by using the 2000 Average Representative Unit Costs for electricity (8.03 cents per kiloWatt-hour) and natural gas (68.8 cents per therm) that were published by DOE on February 7, 2000 (65 FR 5860), and by the Commission on April 17, 2000 (65 FR 20352), and that were in effect when the current (2000) ranges of comparability for these products were published. 9 Manufacturers of clothes washers must continue to use the 2000 DOE cost figures until the Commission publishes new ranges of comparability and states that operating cost disclosures must be based on the DOE cost figures for electricity and natural gas then in effect.

In the 2004 document announcing whether there will be new ranges of comparability for central air conditioners and heat pumps, the Commission also will announce that operating cost disclosures for these products on fact sheets and in industry directories must be based on the 2003 DOE cost figure for electricity beginning on the effective date of that document.

Manufacturers of products covered by section 323(c) of EPCA, 42 U.S.C. 6293(c), but not by the Appliance Labeling Rule (clothes dryers, television sets, kitchen ranges and ovens, and space heaters) must use the 2004 DOE energy costs in all operating cost representations beginning July 29, 2004.

The amendments published in this document involve routine, technical and minor, or conforming changes to the Rule's labeling requirements. These technical amendments merely provide a routine change to the cost information in the Rule. Accordingly, the Commission finds for good cause that public comment and a 30-day effective date for these technical, procedural amendments are impractical and unnecessary (5 U.S.C. 553(b)(A)(B) and (d)).

The provisions of the Regulatory Flexibility Act relating to a Regulatory Flexibility Act analysis (5 U.S.C. 603-604) are not applicable to this proceeding because the amendments do not impose any new obligations on entities regulated by the Appliance Labeling Rule. These technical amendments merely provide a routine change to the cost information in the Rule. Thus, the amendments will not have a “significant economic impact on a substantial number of small entities.” 5 U.S.C. 605. The Commission has concluded, therefore, that a regulatory flexibility analysis is not necessary, and certifies, under Section 605 of the Regulatory Flexibility Act (5 U.S.C. 605(b)), that the amendments announced today will not have a significant economic impact on a substantial number of small entities.

In a 1988 document (53 FR 22113), the Commission stated that the Rule contains disclosure and reporting requirements that constitute “information collection requirements” as defined by 5 CFR 1320.7(c), the regulation that implements the Paperwork Reduction Act. 10 The Commission noted that the Rule had been reviewed and approved in 1984 by the Office of Management and Budget (“OMB”) and assigned OMB Control No. 3084-0068. OMB has extended its approval for its recordkeeping and reporting requirements until September 30, 2004. The amendments now being adopted do not change the substance or frequency of the recordkeeping, disclosure, or reporting requirements and, therefore, do not require further OMB clearance.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B) and 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for not publishing an NPRM and for making this rule effective less than 30 days after publication in the Federal Register . Publishing a NPRM would be contrary to public interest since immediate action is necessary to safeguard vessels and spectators from a new high-speed ferry operating out of Rochester, New York. This is the first high-speed ferry of its kind on the Great Lakes. As such, the general boating public will be unfamiliar with the handling characteristics of such a large high-speed vessel in the area. The Captain of the Port Buffalo has determined that immediate temporary regulations are required to ensure the safety of vessels and spectators in this new environment.

In addition, immediate implementation of this rule is necessary to ensure the protection of the M/V Spirit of Ontario from threats posed by hostile entities and help protect maritime transportation and commerce. The events of September 11, 2001, as well as what has occurred since then, highlight the fact that additional security steps must be taken to protect the public from possible acts of terrorism. This security and safety zone is designed to minimally impact the public while providing a reasonable level of protection and safety.

In addition, after the Coast Guard becomes more familiar during daily operations of the high-speed ferry, the Coast Guard will pursue a permanent rule through normal notice and comment procedures. This will allow the public to give more valuable input after they have the opportunity to see first-hand the impact of hazards such as wake and jet-wash from the high-speed ferry. Furthermore, this temporary rule also allows the public to comment regarding the immediate impact of these regulations. These comments may also aid in the development of permanent regulations.

This temporary final rule is being established to ensure that precautions are taken prior to the initial arrival and initial operations of the M/V Spirit of Ontario in late May, 2004. This safety and security zone will consist of two different exclusionary zones depending on the location of the high-speed ferry. In the Genesee River, the zone will consist of all navigable waters and adjacent shoreline within 25 yards of the vessel. On Lake Ontario, the zone will consist of all navigable waters within 100 yards of the high-speed ferry.

Vessels constrained by their draft are permitted to enter the exclusionary zone for the purposes of safe navigation. When vessels enter the zone under these circumstances, they should only maintain the minimum speed and course necessary for safe navigation.

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. It has not been reviewed by the Office of Management and Budget 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 a portion of Lake Ontario and the Genesee River, the effect of this rule will not be significant because: (i) the zone is limited in size such that other vessels may pass safety outside the zone; (ii) the Captain of the Port, or the Captain of the Port's designated representative, which is the on-scene patrol commander may authorize vessels to pass within the exclusionary zone on a case by case basis.

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. This rule does not require a general notice of proposed rulemaking and, therefore, is exempt from the requirements of the Regulatory Flexibility Act. Although this rule is exempt, we have reviewed it for potential economic impact on small entities.

Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule would affect the following entities, some of which may be small entities: The owners or operators of vessels intending to operate in the vicinity of the M/V Spirit of Ontario in the navigable waters of the United States. This rule would not have a significant economic impact on a substantial number of small entities for the following reasons: (i) The security and safety zones are limited in size and vessels may safely pass outside the zone; (ii) the Captain of the Port, or the Captain of the Port's designated representative, which is the on-scene patrol commander may authorize vessels to pass within the exclusionary zone on a case by case basis.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule will have a significant economic impact on it, please submit a comment to the Docket Management Facility at the address under ADDRESSES. In your comment, explain why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. The Coast Guard received no requests for assistance.

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 considered the environmental impact of this rule and concluded that under figure 2-1, paragraph (34)(g) of Commandant Instruction M16475.lD, that this rule is categorically excluded from further environmental documentation. This rule fits this categorical exclusion because it is a security and safety zone. A Categorical Exclusion Determination is available in the docket for inspection and copying where indicated under ADDRESSES.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Good cause exists for not publishing an NPRM and for making this regulation effective less than 30 days after Federal Register publication. Any delay encountered in this regulation's effective date would be impracticable and contrary to public interest since immediate action is needed to restrict and control maritime traffic while transiting in the waters of the Norwalk River under the Metro North Railroad Bridge, Norwalk, Connecticut. On April 11, 2004, the fendering under the western span of the bridge was completely destroyed by an allision with two stone barges. The bridge piers under the western span of the bridge are now exposed to the possibility of direct allision by traffic passing under the bridge. In addition, the damaged fendering system extends into the navigable channel and presents a hazard to navigation. The delay inherent in the NPRM process is contrary to the public interest and impracticable as immediate action is needed to prevent further allision with the bridge and prevent collision with the damaged fendering system that extends into the channel. A temporary safety zone was implemented (CGD01-04-050) effective from 11 a.m. on April 11, 2004 to 11:59 p.m. April 16, 2004. Due to the extensive damage on the bridge and the need for work to be approved by various State and Federal agencies prior to commencing, an extension of that temporary rulemaking is necessary.

On Sunday April 11, 2004 at approximately 2:40 a.m., two barges filled with stone being pushed by a barge hit the pilings of the fendering system on the western span of the Metro North Railroad Bridge over the Norwalk River, Norwalk, Connecticut. The allision by these barges completely destroyed the fendering system under the western span of the bridge. While the bridge has been determined to be safe for rail traffic, the lack of a fendering system, that is designed to protect bridge piers from direct allision, leaves the bridge piers exposed to the possibility of direct damage. Further damage to the bridge pier could impede rail traffic and the safety of the bridge and public utilizing the rail service. In addition, the fendering system that was damaged extends into the navigable channel and presents a hazard to navigation. The Coast Guard is establishing a safety zone in all waters of the Norwalk River in Norwalk, Connecticut within 100 yards of the Metro North Railroad Bridge. This safety zone is necessary to protect the safety of the bridge, bridge operations and public using the Metro North Railroad from further allision directly with the bridge piers. It is also necessary to prevent vessels from colliding with the damaged fendering system currently extending into the channel.

This regulation establishes a temporary safety zone on the waters of the Norwalk River within 100 yards of the Metro North Railroad Bridge, Norwalk Connecticut. This action is intended to prohibit vessel traffic in a portion of Norwalk River to prevent further damage to the Metro North Railroad Bridge, which may be caused due to lack of a fendering system around bridge piers around the western span of the Bridge. The safety zone is in effect from 12 a.m. on April 17, 2004 until 11:59 p.m. on June 15, 2004. Marine traffic may transit safely outside of the safety zone during the effective dates of the safety zone, allowing navigation of the rest of the Norwalk River except for the portion delineated by this rule. However, recreational vessels may pass on the east side of the channel, and commercial vessels may request permission to transit the area from the Captain of the Port, Long Island Sound. Other entry into this zone is prohibited unless authorized by the Captain of the Port, Long Island Sound.

Any violation of the safety zone described herein is punishable by, among others, civil and criminal penalties, in rem liability against the offending vessel, and license sanctions.

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 will be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. This regulation may have some impact on the public, but the potential impact will be minimized for the following reasons: the safety zone is only for a temporary period, vessels may transit in all areas of the Norwalk River other than the area of the safety zone, recreational vessels may pass on the east side of the channel, and commercial vessels may request permission to transit the area from the Captain of the Port, Long Island Sound.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit or anchor in those portions of the Norwalk River covered by the safety zone. For the reasons outlined in the Regulatory Evaluation section above, this rule will not have a significant impact on a substantial number of small entities.

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

Under subsection 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), the Coast Guard wants to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. If this rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call Lieutenant A. Logman, Waterways Management Officer, Group/Marine Safety Office Long Island Sound, at (203) 468-4429.

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

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

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

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and will not concern 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 will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

To help the Coast Guard establish regular and meaningful consultation and collaboration with Indian and Alaskan Native tribes, we published a notice in the Federal Register (66 FR 36361, July 11, 2001) requesting comments on how to best carry out the Order. We invite your comments on how this rule might impact tribal governments, even if that impact may not constitute a “tribal implication” under the Order.

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

The Coast Guard considered the environmental impact of this rule and concluded that, under figure 2-1, paragraph 34(g), of Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation. A Categorical Exclusion Determination is available in the docket where indicated under ADDRESSES.

On August 9, 2002, FEMA published in the Federal Register , 67 FR 51768, a final rule to revise the effective date of the Arrangement to agree with the new Arrangement year beginning October 1, 2002, and ending September 30, 2003.

FEMA had planned to make significant changes in the Arrangement regarding litigation issues effective October 1, 2003. The proposed rule for these changes was not published until October 14, 2003, 68 FR 59146. As an interim measure, an interim final rule was published September 5, 2003, 68 FR 52700, extending the Arrangement term beginning October 1, 2002, to December 31, 2003. No comments were received on that interim final rule. It was anticipated that comments on the October 14, 2003, proposed rule could be reviewed and a final rule published effective January 1, 2004. This did not happen; rather, a second interim final rule was published on December 31, 2003, 68 FR 75453, extending the Arrangement term beginning October 1, 2002, to May 1, 2004. FEMA received one comment on the second interim final rule: an insurance association commented on the expense allowance. It is not feasible to complete the rulemaking for an effective date of May 2, 2004.

Under this extension of the current Arrangement, the expense allowance provided for in Article III.B of Appendix A to Part 62—Federal Emergency Management Agency, Federal Insurance Administration, Financial Assistance/Subsidy Arrangement will remain the same for the additional five months, including the additional expense allowance of up to two percentage points for meeting marketing goals. This additional expense allowance will be based on the period May 2, 2004, through September 30, 2004. Please note that there was an error in the supplementary information of the second interim final rule that was published on December 31, 2003. The additional expense allowance was supposed to be provided from October 1, 2002, through May 1, 2004, consistent with the extended term of the Arrangement. It was inadvertently only provided until April 1, 2004. With this interim final rule, FEMA corrects that error and provides the additional expense allowance through September 30, 2004.

This interim final rule falls within the exclusion category 44 CFR 10.8(d)(2)(ii), which addresses the preparation, revision, and adoption of regulations, directives, and other guidance documents related to actions that qualify for categorical exclusions. Qualifying for this exclusion and because no other extraordinary circumstances have been identified, this interim final rule will not require the preparation of either an environmental assessment or environmental impact statement as defined by the National Environmental Policy Act.

We have prepared and reviewed this rule under the provisions of E.O. 12866, Regulatory Planning and Review. Under Executive Order 12866, 58 FR 51735, October 4, 1993, a significant regulatory action is subject to an OMB review and the requirements of the Executive Order. The Executive Order defines “significant regulatory action” as one that is likely to result in a rule that may:

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

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

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

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

For the reasons that follow, we have concluded that this interim final rule is neither economically significant nor a significant regulatory action under the Executive Order. The interim final rule will not have an annual effect on the economy of $100 million or more nor will it adversely affect in a material way the economy, the insurance sector, competition, or other sectors of the economy. It will create no serious inconsistency or otherwise interfere with an action taken or planned by another agency. It will not materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof. Nor does it raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

OMB has not reviewed this rule under the principles of Executive Order 12866.

This interim final rule does not contain a collection of information and is therefore not subject to the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Executive Order 13132, Federalism, dated August 4, 1999, sets forth principles and criteria to which agencies must adhere in formulating and implementing policies that have federalism implications, that is, regulations that have substantial direct effects on the States, or on the distribution of power and responsibilities among the various levels of government. Federal agencies must closely examine the statutory authority supporting any action that would limit the policymaking discretion of the States, and to the extent practicable, must consult with State and local officials before implementing any such action.

We have reviewed this rule under E.O. 13132 and have concluded that the rule does not have federalism implications as defined by the Executive Order. We have determined that the rule does not significantly affect the rights, roles, and responsibilities of States, and involves no preemption of State law nor does it limit State policymaking discretion.

In general, FEMA publishes a rule for public comment before issuing a final rule, under the Administrative Procedure Act, 5 U.S.C. 533 and 44 CFR 1.12. The Administrative Procedure Act, however, provides an exception from that general rule where the agency for good cause finds the procedures for comment and response contrary to public interest. The public benefit of this rule is the continuation of the WYO Arrangement without interruption. Therefore, we believe it is contrary to the public interest to delay the benefits of this rule. In accordance with the Administrative Procedure Act, 5 U.S.C. 553(d)(3), we find that there is good cause for the interim final rule to be published without prior public comment and without a full 30-day delayed effective date, so as to allow for the continuation of the Arrangement.

The NFIP enables property owners to purchase flood insurance which is generally not otherwise available. In return, communities agree to adopt and administer local floodplain management aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage as authorized under the National Flood Insurance Program, 42 U.S.C. 4001 et seq. ; unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59 et seq. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. However, some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue their eligibility for the sale of insurance. A notice withdrawing the suspension of the communities will be published in the Federal Register .

In addition, the Federal Emergency Management Agency has identified the special flood hazard areas in these communities by publishing a Flood Insurance Rate Map (FIRM). The date of the FIRM if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may legally be provided for construction or acquisition of buildings in the identified special flood hazard area of communities not participating in the NFIP and identified for more than a year, on the Federal Emergency Management Agency's initial flood insurance map of the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment under 5 U.S.C. 553(b) are impracticable and unnecessary because communities listed in this final rule have been adequately notified.

Each community receives a 6-month, 90-day, and 30-day notification addressed to the Chief Executive Officer that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications have been made, this final rule may take effect within less than 30 days.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Considerations. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Administrator has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the communities unless they take remedial action.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Paperwork Reduction Act. This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

Executive Order 12612, Federalism. This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, October 26, 1987, 3 CFR, 1987 Comp.; p. 252.

Executive Order 12778, Civil Justice Reform. This rule meets the applicable standards of section 2(b)(2) of Executive Order 12778, October 25, 1991, 56 FR 55195, 3 CFR, 1991 Comp.; p. 309.

The Commission adopted a Second Order on Reconsideration amending several of the Commission's rules regarding the 18 GHz band plan, blanket licensing rules, and relocation rules adopted in an earlier Report and Order, 65 FR 54144, September 7, 2000. On April 8, 2003, the Federal Register published a summary of the final rule in the above captioned proceeding.

As published, the final rules contain an error in § 101.147. Instruction 23 of the rules amended § 101.147 by revising paragraph (r), but the revised text of paragraph (r) was inadvertently set out as the whole section without any subsections. This error resulted in the removal of paragraphs (r)(1) through (r)(10).

Several of the background documents for the ALWTRP and the take reduction planning process can be downloaded from the ALWTRP web site at http://www.nero.noaa.gov/whaletrp/ .

The ALWTRP was developed pursuant to section 118 of the Marine Mammal Protection Act (MMPA) to reduce the incidental mortality and serious injury of three endangered species of whales (right, fin, and humpback) as well as to provide conservation benefits to a fourth non-endangered species (minke) due to incidental interaction with commercial fishing activities. The ALWTRP, implemented through regulations codified at 50 CFR 229.32, relies on a combination of fishing gear modifications and time/area closures to reduce the risk of whales becoming entangled in commercial fishing gear (and potentially suffering serious injury or mortality as a result).

On January 9, 2002, NMFS published the final rule to implement the ALWTRP's DAM program (67 FR 1133). On August 26, 2003, NMFS amended the regulations by publishing a final rule, which specifically identified gear modifications that may be allowed in a DAM zone (68 FR 51195). The DAM program provides specific authority for NMFS to restrict temporarily on an expedited basis the use of lobster trap/pot and anchored gillnet fishing gear in areas north of 40° N. lat. to protect right whales. Under the DAM program, NMFS may: (1) require the removal of all lobster trap/pot and anchored gillnet fishing gear for a 15-day period; (2) allow lobster trap/pot and anchored gillnet fishing within a DAM zone with gear modifications determined by NMFS to sufficiently reduce the risk of entanglement; and/or (3) issue an alert to fishermen requesting the voluntary removal of all lobster trap/pot and anchored gillnet gear for a 15-day period and asking fishermen not to set any additional gear in the DAM zone during the 15-day period.

A DAM zone is triggered when NMFS receives a reliable report from a qualified individual of three or more right whales sighted within an area (75 nm 2 (139 km 2 )) such that right whale density is equal to or greater than 0.04 right whales per nm 2 (1.85 km 2 ). A qualified individual is an individual ascertained by NMFS to be reasonably able, through training or experience, to identify a right whale. Such individuals include, but are not limited to, NMFS staff, U.S. Coast Guard and Navy personnel trained in whale identification, scientific research survey personnel, whale watch operators and naturalists, and mariners trained in whale species identification through disentanglement training or some other training program deemed adequate by NMFS. A reliable report would be a credible right whale sighting.

On April 21, 2004, NMFS Aerial Survey Team reported a sighting of four right whales in the proximity of 41° 13′ N lat. and 69° 24′ W long. This position lies east of Nantucket, MA. Thus, NMFS has received a reliable report from a qualified individual of the requisite right whale density to trigger the DAM provisions of the ALWTRP.

Once a DAM zone is triggered, NMFS determines whether to impose restrictions on fishing and/or fishing gear in the zone. This determination is based on the following factors, including but not limited to: the location of the DAM zone with respect to other fishery closure areas, weather conditions as they relate to the safety of human life at sea, the type and amount of gear already present in the area, and a review of recent right whale entanglement and mortality data.

NMFS has reviewed the factors and management options noted above relative to the DAM under consideration. As a result of this review, NMFS prohibits lobster trap/pot and anchored gillnet gear in this area during the 15-day restricted period unless it is modified in the manner described in this temporary rule. The DAM zone is bounded by the following coordinates:

41°3′N, 69°52′W (NW Corner)

41°33′N, 69°38′W

41°00′N, 69°05′W

41°07′N, 68°55′W

40°53′N, 68°55′W

40°53′N, 69°52′W

41°33′N, 69°52′W (NW Corner)

In addition to those gear modifications currently implemented under the ALWTRP at 50 CFR 229.32, the following gear modifications are required in the DAM zone. If the requirements and exceptions for gear modification in the DAM zone, as described below, differ from other ALWTRP requirements for any overlapping areas and times, then the more restrictive requirements will apply in the DAM zone. Special note for gillnet fisherman: In April and May, this DAM zone overlaps the year round Northeast multispecies' Closed Area I. In May, this DAM zone overlaps the Northeast multispecies' Georges Bank Seasonal Closure Area. This DAM action does not supersede Northeast multispecies closures found at 50 CFR 648.81.

Fishermen utilizing lobster trap/pot gear within the portion of the Northern Nearshore Lobster Waters that overlap with the DAM zone are required to utilize all of the following gear modifications while the DAM zone is in effect:

1. Groundlines must be made of either sinking or neutrally buoyant line. Floating groundlines are prohibited;

2. All buoy lines must be made of either sinking or neutrally buoyant line, except the bottom portion of the line, which may be a section of floating line not to exceed one-third the overall length of the buoy line;

3. Fishermen are allowed to use two buoy lines per trawl; and

4. A weak link with a maximum breaking strength of 600 lb (272.4 kg) must be placed at all buoys.

Fishermen utilizing lobster trap/pot gear within the portion of the Offshore Lobster Waters Area that overlap with the DAM zone are required to utilize all of the following gear modifications while the DAM zone is in effect:

1. Groundlines must be made of either sinking or neutrally buoyant line. Floating groundlines are prohibited;

2. All buoy lines must be made of either sinking or neutrally buoyant line, except the bottom portion of the line, which may be a section of floating line not to exceed one-third the overall length of the buoy line;

3. Fishermen are allowed to use two buoy lines per trawl; and

4. A weak link with a maximum breaking strength of 1,500 lb (680.4 kg) must be placed at all buoys.

Fishermen utilizing anchored gillnet gear within the portion of the Other Northeast Gillnet Waters that overlap with the DAM zone are required to utilize all the following gear modifications while the DAM zone is in effect:

1. Groundlines must be made of either sinking or neutrally buoyant line. Floating groundlines are prohibited;

2. All buoy lines must be made of either sinking or neutrally buoyant line, except the bottom portion of the line, which may be a section of floating line not to exceed one-third the overall length of the buoy line;

3. Fishermen are allowed to use two buoy lines per string;

4. Each net panel must have a total of five weak links with a maximum breaking strength of 1,100 lb (498.8 kg). Net panels are typically 50 fathoms (91.4 m) in length, but the weak link requirements would apply to all variations in panel size. These weak links must include three floatline weak links. The placement of the weak links on the floatline must be: one at the center of the net panel and one each as close as possible to each of the bridle ends of the net panel. The remaining two weak links must be placed in the center of each of the up and down lines at the panel ends; and

5. All anchored gillnets, regardless of the number of net panels, must be securely anchored with the holding power of at least a 22 lb (10.0 kg) Danforth-style anchor at each end of the net string.

The restrictions will be in effect beginning at 0001 hours May 2, 2004, through 2400 hours May 16, 2004, unless terminated sooner or extended by NMFS through another notification in the Federal Register .

The restrictions will be announced to state officials, fishermen, ALWTRT members, and other interested parties through e-mail, phone contact, NOAA website, and other appropriate media immediately upon filing with the Federal Register .

In accordance with section 118(f)(9) of the MMPA, the Assistant Administrator (AA) for Fisheries has determined that this action is necessary to implement a take reduction plan to protect North Atlantic right whales.

This action falls within the scope of alternatives and impacts analyzed in the Final EAs prepared for the ALWTRP's DAM program. Further analysis under the National Environmental Policy Act is not required.

NMFS provided prior notice and an opportunity for public comment on the regulations establishing the criteria and procedures for implementing a DAM zone. Providing prior notice and opportunity for comment on this action, pursuant to those regulations, would be impracticable because it would prevent NMFS from executing its functions to protect and reduce serious injury and mortality of endangered right whales. The regulations establishing the DAM program are designed to enable the agency to help protect unexpected concentrations of right whales. In order to meet the goals of the DAM program, the agency needs to be able to create a DAM zone and implement restrictions on fishing gear as soon as possible once the criteria are triggered and NMFS determines that a DAM restricted zone is appropriate. If NMFS were to provide prior notice and an opportunity for public comment upon the creation of a DAM restricted zone, the aggregated right whales would be vulnerable to entanglement which could result in serious injury and mortality. Additionally, the right whales would most likely move on to another location before NMFS could implement the restrictions designed to protect them, thereby rendering the action obsolete. Therefore, pursuant to 5 U.S.C. 553(b)(B), the AA finds that good cause exists to waive prior notice and an opportunity to comment on this action to implement a DAM restricted zone to reduce the risk of entanglement of endangered right whales in commercial lobster trap/pot and anchored gillnet gear as such procedures would be impracticable.

For the same reasons, the AA finds that, under 5 U.S.C. 553(d)(3), good cause exists to waive the 30-day delay in effective date. If NMFS were to delay for 30 days the effective date of this action, the aggregated right whales would be vulnerable to entanglement, which could cause serious injury and mortality. Additionally, right whales would likely move to another location between the time NMFS approved the action creating the DAM restricted zone and the time it went into effect, thereby rendering the action obsolete and ineffective. Nevertheless, NMFS recognizes the need for fishermen to have time to either modify or remove (if not in compliance with the required restrictions) their gear from a DAM zone once one is approved. Thus, NMFS makes this action effective 2 days after the date of publication of this notice in the Federal Register . NMFS will also endeavor to provide notice of this action to fishermen through other means as soon as the AA approves it, thereby providing approximately 3 additional days of notice while the Office of the Federal Register processes the document for publication.

NMFS determined that the regulations establishing the DAM program and actions such as this one taken pursuant to those regulations are consistent to the maximum extent practicable with the enforceable policies of the approved coastal management program of the U.S. Atlantic coastal states. This determination was submitted for review by the responsible state agencies under section 307 of the Coastal Zone Management Act. Following state review of the regulations creating the DAM program, no state disagreed with NMFS' conclusion that the DAM program is consistent to the maximum extent practicable with the enforceable policies of the approved coastal management program for that state.

The DAM program under which NMFS is taking this action contains policies with federalism implications warranting preparation of a federalism assessment under Executive Order 13132. Accordingly, in October 2001 and March 2003, the Assistant Secretary for Intergovernmental and Legislative Affairs, DOC, provided notice of the DAM program and its amendments to the appropriate elected officials in states to be affected by actions taken pursuant to the DAM program. Federalism issues raised by state officials were addressed in the final rules implementing the DAM program. A copy of the federalism Summary Impact Statement for the final rules is available upon request ( ADDRESSES ).

The rule implementing the DAM program has been determined to be not significant under Executive Order 12866.

NMFS recently published two final rules, EDR (69 FR 13482, March 23, 2004) and Amendment 13 (69 FR 22906, April 27, 2004), both of which implement revised regulatory text for § 648.7. Amendment 13 was under development by the New England Fishery Management Council, in cooperation with NMFS, for several years. It was originally anticipated that publication of the Amendment 13 final rule would precede publication of the implementing regulations for the EDR final rule. The preamble to the Amendment 13 final rule clearly indicates that NMFS would be issuing electronic dealer reporting requirements in a separate, future rulemaking (i.e., the EDR Rule). The Amendment 13 revision to § 648.7 was intended initially only as a place-holder until such time that the EDR final rule was implemented. However, in order to ensure that the EDR final rule became effective by May 1, 2004, and to accommodate the 30-day delay in effectiveness pursuant to the Administrative Procedure Act, NMFS published the EDR final rule first, on March 23, 2004. NMFS inadvertently failed to remove the place-holder language in the Amendment 13 final rule to reflect the new requirements contained in the EDR final rule at § 648.7. Because of this oversight, and unless corrected, the Amendment 13 implementing regulations will supercede the EDR § 648.7 revised text. Therefore, NMFS corrects the final rule implementing Amendment 13 by removing all reference to § 648.7. This section will be implemented as published in the EDR final rule that published on March 23, 2004 (69 FR 13482).

This final rule is accessible via the Internet at the Office of the Federal Register's Web site at http://www.gpoaccess.gov/fr/index.html . Background information and documents are available at the NMFS Northwest Region Web site at http://www.nwr.noaa.gov/sustfsh/gdfsh01.htm .

The Pacific Coast Groundfish Fishery Management Plan (FMP) requires that fishery specifications be evaluated biennially or annually and revised as necessary, that OYs be specified for groundfish species or species groups that need protection, and that management measures designed to achieve the OYs be published in the Federal Register . Specifications include ABCs and harvest levels (OYs, harvest guidelines, allocations, or quotas). In anticipation of a new whiting stock assessment that would be available in early 2004 and given the small amount of whiting typically landed under trip limits prior to the April 1 start of the primary season, the Council chose to delay its final whiting recommendation until its March 2004 meeting.

A proposed rulemaking to implement the 2004 specifications and management measures for the Pacific Coast groundfish fishery was published on January 8, 2004 (69 FR 1380). NMFS requested public comment on the proposed rule through February 8, 2004. During that comment period, NMFS received four letters of comment that were addressed in the preamble of the final rule published on March 9, 2004 (69 FR 11064). One comment, comment 9, which is not being repeated in the preamble discussion for this action, addressed the process for establishing a harvest level for whiting. For additional background information on the fishery, see the preamble of the proposed and final rules for the 2004 annual specifications and management measures.

In general, whiting is a very productive species with highly variable recruitment (the biomass of fish that mature and enter the fishery each year) patterns and a relatively short life span when compared to other overfished groundfish species. In 1987, the whiting biomass was at a historical high level due to an exceptionally large number of fish that spawned in 1980 and 1984 (fished spawned during a particular year are referred to as year classes). As these large year classes of fish passed through the population and were replaced by moderate sized year classes, the stock declined. The whiting stock stabilized between 1995 and 1997, but then declined to its lowest level in 2001.

In 2002, a whiting stock assessment was prepared. It estimated the female spawning biomass to be less than 20 percent of the unfished biomass. As a result of the 2002 assessment, the whiting stock was believed to be below the overfished threshold in 2001 and was, therefore, declared overfished on April 15, 2002 (67 FR 18117). Since 2001, the whiting stock has increased substantially as a strong 1999 year class has matured and entered the spawning population.

In 2003, whiting was managed under the 40-10 harvest policy, which appeared to be adequate to achieve rebuilding. The 40-10 policy is intended to prevent species or stocks from becoming overfished. If the stock biomass is larger than the biomass needed to produce MSY, the OY may be set equal to or less than ABC. For further discussion see the preamble of the proposed rule for the 2003 specifications and management measures (68 FR 949, January 7, 2003). An age-structured assessment model was used to prepare a new coastwide stock assessment in 2004. This model was similar to the model used in the previous stock assessment in 2002. New data in this stock assessment included updated catch through 2003, recruitment indices from the juvenile survey in 2003, and the results of the 2003 U.S./Canada acoustic survey. The stock assessment was examined by a joint U.S./Canada Pacific Hake (Whiting) Stock Assessment Review (STAR) panel in early February of 2004.

The STAR panel considered the stock assessment to be complete and suitable for use by the Council and its advisory bodies for ABC projections. However, the amount of whiting that the hydroacoustic survey was able to measure relative to the total whiting in the surveyed area (survey catchability coefficient or q) was identified as a major source of uncertainty in the stock assessment. Therefore, two sets of ABC/OY projections, with different assumptions about the survey catchability, were brought forward for decision making. This range of projections was intended to represent a plausible range of the stock's status. The more optimistic or less risk averse model run assumed that q equaled 0.6, while the less optimistic or more risk averse model run assumed that q equaled 1.0. A catchability coefficient of 1.0 is the value that has been used in the previous assessments. The Council's Scientific and Statistical Committee (SSC) also reviewed the assessment.

As a result of the new whiting stock assessment, the estimated abundance of whiting has increased substantially since the last assessment. However, the pattern of stock growth is very similar to what has been estimated in past assessments. The stock was estimated to be 47 percent of its unfished biomass in 2003 (2.7 million mt of age 3+ fish) when a survey catchability coefficient of 1.0 was applied and at 51 percent (4.2 million mt of age 3+ fish) of its unfished biomass in 2003 when a survey catchability coefficient of 0.6 was applied. Under both scenarios, the whiting biomass in 2003 is estimated to be above the target rebuilding biomass. However, in the absence of a large year class after 1999, the stock is projected to decline again.

Whiting was declared overfished on April 15, 2002 (67 FR 18117) as a result of the 2002 stock assessment which estimated that the female spawning biomass was less than 20 percent of the unfished biomass. In retrospect, the abundance of the whiting stock in 2001, as estimated from the current stock assessment, is now believed to have been at 27 percent of its unfished biomass in 2001 when a survey catchability coefficient of 1.0 is applied, and at 31 percent of its unfished biomass in 2001 when a survey catchability coefficient of 0.6 was applied.

With the publication of this document, NMFS is announcing that the whiting stock is estimated to be above the target rebuilding biomass in 2003 and will no longer be considered an overfished stock. Consequently, the adoption of a whiting rebuilding plan under Amendment 16-4 to the FMP, scheduled to be completed by November 2004, may no longer be necessary.

During 2003, while whiting was under NMFS's overfished designation, an order was entered in Natural Resources Defense Council v. Evans, 290 F. Supp. 2d 1051, 1057 (N.D. Calif. 2003), requiring NMFS to approve or adopt a rebuilding plan for whiting by November 30, 2004 pursuant to 16 U.S.C. 1854(c) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). NMFS will move the Court to amend its order on the grounds that a rebuilding plan for whiting is no longer necessary because the stock is no longer in an overfished status.

Since 1977, the U.S. and Canada have periodically held negotiations to address whiting fishery management issues, particularly catch sharing between the two countries. Through 2003, the U.S. fisheries have been managed to take 80 percent of the OY, while the Canadian fisheries have been managed to take 30 percent of the U.S.-Canada coastwide harvest. In the fall of 2002, after the whiting stock had been declared overfished, international negotiations were resumed.

In February 2003, U.S.-Canada negotiations reached a tentative agreement detailing the conservation, research, and catch sharing of whiting. A new process for conducting stock assessments and managing whiting was developed and is described in a treaty which was signed by both countries on November 21, 2003. This treaty is currently awaiting ratification by the U.S. Senate and passage of implementing legislation by the U.S. Congress. Treaty provisions include the use of a default harvest rate of F 40 % with a 40/10 adjustment. A rate of F 40 % can be explained as that which reduces spawning potential per female to 40 percent of what it would have been under natural conditions (if there were no mortality due to fishing). The treaty's catch sharing plan provides 73.88 percent of the total catch OY to the U.S. fisheries and 26.12 percent to the Canadian fisheries. Although the international agreement and implementing legislation are not expected to be effective until 2005, the negotiators recommended that each country informally implement the agreed upon treaty provisions, to the extent possible, beginning in 2004.

At its September 2003 meeting, the Council considered a range of ABCs and OYs that were consistent with historical values and expected to encompass results of the upcoming 2004 assessment. The four ABC and OY options considered by the Council were: An ABC of 94,000 mt with an OY of 74,100 mt, which represents 50 percent of the 2003 ABC and OY; an ABC of 188,000 mt with an OY of 148,200 mt, which was the 2003 ABC and OY; an ABC of 282,000 mt with an OY of 222,300 mt, which is 50 percent greater than the 2003 ABC and OY; and an ABC of 325,000 mt with an OY of 250,000 mt, which was an intermediate value recommended by the Council.

The Council recommended a preferred OY of 250,000 mt to accommodate any biomass increase that could result from the 2004 stock assessment, while recognizing that incidental catch of widow rockfish could constrain harvest levels of whiting. Widow rockfish, an overfished species, is often caught with whiting. Because the 2004 widow rockfish OY is very low to allow for rebuilding, estimates of incidental widow rockfish catch in the whiting fishery suggested that widow OY might be exceeded if the whiting OY were not constrained. It was announced throughout the specification process that the ABC and OY for whiting would be implemented in a separate final rule from the rest of the groundfish specifications.

At its March 2004 meeting in Tacoma, Washington, the Council reviewed the results of the new stock assessment for whiting. The coastwide ABCs considered by the Council were 514,441 mt (q=1.0) and 780,758 (q=0.6). Both ABCs were based on an F MSY harvest rate of F 40 % which is consistent with the U.S./Canada treaty for whiting. F MSY is the default harvest rate that the Council uses as a proxy for the fishing mortality rate.

Because the whiting biomass is estimated to be above 40 percent of its unfished biomass, the 40/10 adjustment was not applied. With the stock above the target rebuilding biomass, the OY could be set as high as the ABC. The SSC recommended that the Council use the decision table presented in the whiting stock assessment (Table 13) to evaluate the consequences of alternate OY options on the whiting biomass. This assessment is available from the Council ( see ADDRESSES ). In addition to the two OYs based on different values for the q, 0.6 and 1.0, the consequences of a constant harvest rate of 250,000 mt annually for the U.S. was also considered in the decision table.

The Council's groundfish management team (GMT) considered the 2004 OY alternatives in relation to the impacts of incidental catch of overfished species, particularly widow rockfish. In September 2003, when projecting the impacts of the whiting fishery on widow rockfish, the GMT applied an average bycatch rate for 1998-2002 for each sector. Based on this rate, it was projected that the whiting OY would need to be constrained to 120,000 mt as not to exceed the widow rockfish rebuilding OY.

At the March meeting, the 2003 whiting bycatch data were available. However, the GMT could not reach consensus on the best approach to calculating the widow bycatch projections. The influence of fishers' ability to reduce bycatch rates by changing fishing practices, as compared to the influence on bycatch rates due to the relationship between the two stocks and the frequency of widow rockfish interactions, are not well understood at this time. Therefore, the GMT presented two OYs based on alternative bycatch projections that fixed the widow rockfish take at 220 mt, to the Council. The first whiting OY was 260,343 mt, which was based on a weighted 4-year average with more weight being given to recent years. The second whiting OY was 205,782 mt, and was based on an equally weighted four year average. In addition, the GMT estimated the widow rockfish catch (211 mt) with a fixed OY of 250,000 mt, and with the application of a weighted 4-year average.

Following discussion and public testimony concerning the new 2004 stock assessment, the Council recommended adopting an ABC of 514,441 mt, based on the new assessment with model runs using q=1.0, and an OY of 250,000 mt. As explained above, the Council initially considered a range of ABCs that were expected to encompass the results of the new stock assessment. However, the 514,441 mt ABC based on the new assessment is greater than the range of ABC alternatives (based on the 2002 stock assessment) that were initially considered by the Council, analyzed in the EIS, and presented in the proposed rule.

Because it is the OY harvest level that determines the effects of the fisheries on the environment and not the ABC, there is no functional difference in environmental impacts between the high ABC of 325,000 mt and the ABC of 514,441 mt. The environmental impacts of the 250,000 mt OY, including impacts on overfished species, resulting from the whiting harvest specification were fully considered within the range of alternatives in the EIS and there are no additional environmental impacts on whiting or bycatch species over those already considered.

As in past years, the whiting fisheries are will be managed with near real-time data to achieve, but not exceed the OY. The Council recognized efforts by fishery participants to avoid bycatch of overfished species and asked that the industry continue to share information and avoid widow rockfish “hot spots”.

The U.S. OY recommended by the Council represents a 68 percent increase from the 2003 whiting OY. When the OY was substantially reduced to allow for rebuilding of the stock, it was not economically feasible for some shoreside or at-sea processors who had historically participated in the fishery to remain in the fishery. The increased OY for 2004 may result in financial improvements and may likely encourage some fishers and processors to return to the fishery. In the short term, the increased OY is expected to have a substantial economic impact on harvesters and processors. It is also expected that the length of the whiting season will increase proportionately with the OY, thereby likely reducing some fishing pressure on already constrained non-whiting fisheries such as flatfish and DTS, in which whiting vessels also participate.

In 1994, the United States formally recognized that the four Washington coastal treaty Indian tribes (Makah, Quileute, Hoh, and Quinault) have treaty rights to fish for groundfish in the Pacific Ocean. In general terms, the quantification of those rights is 50 percent of the harvestable surplus of groundfish that pass through the tribes' usual and accustomed ocean fishing areas (described at 60 CFR 660.324).

The Pacific Coast Indian treaty fishing rights, described at 50 CFR 660.324, allow for the allocation of fish to the tribes through the annual specification and management process. A tribal allocation is subtracted from the species OY before limited entry and open access allocations are derived. The tribal whiting fishery is a separate fishery, and is not governed by the limited entry or open access regulations or allocations. To date only the Makah tribe has participated. It regulates, and in cooperation with NMFS, monitors this fishery so as not to exceed the tribal allocation.

The sliding scale methodology used to determine the treaty Indian share of whiting is the subject of ongoing litigation. In United States v. Washington , Subproceeding 96-2, the Court held that the methodology is consistent with the Magnuson-Stevens Act, and is the best available scientific method to determine the appropriate allocation of whiting to the tribes. See United States v. Washington , 143 F.Supp.2d 1218 (W.D. Wash. 2001). This ruling was reaffirmed in July 2002, Midwater Trawlers Cooperative v. Daley , C96-1808R (W.D. Wash.) (Order Granting Defendants' Motion to Supplement Record, July 17, 2002), and again in April 2003, id. , Order Granting Federal Defendants' and Makah's Motions for Summary Judgment and Denying Plaintiffs' Motions for Summary Judgment, April 15, 2003. The latter ruling has been appealed to the Ninth Circuit, but no decision has been rendered as yet. At this time, NMFS remains under a Court order in Subproceeding 96-2 to continue use of the sliding scale methodology unless the Secretary finds just cause for its alteration or abandonment, the parties agree to a permissible alternative, or further order issues from the Court. Therefore, NMFS is obliged to continue to use the methodology unless one of the events identified by the Court occurs. Since NMFS finds no reason to change the methodology, it has been used to determine the 2004 tribal allocation.

Beginning in 1999, NMFS set the tribal allocation according to an abundance-based sliding scale allocation method, proposed by the Makah Tribe in 1998. See , 64 FR 27928, 27929 (May 29, 1999); 65 FR 221, 247 (January 4, 2000); 66 FR 2338, 2370 (January 11, 2001). Under the sliding scale allocation method, the tribal allocation varies with U.S. whiting OY, ranging from a low of 14 percent (or less) of the U.S. OY when OY levels are above 250,000 mt, to a high of 17.5 percent of the U.S. OY when the OY level is at or below 145,000 mt. For 2004, using the sliding scale allocation method the tribal allocation will be 32,500 mt. The Makah are the only Washington Coast tribe that requested a whiting allocation for 2004.

The 2004 non-tribal commercial OY for whiting is 215,500 mt. This is calculated by deducting the 32,500 mt tribal allocation and 2,000 mt for research catch and bycatch in non-groundfish fisheries from the 250,000 mt total catch OY. Regulations at 50 CFR 660.323(a)(4) divide the commercial OY into separate allocations for the non-tribal catcher/processor, mothership, and shore-based sectors of the whiting fishery. The catcher/processor sector is comprised of vessels that harvest and process whiting. The mothership sector is comprised of motherships and catcher vessels that harvest whiting for delivery to motherships. Motherships are vessels that process, but do not harvest, whiting. The shoreside sector is comprised of vessels that harvest whiting for delivery to shoreside processors. Each sector receives a portion of the commercial OY, with the catcher/processors getting 34 percent (73,270 mt), motherships getting 24 percent (51,720 mt), and the shore-based sector getting 42 percent (90,510 mt).

All whiting caught in 2004 before the effective date of this action will be counted toward the new OY. As in the past, the specifications include fish caught in state ocean waters (0-3 nautical miles (nm) offshore) as well as fish caught in the EEZ (3-200 nm offshore).

The groundfish fisheries in the Exclusive Economic Zone of the GOA are managed under the FMP. The FMP was developed by the North Pacific Fishery Management Council (Council) under the Magnuson-Stevens Act (Pub. L. 94-265, 16 U.S.C. 1801). The FMP was approved by the Secretary of Commerce and became effective in 1978. Fishing for halibut ( Hippoglossus stenolepis ) is managed by the International Pacific Halibut Commission (IPHC) and the Council under the Halibut Act. The IFQ Program, a limited access management system for the fixed gear halibut and sablefish ( Anoplopoma fimbria ) fisheries off Alaska, was recommended by the Council in 1992 and approved by NMFS in January 1993. Initial implementing rules were published on November 9, 1993 (58 FR 59375). Fishing under the IFQ Program began on March 15, 1995. The IFQ Program limits access to the halibut and sablefish fisheries to those persons holding QS in specific management areas. The IFQ Program for the sablefish fishery is implemented by the FMP and Federal regulations at 50 CFR part 679 under authority of the Magnuson-Stevens Act. The IFQ Program for the halibut fishery is implemented by Federal regulations at 50 CFR part 679 under the authority of the Halibut Act.

The IFQ Program originally was designed to resolve conservation and management problems that are endemic to open access fisheries. The background issues leading to the Council's initial action recommending the adoption of IFQs are described in the preamble to the proposed rule establishing the IFQ Program published December 3, 1992 (57 FR 57130).

A central concern of the Council in developing the IFQ Program was that QS, from which IFQ is derived, would become increasingly held by corporate entities instead of independent fishermen who typically own and operate their own vessels. To prevent this outcome, the Council designed the IFQ Program such that QS could, in most cases, be held only by individuals or natural persons, and not by corporate entities. The Council provided limited exemptions to this basic approach to accommodate existing corporate ownership of vessels at the time of implementation and to recognize the participation by corporately owned freezer vessels. However, the overall intent of the IFQ Program was for catcher vessel QS eventually to be held only by individual fishermen. The IFQ Program is designed to limit corporate holding of QS and increase holdings of QS by individual fishermen as corporate owners divest themselves of QS. This provision is implemented through the QS and IFQ transfer regulations at 50 CFR 679.41.

This final rule revises the existing IFQ Program regulations and policy to explicitly allow a new group of non-profit entities to hold QS on behalf of residents of specific rural communities located adjacent to the coast of the GOA. This change would allow a non-profit corporate entity that meets specific criteria to receive transferred halibut or sablefish QS on behalf of an eligible community and to lease the resulting IFQ to fishermen who are residents of the eligible community. This change is intended to provide additional opportunities to these fishermen, and may indirectly address concerns about the economic viability of those communities. The objectives for this action are described in detail in the proposed rule, which was published on October 16, 2003 (68 FR 59564), and are summarized here.

Since initial issuance of QS, and as a result of voluntary transfers of QS, the amount of QS and the number of resident QS holders has declined substantially in most of the GOA communities affected by this action. This trend may have had an effect on employment and may have reduced the diversity of fisheries to which fishermen in rural communities have access. The ability of fishermen in small rural communities to purchase QS or maintain existing QS may be limited by a variety of factors unique to those communities. Although the specific causes for decreasing QS holdings in rural communities may vary, the net effect is overall lower participation by residents of these communities in the halibut and sablefish IFQ fisheries.

In June 2000, representatives of several GOA communities presented the Council with a proposal to allow communities to purchase QS. The Council approved several alternatives for analysis in June 2001, reviewed an initial analysis in December 2001, and took final action in April 2002. The problem statement adopted by the Council in June 2001 recognized the fact that a number of small coastal communities “are struggling to remain economically viable.” The Council stated that “[a]llowing qualifying communities to purchase halibut and sablefish quota share for use by community residents will help minimize adverse economic impacts on these small, remote, coastal communities in Southeast and Southcentral Alaska, and help provide for the sustained participation of these communities in the halibut and sablefish IFQ fisheries.”

A Notice of Availability of the FMP amendment was published on September 2, 2003 (68 FR 52173) inviting comments on the FMP amendment through November 3, 2003. One written comment was received that specifically addressed the FMP amendment. This comment is addressed in the Response to Comment section of this rule. A proposed rule to implement the Council's recommendation was published on October 16, 2003 (68 FR 59564) inviting comments on the proposed rule through December 1, 2003. Twenty-two written comments were received addressing the proposed rule (see Response to Comments). The Secretary of Commerce approved the FMP amendment on December 3, 2003.

This action addresses these concerns by modifying the IFQ Program to allow non-profit entities that represent small rural communities in the GOA with a historic participation in the halibut and sablefish fisheries to hold QS. The Council's recommendations also reflect the most recent amendments to the Magnuson-Stevens Act, and IFQ policy recommendations by the National Research Council.

The Council considered the range of comments from the public, NMFS, and the State of Alaska (State), and incorporated various suggestions in developing the policy implemented by this rule. The basic provisions of this rule are described in the preamble to the proposed rule published October 16, 2003 (68 FR 59564). Key provisions are summarized here.

Community quota entities (CQEs) are non-profit entities incorporated under the laws of the State, or tribal regulations in the case of one of the communities, to represent eligible communities. The CQEs obtain QS by transfer and hold the QS and lease the resulting annual IFQ to individual community residents. Unless otherwise specified, the restrictions that apply to any current QS holder apply to a CQE. CQEs, however, are subject to additional regulatory requirements beyond those applying to existing QS holders.

A CQE could represent more than one eligible community. However, no community can be represented by more than one CQE. This provision minimizes confusion and ensures effective and efficient administration of the program.

To be considered eligible to hold QS on behalf of a community, a CQE must have been incorporated after April 10, 2002, the date of final Council action. The Council stated that the purpose of designating a new non-profit entity to hold QS is that existing administrative structures such as municipal governments, tribal councils, or other community organizations may be focused on other priorities.

The Council also recommended that a non-profit organization provide proof of support from the community that it is seeking to represent. This support must be demonstrated in the application by a non-profit organization to become eligible as a CQE. The specific mechanism for the community to demonstrate its support for a CQE is described in the Administrative Oversight section of this preamble.

Once an application to become a CQE has been approved, then that CQE is eligible to hold and receive QS, and lease IFQ to eligible community residents under the mechanisms established by this rule. If a CQE does not remain in compliance with the regulations applying to CQEs or IFQ holders generally, then NMFS can initiate administrative proceedings to deny the transfer of QS or IFQ to or from the CQE. As with other administrative determinations under the IFQ Program, any such determination could be appealed under the procedures set forth in regulations (50 CFR 679.43). The Council recommended regulatory measures, described below, as a means to monitor the ability of the non-profit entities to meet the goals of distributing IFQ among residents in these GOA communities.

Gulf of Alaska communities eligible to participate in this program must meet all the following criteria: (a) have a population of less than 1,500 persons based on the 2000 United States Census; (b) have direct saltwater access; (c) lack direct road access to communities with a population greater than 1,500 persons; (d) have historic participation in the halibut and sablefish fisheries; and (e) be specifically designated on a list adopted by the Council and included in this rule (see Table 21 to part 679).

If a community appears to meet the eligibility criteria but is not specifically designated on the list of communities adopted by the Council, then that community must apply directly to the Council to be included. In this event, the Council may modify the list of eligible communities adopted by the Council through a regulatory amendment. Under this action, a total of 42 communities in the GOA qualify as eligible to purchase QS. These eligible communities may designate a new non-profit entity to hold QS on behalf of that community.

(a) Population of Less Than 1,500 Persons

The 2000 United States Census was chosen as the standard for measuring total population because it is considered to be a more accurate measure of population than annual estimates conducted by the State. Additionally, at the time that the Council took final action to modify the IFQ Program to accommodate communities, the 2000 Census was the best available demographic data.

NMFS manages the U.S. groundfish fisheries of the GOA in the EEZ off Alaska under the Fishery Management Plan for Groundfish of the Gulf of Alaska and the Fishery Management Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area (FMPs). The FMPs were prepared by the North Pacific Fishery Management Council and approved by the Secretary of Commerce under authority of the Magnuson-Stevens Act. The FMPs are implemented by regulations at 50 CFR part 679. NMFS manages the IFQ Program for Pacific halibut under the Halibut Act; implementing regulations are at 50 CFR 300.60 through 300.66. General provisions governing fishing by U.S. vessels in accordance with the FMPs appear at subpart H of 50 CFR part 600.

This action revises the list of port codes in Tables 14a and 14b to 50 CFR part 679. The numerical codes identify ports where IFQ landings are made and are entered by participants when filing an IFQ prior notice of landing (PNOL). The background regarding this action is detailed in the preamble to the proposed rule (69 FR 4285 January 29, 2004). Public comments on the proposed rule were invited through March 1, 2004. No public comments were received on the proposed rule.

In brief, Tables 14a and 14b are revised as follows:

1. Numerical codes that are no longer used for IFQ landings and that do not have a corresponding alphabetical code have been removed, and

2. Numerical codes for ports that are geographically close enough to be reported as one port have been combined.

The numerical codes identify ports where IFQ landings are made. These port codes are entered by participants when filing an IFQ prior notice of landing (PNOL) and when electronically reporting an IFQ landing (see 50 CFR 679.5(l)). The alphabetical codes identify ports where groundfish landings are made. Alphabetical codes are entered by participants completing a State of Alaska, Department of Fish and Game fish ticket and also are entered by shoreside processor participants entering data into the NMFS groundfish shoreside processor electronic logbook report (SPELR) (see 50 CFR 679.5(c)).

In Table 14a to part 679 port code 102 (Akutan Bay) is combined into port code 101 (Akutan), because these two locations are geographically close.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

This final rule does not duplicate, overlap, or conflict with other Federal regulations.

This action does not impose new reporting, recordkeeping or other compliance requirements on regulated small entities.

The Chief Counsel for Regulation of the Department of Commerce certified that this final rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act. No comments were received regarding the economic impact of this final rule. Therefore, no FRFA is required, and none has been prepared.

This final rule contains two collection-of-information requirements subject to the Paperwork Reduction Act (PRA) and which have been approved by the OMB. Under control number 0648-0272, public reporting burden for the Prior Notice of Landing is estimated to average 12 minutes per response; for the IFQ landing report, 18 minutes per response is estimated. Under control number 0648-0401, public reporting burden for the Shoreside Processor Electronic Logbook Report is estimated at 30 minutes per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (see ADDRESSES ) and by e-mail to David_Rostker@omb.eop.gov , or fax to (202) 395-7285.

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