This rule is issued under Marketing Order No. 981, as amended (7 CFR part 981), regulating the handling of almonds grown in California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

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

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, California almond handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as issued herein will be applicable to all assessable almonds beginning August 1, 2004, and continue until amended, suspended, or terminated. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

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

This rule increases the assessment rate established for the Board for the 2004-05 and subsequent crop years from $0.020 to $0.025 per pound of almonds received. Of the $0.025 per pound assessment, $0.014 is available as credit-back for handlers who conduct their own promotional activities.

The California almond marketing order provides authority for the Board, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Board are producers and handlers of California almonds. They are familiar with the Board's needs and with the costs for goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.

For the 2003-04 and subsequent crop years, the Board recommended, and USDA approved, an assessment rate that would continue in effect from crop year to crop year unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Board or other information available to USDA.

The Board met on May 20, 2004, and recommended 2004-05 expenditures of $24,027,344. In comparison, last year's budgeted expenditures were $20,547,385. The assessment rate of $0.025 is $0.005 higher than the rate currently in effect, and the credit-back portion of the assessment rate is $0.004 more than the rate currently in effect.

The major expenditures recommended by the Board for the 2004-05 crop year include $7,115,000 for advertising and market research, $9,215,000 for public relations and other promotion and education programs including a Market Access Program (MAP) administered by USDA's Foreign Agricultural Service (FAS), $1,730,000 for salaries, $1,200,000 for nutrition research, $947,321 for production research, $808,000 for food quality programs, $460,042 for environmental research, $200,000 for travel, $130,000 for office rent, $125,000 for a crop estimate, and $95,000 for an acreage survey. Budgeted expenses for these items in 2003-2004 were $6,375,312 for advertising and market research, $7,587,750 for public relations and other promotion and education programs including a Market Access Program (MAP) administered by USDA's Foreign Agricultural Service (FAS), $1,500,000 for salaries and wages, $1,000,000 for nutrition research, $850,332 for production research, $823,948 for food quality programs, $254,903 for environmental research, $200,000 for travel, $122,472 for office rent, $120,750 for a crop estimate, and $90,780 for an acreage survey.

The Board recommended increasing the assessment rate from $0.020 per pound to $0.025 per pound of almonds handled. Of the $0.025 per pound assessment, $0.014 per pound is available as credit-back for handlers who conduct their own promotional activities consistent with § 981.441 of the order's regulations and subject to Board approval. The Board recommended increasing the assessment rate to generate adequate revenue to fund the Board's 2004-05 budgeted expenses and to maintain a financial reserve. Section 981.81(c) authorizes a financial reserve of approximately one-half year's budgeted expenses. One-half of the 2004-05 crop year's budgeted expenses of $24,027,344 equals $12,013,672. The Board's financial reserve at the end of the 2004-05 crop year is projected to be $3,067,437, which is well within the authorized reserve.

The assessment rate recommended by the Board was derived by considering anticipated expenses and production levels of California almonds, and additional pertinent factors. In its recommendation, the Board utilized an estimate of 1,056,000,000 pounds of assessable almonds for the 2004-05 crop year. If realized, this will provide estimated assessment revenue of $11,616,000 from all handlers, and an additional $8,131,200 from those handlers who do not participate in the credit-back program, for a total of $19,747,200. In addition, it is anticipated that $7,347,581 will be provided by other sources, including interest income, MAP funds, grant funds, miscellaneous income, and reserve/carryover funds. When combined, revenue from these sources will be adequate to cover budgeted expenses. Any unexpended funds from the 2004-05 crop year may be carried over to cover expenses during the succeeding crop year. Funds in the reserve at the end of the 2004-05 crop year are estimated to be approximately $3,067,437, which will be within the amount permitted by the order.

The assessment rate established in this rule will continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Board or other available information.

Although this assessment rate will be in effect for an indefinite period, the Board will continue to meet prior to or during each crop year to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Board meetings are available from the Board or USDA. Board meetings are open to the public and interested persons may express their views at these meetings. USDA will evaluate Board recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The Board's 2004-05 budget and those for subsequent crop years will be reviewed and, as appropriate, approved by USDA.

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

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

There are approximately 6,000 producers of almonds in the production area and approximately 119 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $5,000,000.

Data for the most recently completed crop year indicate that about 38 percent of the handlers shipped over $5,000,000 worth of almonds and about 62 percent of handlers shipped under $5,000,000 worth of almonds. In addition, based on production and grower price data reported by the California Agricultural Statistics Service (CASS), and the total number of almond growers, the average annual grower revenue is estimated to be approximately $199,000. Based on the foregoing, the majority of handlers and producers of almonds may be classified as small entities.

This rule increases the assessment rate established for the Board and collected from handlers for the 2004-05 and subsequent crop years from $0.020 to $0.025 per pound of almonds. Of the $0.025 per pound assessment, $0.014 per pound is available as credit-back for handlers who conduct their own promotional activities consistent with § 981.441 of the order's regulations and subject to Board approval.

The Board met on May 20, 2004, and recommended 2004-05 expenditures of $24,027,344 and an assessment rate of $0.025 per pound. Of the $0.025 per pound assessment, $0.014 per pound would be available as credit-back for handlers who conduct their own promotional activities. The assessment rate of $0.025 is $0.005 higher than the current rate, and the credit-back portion is $0.004 more than the current rate. The quantity of assessable almonds for the 2004-05 crop year is estimated at 1,056,000,000 pounds. The assessment rate will provide estimated assessment revenue of $11,616,000 from all handlers, and an additional $8,131,200 from those handlers who do not participate in the credit-back program, for a total of $19,747,200. In addition, it is anticipated that $7,347,581 will be provided from other sources, including interest income, MAP funds, grant funds, miscellaneous income, and reserve/carryover funds. When combined, revenue from these sources will be adequate to cover budgeted expenses. The projected financial reserve at the end of 2004-05 will be $3,067,437, which is within the maximum permitted under the order.

The major expenditures recommended by the Board for the 2004-05 crop year include $7,115,000 for advertising and market research, $9,215,000 for public relations and other promotion and education programs including a Market Access Program (MAP) administered by USDA's Foreign Agricultural Service (FAS), $1,730,000 for salaries, $1,200,000 for nutrition research, $947,321 for production research, $808,000 for food quality programs, $460,042 for environmental research, $200,000 for travel, $130,000 for office rent, $125,000 for a crop estimate, and $95,000 for an acreage survey. Budgeted expenses for these items in 2003-2004 were $6,375,312 for advertising and market research, $7,587,750 for public relations and other promotion and education programs including a Market Access Program (MAP) administered by USDA's Foreign Agricultural Service (FAS), $1,500,000 for salaries and wages, $1,000,000 for nutrition research, $850,332 for production research, $823,948 for food quality programs, $254,903 for environmental research, $200,000 for travel, $122,472 for office rent, $120,750 for a crop estimate, and $90,780 for an acreage survey.

The Board considered alternative assessment rate levels, including the portion available for handler credit-back. After deliberating the issue, the Board recommended increasing the assessment rate to $0.025 per pound, with $0.014 available for handler credit-back. In arriving at its budget, the Board considered information from its various committees. Alternative expenditure levels were discussed by these groups, based on the value of various activities to the industry. The committees ultimately recommended appropriate activities and funding levels, which were adopted by the Board.

A review of historical information and preliminary information pertaining to the upcoming crop year indicates that the average grower price for the 2004-05 season could range between $1.50 and $1.80 per pound of almonds. Therefore, the estimated assessment revenue for the 2004-05 crop year (disregarding any amounts credited pursuant to §§ 981.41 and 981.441) as a percentage of total grower revenue could range between 1.2 and 1 percent, respectively.

This action increases the assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. Some of the additional costs may be passed on to producers. However, these costs are offset by the benefits derived by the operation of the marketing order. In addition, the Board's meeting was widely publicized throughout the California almond industry and all interested persons were invited to attend the meeting and participate in Board deliberations on all issues. Like all Board meetings, the May 20, 2004, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.

This rule imposes no additional reporting or recordkeeping requirements on either small or large California almond handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

A proposed rule concerning this action was published in the Federal Register on June 16, 2004 (69 FR 33584). Copies of the proposed rule were also mailed or sent via facsimile to all almond handlers. Finally, the proposal was made available through the Internet by USDA and the Office of the Federal Register. A 10-day comment period ending June 28, 2004, was provided for interested persons to respond to the proposal. No comments were received.

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

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

Pursuant to 5 U.S.C. 553, it also found and determined that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because the Board needs to have sufficient funds to pay its expenses which are incurred on a continuous basis and the crop year begins on August 1, 2004. Further, handlers are aware of this rule which was recommended by the Board at a public meeting. Also, a 10-day comment period was provided for in the proposed rule and no comments were received.

Background

Brucellosis is a contagious disease caused by bacteria of the genus Brucella. It affects both animals and humans. In its principal animal hosts, it causes loss of young through spontaneous abortion or birth of weak offspring, reduced milk production, and infertility. There is no economically feasible treatment for brucellosis in livestock.

Brucellosis is mainly a disease of cattle, bison, and swine. Brucella abortus affects mainly bovines; B. suis affects mainly swine. Goats, sheep, and horses are also susceptible to B. abortus. In horses, the disease is known as fistulous withers. A third strain of Brucella , B. melitensis , affects mainly goats and sheep.

The continued presence of brucellosis in a herd or flock seriously threatens the health of other animals. To prevent any possible spread of infection, we ask livestock owners to promptly destroy all infected and exposed animals. To encourage them, we pay Federal indemnity for certain cattle, bison, and swine destroyed because of brucellosis. Regulations governing indemnity for cattle, bison, and swine are contained in 9 CFR part 51.

On September 13, 2001, we published in the Federal Register (66 FR 47593-47599, Docket No. 00-002-1) a proposal to amend the regulations in 9 CFR part 51 by creating an indemnity program for sheep, goats, and horses that must be destroyed because of brucellosis. These proposed regulations were modeled on our existing indemnity regulations for cattle and bison, making adjustments as necessary to better address brucellosis in sheep, goats, and horses. Like the cattle and bison program, the proposed indemnity program for sheep, goats, and horses was voluntary and was designed to give producers an incentive to cooperate and assist our ongoing program to eradicate brucellosis in the United States. We also proposed to reorganize and rewrite the requirements to make them easier to understand.

We solicited comments concerning our proposal for 60 days ending November 13, 2001. We received 2 comments by that date, from a national agricultural organization and a State agricultural organization. Both comments were generally supportive of the proposed rule. However, the commenters recommended that, instead of requiring that the appraisal be made by an independent appraiser selected by the Animal and Plant Health Inspection Service (APHIS), we consider allowing producers to provide evidence from a separate appraisal and having an unbiased third party make the final decision.

The position of the Department has consistently been that APHIS cannot delegate the final decision of an appraisal to a third party. Producers are free to offer evidence of value that may differ from the independent appraisal, but APHIS will make the final decision. If a producer believes that the valuation determined by the independent appraiser selected by APHIS is inaccurate, the producer can maintain the herd under quarantine rather than participate in the program to receive indemnity for destruction of infected animals. We are making no changes in response to these comments.

However, we are making minor changes to the proposed regulations in this final rule. Section 51.26 of the proposed rule stated that the test records for animals must include individual identification, with “any unique identification” being acceptable. We are changing this phrase to read “any unique, individually numbered identification.” This will ensure that the form of identification used will allow the test record to refer to one specific animal and will make the regulations in § 51.26 consistent with the regulations in § 51.27, which use the phrase “unique, individually numbered identification” to refer to the same required identification.

In addition, the proposed definition of brucellosis reactor animal did not clearly state what criteria a sheep, goat, or horse had to meet to be classified as a brucellosis reactor animal under proposed 9 CFR part 51, Subpart B; instead, the definition referred readers to proposed § 51.23, “Eligibility for indemnity,” for the criteria. In this final rule, we have moved the criteria a sheep, goat, or horse must meet to be classified as a brucellosis reactor animal into the definition of brucellosis reactor animal , while retaining the information about eligibility for indemnity in § 51.23.

Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, with the changes discussed above.

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

Brucellosis is a contagious, costly disease of livestock. It affects mainly ruminants and swine. However, it may also infect other animals, including horses. In addition, it is contagious to humans. Because of the serious consequences of infection in its animal hosts, which include loss of young through abortion or birth of weak offspring, reduced milk production, infertility, weight loss, and lameness, and its rapid spread among animals and potential for human infection, brucellosis is considered one of the most serious livestock diseases. At present, there is no effective treatment for animals. Affected herds/flocks and infected animals can be quarantined. However, quarantining does not eliminate possible spread; only destroying infected and exposed animals ensures that the disease is not transmitted to other animals.

We are amending the brucellosis indemnity regulations to allow us to pay indemnity for sheep, goats, and horses destroyed because of brucellosis, which will make it easier to eliminate affected herds/flocks and infected animals as sources of infection and will encourage herd and flock owners to cooperate with our brucellosis eradication program. This action is intended to help reduce the incidence of brucellosis and the likelihood of it spreading within the United States.

Sheep are raised primarily for meat and wool, while goats are largely raised for meat, milk, and mohair. On January 1, 2002, there were 65,120 sheep operations in the United States that owned a total of 6.69 million head of sheep, with 4.91 million as breeding sheep and 1.77 million as market sheep. 1 According to industry statistics, the average value per head of sheep is $92.00, with a reported cash value totaling over $618 million. 2

Unfortunately, limited data is collected on the goat industry as a whole. The 1997 Census of Agriculture, the last official report with data on the industry, estimated there were 57,925 goat operations with an inventory of approximately 1.99 million head of goat. Of that 1.99 million head, it is estimated 41 percent were angora goats raised for mohair, 7 percent were goats raised for milk, and 52 percent were goats raised for meat and other uses. In 1997, sales receipts for those primary markets in the goat industry totaled over $65 million. 3

The United States has limited foreign trade in live sheep, live goats, and their products. Figures for 2002 are shown in table 1.

The United States also imports and exports sheep and goat meat. During 2002, U.S. imports of sheep and goat meat were valued at $277.5 million and exports were valued at $6.38 million. 4

According to the 1997 Census of Agriculture , there were 375,218 farms in the United States with a total of 2,427,277 horses. During 1997, 79,516 of these farms sold 325,306 horses for about $1.03 billion, with an average value per horse of $3,165. 5 Using this average value, the total market value of horses in the United States was $10.847 billion in 1997. Over 98 percent of farms with horses had gross annual sales of less than $750,000 and thus are considered to be small entities according to the Small Business Administration size standards. 6

The contribution of horses to the economy of the Nation is substantial. A study for the American Horse Council showed that the horse industry directly contributed about $25.3 billion to the gross domestic product. The horse industry's indirect and induced impact on the national economy is about $112 billion.

Horses also play an important role in the international trade of the United States. Figures for 2002 are shown in table 2.

Under this rule, the amount of indemnity will be the fair market value of each animal, minus salvage, if any, received for the animal. There will usually be no salvage value for sheep and goats destroyed because of B. melitensis , as the carcass would have to be buried, incinerated, or rendered after the animal was destroyed. Animals will have to be individually appraised before destruction to determine their fair market value. An independent appraiser selected by the Administrator and paid for by the United States Department of Agriculture will conduct all appraisals.

It is impossible to estimate indemnity expenditures, as market values vary depending upon the specific animal. However, as of January 1, 2002, the average national sales price per head of sheep was $94, while as of January 1, 2001, it was $100. These prices reflect the average of the sale of millions of slaughter sheep, and the sale of a few thousand registered breeding sheep. 7

Average sales prices for goats, per head, vary greatly, depending on whether the animal is a slaughter goat, Angora goat, dairy goat, crossbred or purebred, etc.

There is much variation in the price of horses. In 1997, the average U.S. sales price for a horse was $3,165. Purebred horses are more expensive than nonpurebred. State average sales prices ranged between $794 and $18,795, with a median price of about $1,860 per horse. The median indicates that the average market value of a horse was above $1,860 per head in 50 percent of States and below $1,860 per head in 50 percent of States.

At this time, there are no goats, sheep, or horses in the United States known to be infected with B. abortus or B. melitensis. We estimate that fewer than a dozen herds, flocks, or individual animals will be eligible for indemnity under this rule prior to the eradication of brucellosis from the United States.

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

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

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

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ), the information collection or recordkeeping requirements included in this rule have been approved by the Office of Management and Budget (OMB) under OMB control number 0579-0185.

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

The regulations in 9 CFR part 94 (referred to below as the regulations) govern the importation into the United States of specified animals and animal products in order to prevent the introduction of various animal diseases, including rinderpest, foot-and-mouth disease (FMD), African swine fever (ASF), classical swine fever (CSF), and swine vesicular disease. These are dangerous and destructive communicable diseases of ruminants and swine. Section 94.9 of the regulations restricts the importation into the United States of pork and pork products from regions where CSF is known to exist. Section 94.10 of the regulations prohibits, with certain exceptions, the importation of swine that originate in or are shipped from or transit any region in which CSF is known to exist. Sections 94.9 and 94.10 provide that CSF exists in all regions of the world except for certain regions listed in those sections.

On November 13, 2003, we published in the Federal Register (68 FR 64274-64282, Docket No. 03-009-1) a proposal to amend the regulations by adding Chile to the list of regions we recognize as free of CSF. We also proposed to add Chile to a list of CSF-free regions whose exports of live swine, pork, and pork products to the United States must meet certain certification requirements to ensure their freedom from CSF, and to amend those requirements to accommodate the addition of Chile to the list. In addition, we proposed to amend those certification requirements to require, for pork and pork products from a region listed in § 94.24, an additional statement that the swine from which the pork and pork products were derived have not lived in a region affected with CSF.

We solicited comments concerning our proposal for 60 days ending January 12, 2004. We received three comments by that date. They were from an importer and from associations of pork producers. Two of the commenters supported the proposed rule. The third commenter asked for additional information regarding several issues in the proposed rule. These issues are discussed below by topic.

The commenter requested additional information about the ongoing surveillance that Chile's Agricultural and Livestock Service (Servicio Agricola y Ganadero, SAG) conducts for CSF in Chilean commercial swine. The commenter stated that data referred to in material supporting Chile's request to be considered free of CSF are several years old and appear to be “point-in-time” samples related to managing and eliminating the last outbreaks of CSF in Chile in 1995 and 1996. The commenter asked whether there is a plan for federally funded, routine, ongoing surveillance for commercial and noncommercial populations of swine in Chile. The commenter also wanted to know whether both swine held on breeding farms and swine intended for slaughter were being sampled as part of the testing and what specific level of detection the current testing supports.

As stated in the evaluation that we conducted regarding the CSF status of Chile, SAG tested swine on 321 family farms, located in all 13 regions of Chile, for CSF in 2000 and 2001. The number of samples totaled 1,705. In addition, the evaluation referred to serological data for 2002 that SAG provided. Those data included samples taken at both commercial premises and backyard (family) premises that possessed or raised swine. These data reflected testing performed from January to December 2002. We based our determination that Chile is free of CSF on these data, not the data from the earlier testing conducted after the last outbreaks of CSF in Chile to which the commenter refers.

Chile does have a plan for federally funded, routine, ongoing surveillance for CSF in both commercial and noncommercial populations of swine. Both swine held on breeding farms and swine held on commercial properties that send swine for slaughter at export facilities are tested using an enzyme-linked immunosorbent assay for CSF under the surveillance plan.

As to the specific level of detection, the sampling design for 2002 was based on two sets of high-risk herds. In the first set, the sampling design for herds that were considered high risk due to their proximity to certain areas (airports, seaports, land borders, garbage dumps, or owners with a history of feeding waste to pigs) was intended to detect a 20 percent within-herd prevalence. In the second set, the sampling design for herds considered high risk due to a history of past positive serology was intended to detect a 1 percent within-herd prevalence level.

The commenter also asked whether there is a plan for federally funded, routine, ongoing surveillance for wild boars in Chile, stating that it did not appear that a surveillance program had been developed or conducted for CSF or other communicable diseases of swine in the wild boar population. The commenter stated that the wild boar population should be thoroughly assessed for possible infection by CSF and other communicable diseases of swine before the Animal and Plant Health Inspection Service (APHIS) declares Chile free of CSF.

As of December 2002, SAG had not performed surveillance for CSF in the free-range wild boar population. However, SAG performed surveillance for CSF at wild boar operations in Chile, based on the rationale that animals at these operations originated as wild animals and have been in captivity for several generations.

APHIS has no evidence that suggests that CSF is present in or has ever been present in feral swine in Chile. We consider this situation to be analogous to conditions in the United States. There is no evidence to suggest that CSF is present in feral swine within the continental United States. Therefore, APHIS does not conduct surveillance for CSF in feral swine within the continental United States at this time. Under the World Trade Organization (WTO) Agreement on the Application of Sanitary and Phytosanitary Measures and the principle of national treatment in the WTO General Agreement on Tariffs and Trade, APHIS must establish requirements for the importation of animals and animal products that are no more restrictive than the requirements APHIS imposes on the interstate movement of animals and animal products. Given these circumstances, APHIS does not believe it would be appropriate to require Chile to conduct CSF surveillance in its wild boar population. We are making no changes to the proposed rule in response to this comment.

Given the situation discussed above, the commenter requested assurance that wild boar in Chile pose a negligible, minimal risk of transmitting diseases to commercial swine. The commenter cited recent experiences in European countries as indicating that the two populations may be linked with respect to CSF transmission.

As we discussed in the proposed rule, several circumstances mitigate the risk of disease transmission, if any disease were to be present, from wild boar to commercial swine in Chile. There are few commercial swine operations in those regions of Chile where there are concentrated populations of wild boar; rather, family farms are usually prevalent in such regions. Even if CSF or another communicable disease of swine were present in the wild boar population, it is unlikely that such a disease would be transmitted from wild boar to commercial swine facilities because of the biosecurity measures in place at those facilities. In addition, the mountainous habitat of the wild boars and the areas of Chile devoted to domestic swine production are separated by forests, which the wild boar do not enter because there is no food for them in the forests.

In the proposed rule, we stated that the official diagnostic laboratory of SAG in Santiago does not isolate the causative agent for CSF because the biosecurity level of the laboratory is not sufficient to allow use of live CSF virus, which is necessary to confirm a diagnosis of CSF. This means that Chile must use a laboratory in Spain to confirm a diagnosis of CSF. We explained further that the biosecurity controls Chile imposes when a suspected case of CSF is discovered would be effective at containing the spread of a possible CSF infection even without an immediate confirmation of a CSF diagnosis. The commenter agreed with APHIS on this point, but requested that we discuss whether confirmatory testing for FMD and ASF could be accomplished within Chile. If confirmatory testing for these diseases could not be accomplished within Chile, the commenter asserted, the importation of live swine, pork, and pork products from Chile would pose a risk to the health of U.S. swine.

We consider Chile to be free of both FMD and ASF. In making the determination that these diseases do not exist in Chile, we considered Chile's diagnostic capabilities for these diseases, in the same way that we considered Chile's diagnostic capability for CSF in the proposed rule. When we determined that Chile was free from FMD and ASF, we evaluated Chile's diagnostic capabilities for these diseases and determined that they were satisfactory. If we were to determine that Chile's diagnostic capabilities for either of these diseases were inadequate at some point in the future, we would undertake separate rulemaking to amend § 94.1 (which lists regions free of FMD and rinderpest) or § 94.8 (which lists regions where ASF exists) accordingly. We are making no changes to the proposed rule in response to this comment.

The commenter noted that the United States is free of blue-eye disease (BED), and that BED appears to be a disease concern elsewhere. Given that live swine from Chile would be allowed to be imported into the United States if Chile was declared free of CSF, the commenter was concerned about the BED status of Chilean swine.

At this time, APHIS has no evidence that BED is present in Chile. If the commenter has such evidence, we would be willing to consider it. The proposed rule was prompted by a request from Chile to evaluate its CSF status; the risk evaluation and proposed rule addressed the risk of a possible CSF introduction into the United States via swine, pork, or pork products imported from Chile. If it becomes necessary to restrict imports of Chilean swine, pork, or pork products due to BED, we will undertake separate rulemaking to restrict their importation or, in the case of live swine, use our authority under § 93.504(a)(3) to deny the swine a permit for importation into the United States due to communicable disease conditions in Chile.

The commenter asked that APHIS clarify the circumstances that prompt us to conduct a qualitative risk assessment rather than a quantitative risk assessment. The commenter stated that semi-quantitative or quantitative analyses allow for a more standardized risk evaluation and allow stakeholders to more easily compare risks and determine what level of risk APHIS considers acceptable. The commenter also questioned the value of qualitative risk assessments, stating that such assessments rely too heavily on the information gathered by a small site visit team, despite the obvious skills of the site team members.

APHIS' decision on whether to conduct a qualitative or quantitative risk assessment when evaluating the disease status of a region is dependent primarily on two factors. One of these is the disease conditions in the region that has requested to be evaluated regarding its disease status. Regions that request to be declared free of a disease typically have not reported an outbreak of the relevant disease in many years and do not allow vaccination, which might mask disease. Such regions may be considered to pose a relatively low risk for disease presence. For such regions, APHIS has historically conducted qualitative analyses when evaluating their disease status. Chile's last outbreak of CSF occurred in 1996, and Chile no longer vaccinates swine for CSF; these considerations indicated to us that a qualitative risk assessment was appropriate.

The second factor is whether or not we perceive that there may be underlying risk in the region. Regions for which quantitative analyses are conducted are typically those for which a qualitative evaluation has suggested that the region poses a higher level of risk than that described above. Risks of trade in commodities from the higher-risk regions often lend themselves to evaluation by a quantitative risk analysis model. However, no evidence gathered during the qualitative risk assessment for Chile indicated that such underlying risks exist in Chile for CSF. Based on these considerations, we conducted a qualitative risk assessment to evaluate whether Chile is free from CSF.

APHIS is preparing a description of its regionalization process, which will be posted on the Veterinary Services Web site when it is finalized. An announcement of its availability will be published in the Federal Register in the near future. Among other things, the description will outline the way in which APHIS conducts and applies risk analyses to assist with the decisionmaking process for regionalization.

We are, however, making minor editorial changes to the regulatory text to improve clarity.

Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, with the changes discussed above.

This is a substantive rule that relieves restrictions and, pursuant to the provisions of 5 U.S.C. 553, may be made effective less than 30 days after publication in the Federal Register . This rule adds Chile to the lists of regions considered free of CSF and allows pork, pork products, live swine, and swine semen to be imported into the United States from Chile, subject to certain conditions. We have determined that approximately 2 weeks are needed to ensure that APHIS and Department of Homeland Security-Bureau of Customs and Border Protection personnel at ports of entry receive official notice of this change in the regulations. Therefore, the Administrator of the Animal and Plant Health Inspection Service has determined that this rule should be effective 15 days after publication in the Federal Register .

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

Under the regulations in 9 CFR part 94, the importation into the United States of live swine, pork, pork products, and swine semen that originates in or transits any region where CSF exists is generally prohibited, except for certain pork products processed in accordance with the regulations. Furthermore, even if a region is considered free of CSF, the importation of pork and pork products from that region may be restricted, depending on the region's proximity to or trading relationships with regions where CSF exists. CSF is a transmissible animal disease with potentially serious consequences for international trade of animals and animal products.

The Agriculture and Livestock Service of the Government of Chile asked APHIS to evaluate Chile's CSF status. APHIS conducted a site visit in Chile and, using data from this site visit and data supplied by the Government of Chile, performed a subsequent risk evaluation that indicated that Chile is free of CSF. This final rule, therefore, recognizes Chile as free of CSF. However, since Chile shares borders with regions that the United States does not recognize as free of CSF, imports live swine from a region that the United States does not recognize as free of CSF, and imports certain products from regions affected with CSF under conditions that are less restrictive than those in our regulations in 9 CFR part 94, we are also adding certification requirements for live swine, pork, and pork products imported into the United States from Chile to ensure their freedom from CSF.

In 1997, Chile had 105,665 swine farms on which 1.7 million swine were raised. There were 289 commercial premises, which represented 69 percent of Chile's hog facilities. 1 In the United States in 2000, on the other hand, there were 98,460 swine producers raising about 59,407,000 swine valued at $4.26 billion. 2 Chile has never exported live swine to the United States. In 1998, the United States imported from Chile 18 metric tons of frozen swine edible offal (Harmonized Tariff Schedule [HS] code number 020649). No other pork meat or any other pork product has been imported by the United States from Chile since then (table 1).

Frozen and dried pork accounts for 87 percent of all Chilean exports of pork and pork products; the remaining 13 percent consists of either fresh or chilled pork. In 2000, Chile exported 33,900 metric tons of pork. Of this, 30.1 metric tons was cooked pork, which was exported either frozen or dried (table 2). That same year, the United States imported 368,700 metric tons of pork, more than 10 times the total of Chile's pork exports.

On average, between 1998 and 2001, Chile's global exports of live swine amounted to approximately 0.3 percent of the volume of U.S. imports of live swine (tables 3 and 4). Specifically, Chile's global exports of live swine were 0.28 percent of the volume of U.S. imports of live swine in 1998, 0.33 percent in 1999, 0.39 percent in 2000, and 0.32 percent in 2001. Between 1998 and 2001, the volume of Chile's exports of pork and pork products to the world was, on average, equivalent to 9 percent of the volume of U.S. imports of pork and pork products.

The Regulatory Flexibility Act requires that agencies consider the economic effects of their rules on small entities. Domestic swine producers and processors of pork and pork products, as well as brokers, agents and others in the United States who would become involved in any future importation and sale of swine, pork, and pork products from Chile, are most likely to be directly affected by this change to Chile's CSF status. The number and size of the entities that may become involved in any future importation and sale of swine (or products) from Chile is unknown. However, it is reasonable to assume that most will be small, based on the Small Business Administration's standards, since most businesses are classified as small under those standards.

From an economic standpoint, this change in Chile's CSF status should have little or no effect on domestic entities in the United States. This is because exports from Chile in quantities sufficient to have a significant effect on the U.S. market are unlikely. We do not anticipate that any U.S. entities, small or otherwise, will experience any significant economic effects as a result of this action.

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

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

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ), the information collection or recordkeeping requirements included in this rule have been approved by the Office of Management and Budget (OMB) under OMB control number 0579-0235.

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

What events have caused this AD? A report of an accident involving a Cessna Model 525 airplane where the pilot reported a problem with the pitch trim system, and later Cessna and FAA analysis that revealed the potential for a single-wire shorting caused us to issue AD 2003-21-07, Amendment 39-13342 (68 FR 60028, October 21, 2003). AD 2003-21-07 currently requires you to do the following on Cessna Model 525 airplanes:

What has happened since AD 2003-21-07 to initiate this action? AD 2003-21-07 is considered an interim action since compliance corrected the condition where the control wheel autopilot/trim disconnect switch did not stop the runaway condition. However, AD 2003-21-07 did not correct the issue of the single-point failure while still utilizing the desired equipment. Cessna has now developed and made changes in the design of the affected trim printed circuit board (PCB) assembly to eliminate the single-point failure while allowing the use of the equipment, and identified additional airplanes that have the same unsafe condition.

What is the potential impact if FAA took no action? Failure of the electric trim system would result in a large pitch mistrim and would cause excessive control forces that the pilot could not overcome.

Has FAA taken any action to this point? We issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to certain Cessna Model 525 airplanes. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on February 11, 2004 (69 FR 6585). The NPRM proposed to supersede AD 2003-21-07 with a new AD that would require you to:

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

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

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

How many airplanes does this AD impact? We estimate that this AD affects 251 airplanes in the U.S. registry.

What is the cost impact of this AD on owners/operators of the affected airplanes? We estimate the following costs to accomplish the modification of the 6518351-8 trim PCB assembly to a 6518351-10 trim PCB assembly. We have no way of determining the number of airplanes that may need this modification:

We estimate the following costs to accomplish the replacement of any 6518351-3 or 6518351-5 trim PCB assembly with a 6518351-10 (EX) trim PCB assembly. We have no way of determining the number of airplanes that may need this replacement:

What is the difference between the cost impact of this AD and the cost impact of AD 2003-21-07? The estimated cost impact of AD 2003-21-07 on each of the 116 airplanes in the U.S. registry affected by AD 2003-21-07 is $65. This is to disengage the pitch trim circuit breaker and AP servo circuit breaker and then tie strap each of them to prevent them from being engaged.

The estimated cost of this AD is $3,125 or $3,255 on each of 251 airplanes in the U.S. registry to do the replacement or modification of the trim PCB assembly.

What is the compliance time of this AD? The compliance time of this AD is “within the next 24 calendar months after the effective date of this AD or within 300 hours time-in-service (TIS) after the effective date of this AD, whichever occurs first.”

Why is the compliance time of this AD presented in both hours TIS and calendar time? A single-wire shorting to 28 volts or a failure of a relay that results in the relay contacts remaining closed is a direct result of airplane operation. For example, either failure could occur on an affected airplane within a short period of airplane operation while you could operate another affected airplane for a considerable amount of time without experiencing either failure. Therefore, to assure that either failure is detected and corrected in a timely manner without inadvertently grounding any of the affected airplanes, we are using a compliance time based upon both hours TIS and calendar time.

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

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

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

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

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

We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES. Include “AD Docket No. 2003-CE-54-AD” in your request.

What events have caused this AD? The Luftfahrt-Bundesamt (LBA), which is the airworthiness authority for Germany, recently notified FAA that an unsafe condition may exist on all Stemme GmbH & Co. Models S10, S10-V, and S10-VT sailplanes. The LBA reports that two drive shafts have failed during normal operation of the sailplane. The flanges of the drive shafts started to rotate within the carbon fiber reinforced plastics-tube (CFRP-tube), while the drive shafts still appeared to be intact when looking at them from the outside. The metal flanges on both ends of the drive shafts might not have been properly glued to the CFRP-tube.

What is the potential impact if FAA took no action? Incorrectly glued drive shafts could result in drive shaft failure. This failure could lead to loss of control of the sailplane.

Has FAA taken any action to this point? We issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to all Stemme GmbH & Co. Models S10, S10-V, and S10-VT sailplanes. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on April 16, 2004 (69 FR 74). The NPRM proposed to require you to remove the drive shaft assembly and ship it to the service department of Stemme GmbH & Co. After an initial visual inspection, the service department will perform an operational check to determine whether the drive shaft can be further used or must be replaced. Once corrective action is taken, the NPRM also proposed to require you to install the returned drive shaft.

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

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

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

How many sailplanes does this AD impact? We estimate that this AD affects 57 sailplanes in the U.S. registry.

What is the cost impact of this AD on owners/operators of the affected sailplanes? We estimate the following costs to remove the drive shaft, ship it to and from manufacturer's service department, and install the drive shaft after manufacturer's inspection is complete:

We estimate the following costs for the manufacturer to do the inspection and any necessary repairs that will be required based on the results of this inspection. We have no way of determining the number of sailplanes that may need this repair:

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

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

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

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

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

We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES. Include “AD Docket No. 2003-CE-58-AD” in your request.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Airbus Model A300-600 and A310 series airplanes was published in the Federal Register on April 6, 2004 (69 FR 17996). That action proposed to require modification of the attachment system of the insulation blankets of the forward cargo compartment and related corrective action.

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

Since issuance of the proposed AD, the manufacturer has revised the referenced service information. Therefore, we have changed paragraph (a) of this final rule to refer to Airbus Service Bulletins A300-21-6045 (for Model A300-600 series airplanes) and A310-21-2059 (for Model A310 series airplanes), both Revision 02, both dated March 27, 2003, for accomplishment of the modification of the attachment system of the insulation blankets of the forward cargo compartment. We have also noted that accomplishment of the modification before the effective date of this AD using Revision 01 of the service bulletins is acceptable for compliance with that paragraph. Revision 02 has been identified as mandatory and contains procedures that are essentially the same as those in Revision 01 (referenced in the proposed AD as the appropriate source of service information for accomplishment of the actions).

We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD with the change described previously. This change will neither increase the economic burden on any operator nor increase the scope of the AD.

We estimate that 149 airplanes of U.S. registry will be affected by this AD, that it will take about 3 work hours per airplane to accomplish the modification, and that the average labor rate is $65 per work hour. Required parts will cost about $198 per airplane. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $58,557, or $393 per airplane.

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

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Boeing Model 747-100, 747-200B, 747-200C, 747-200F, 747-300, 747-400, 747-400D, 747-400F, and 747 SR series airplanes was published in the Federal Register on December 8, 2003 (68 FR 68306). That action proposed to require inspection of fire extinguisher bottles in the engine and the auxiliary power unit (APU) to determine the part number; and replacement of the fire extinguisher bottles with new fire extinguisher bottles, 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 states that the proposed AD does not apply to its fleet.

Two commenters requested that the FAA relax the requirement to replace any affected fire extinguisher bottles prior to further flight after inspecting to determine the bottles' part number. The commenters state that it is more efficient to inspect first and replace the components later. The commenters further state that many repair stations are qualified to do the inspections, while few of them have the required replacement fire extinguisher bottles on hand because these parts are not widely stocked. The commenters state that the replacements could be accomplished more quickly if any repair station could inspect the fire extinguisher bottles for the part number, rather than only those that have the required replacements. This would allow an operator to know ahead of time how many bottles to procure, and would preclude grounding airplanes and causing schedule disruptions while the required replacement is obtained. This commenter does not believe that safety would be compromised by removing the requirement to replace the fire extinguisher bottles before further flight.

We do not agree with the request to relax the compliance time for replacements. In developing the proposed compliance time of two years for the inspections and any necessary replacements “prior to further flight,” we considered the safety implications, the average utilization of the affected fleet, the practical aspects of an orderly inspection of the fleet during regular maintenance periods, and the availability of required parts. Our intent in proposing two years for the inspections was to allow operators to do the inspections and any necessary replacements during a scheduled maintenance visit. This would allow operators to plan ahead to have sufficient replacements on hand or readily available without grounding the airplane or disrupting schedules should the fire extinguisher bottle need to be replaced. In addition, we do not allow airplanes with known deficient engine fire extinguisher bottles to operate; the master minimum equipment list (MMEL) does not allow airplanes to be dispatched with one engine fire extinguisher bottle that is inoperative. We have not revised the compliance time for 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 as proposed.

There are approximately 346 airplanes of the affected design in the worldwide fleet. The FAA estimates that 47 airplanes of U.S. registry will be affected by this AD, that it will take approximately 1 work hour per airplane to accomplish the required actions, and that the average labor rate is $65 per work hour. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $3,055, or $65 per airplane.

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

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Bombardier Model DHC-8-102, -103, and -106 airplanes was published in the Federal Register on May 5, 2004 (69 FR 25041). That action proposed repetitive detailed inspections of the left and right aileron tab actuator arm channels for cracking, and corrective actions if necessary. That action also proposed an optional terminating action for the repetitive inspections.

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

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

We estimate that 30 airplanes of U.S. registry will be affected by this AD, that it will take approximately 1 work hour per airplane to accomplish each required repetitive 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 $1,950, or $65 per airplane, per inspection.

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) by superseding AD 98-25-51, amendment 39-10952 (63 FR 70637, December 22, 1998), which is applicable to certain Airbus Model A300-600 and A310 series airplanes, was published in the Federal Register on April 14, 2003 (68 FR 17893). The action proposed to require deactivating both thrust reversers and revising the airplane flight manual (AFM) to ensure safe and appropriate performance during certain takeoff conditions.

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 supports the AD as proposed. Air Transport Association (ATA) reports that its members generally support the intent of the rulemaking.

One commenter, an operator, is concerned that the proposed 1-year compliance time would result in grounded airplanes, and requests that the compliance time be extended from 12 months to 3 years. The operator reports that no thrust reversers have deployed in flight, uncommanded, on its affected airplanes. The operator notes that all of its PW4000-powered A310/A300-600 airplanes and engine spares have been modified, but hardware changes were often needed for configuration compatability. Further, because the modification was done during the 180-day passenger-to-freighter conversion process, the hardware changes were handled within the scheduled time with no unscheduled downtime. However, unlike its PW4000-powered fleet, the operator states that all of its PW JT9D-7R4-powered airplanes are in operational service and are to be modified during a shorter maintenance visit. The operator concludes that a 3-year compliance time for the modification would minimize the economic impact on operators'without compromising safety, since the repetitive inspections required by AD 98-25-51 would still be in force until the modification is done.

We partially agree with the request. We have previously issued an alternative method of compliance (AMOC) for the requirements of AD 98-25-51. The AMOC, based on a method developed cooperatively between the airframe and engine manufacturers, allows the thrust reversers to be reactivated in accordance with an FAA-approved program of parts replacement and repetitive inspections. However, because of the severe consequences associated with an in-flight thrust reverser deployment, we cannot increase the compliance time to 3 years, as the operator requests. Nonetheless, to avoid airplanes being grounded until the modification can be done, we agree to extend the compliance time for the modification from 1 year to 18 months. We have determined that this extension will not adversely affect safety. Paragraph (c) of this final rule has been changed accordingly. We have advised the Direction Générale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, of this change.

One commenter, the manufacturer, considers the proposed compliance time appropriate, but requests a deadline not earlier than June 30, 2004, to correspond to the compliance time mandated by French airworthiness directive 2001-523(B), dated October 31, 2001. In light of the compliance time discussion above, the new compliance time for this AD will not take effect until after June 30, 2004.

One commenter, the manufacturer, states that Airbus All Operators Telex (AOT) 78-09 (currently at Revision 3, dated June 29, 1999) has been considered as an approved AMOC for the requirements of AD 98-25-51 to allow the thrust reversers to be reactivated. The manufacturer notes that the proposed AD does not refer to Airbus AOT 78-09, or to AOT 78-10, which is referenced in AOT 78-09 and provides details for an exhaustive check of the thrust reverser electrical circuit as part of the reactivation control program/reinforcement against power supply loss. We infer that the manufacturer requests that we revise the proposed AD to refer to these AOTs and give credit for paragraphs (a) and (b) of the proposed AD for airplanes on which the actions specified in AOT 78-09 have been done.

We partially agree with the request; however, the actions specified in AOT 78-09 alone are insufficient to address the unsafe condition. We approved the AMOC to AD 98-25-51 to allow reactivation of the thrust reversers in accordance with Revision 3 of Airbus AOT 78-09, but the AOT does not contain all the AMOC requirements. The referenced AMOC involves certain tests, checks, maintenance actions, and parts changes to each individual thrust reverser. The AMOC is conditional on a stow-latching minimum-force check being done after the serialized selector solenoid valve is installed. That check is not specified in the AOT. We agree that most of the thrust reverser reactivation program is defined in Airbus AOT 78-09, Revision 3; however, additional actions are included in the complete AMOC, so the accomplishment of the AOT actions alone cannot be considered an approved AMOC to this AD. In addition, the reference to AOT 78-10—through AOT 78-09—is sufficient for purposes of this AD. However, we have added a new Note 3 in this final rule to clarify the purpose of the AMOC and its relationship to the AOT, and reidentified subsequent notes.

One commenter, the manufacturer, finds that the term “unsafe condition” is inappropriately used in the preamble to the proposed AD. The manufacturer takes exception to the characterization of the modification as being necessary to address the unsafe condition. The manufacturer asserts that the reactivation program restores the level of safety required to satisfy the original design requirements for the thrust reverser sytem, and adds that the modification was developed to add a supplementary level of protection against inadvertent deployment of the thrust reversers.

We do not agree that the term “unsafe condition” is inappropriate as it is used in the proposed AD. The requirements of AD 98-25-51 (deactivating both thrust reversers and revising the airplane flight manual) are intended to prevent in-flight deployment of the thrust reversers and consequent reduced controllability of the airplane. The subsequently issued AMOC (discussed previously) was intended as an interim action only. Although we recognize the improved reliability provided to the thrust reverser system by the reactivation program, we have determined that the basic two-line-of-defense architecture does not adequately address the system's vulnerability to damage and long-term maintainability. Therefore, the modification is necessary to prevent the identified unsafe condition. No change to the final rule is necessary regarding this issue.

Airbus reports that the estimated costs associated with the proposed modification have been revised. We have revised the Cost Impact section accordingly in this final rule.

One commenter, an operator, states that the proposed AD understates the estimated costs associated with the modification because certain parts specified in Pratt & Whitney Service Bulletins PW7R4 A78-179 and JT9D-7R4-A73-80 were not considered. The operator asserts that the proposed AD accounts only for the labor hours, not the parts costs, associated with the actions specified in those service bulletins. The commenter provides its actual costs incurred to modify one of its airplanes, and compares those costs to the cost estimates of the proposed AD.

We agree that the parts costs may be underestimated in the proposed AD. While the commenter's total parts cost was $114,622 with Pratt & Whitney Service Bulletin PW7R4A78-179 included, we estimate that the parts costs could be as high as $120,000, depending on the airplane configuration. We have revised the Cost Impact section accordingly in this 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.

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 AMOCs. However, for clarity and consistency in this final rule, we have retained the language of the proposed AD regarding that material.

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

This AD affects about 38 airplanes of U.S. registry. The FAA provides the following cost estimates for the actions specified in this AD:

Operators should note that, if the actions specified in Pratt & Whitney Service Bulletins PW7R4 A78-179 and JT9D-7R4-A73-80 have not been previously accomplished, the total parts costs associated with the required modification could be as high as $120,000 per airplane.

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

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

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

This amendment to part 97 of the Federal Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs). The complete regulatory description of each SIAP is contained in official FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of the Federal Aviation Regulations (FAR). The applicable FAA Forms are identified as FAA Forms 8260-3, 8260-4, and 8260-5. Materials incorporated by reference are available for examination or purchase as stated above.

The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained in FAA form documents is unnecessary. The provisions of this amendment state the affected CFR (and FAR) sections, with the types and effective dates of the SIAPs. This amendment also identifies the airport, its location, the procedure identification and the amendment number.

This amendment to part 97 is effective upon publication of each separate SIAP as contained in the transmittal. Some SIAP amendments may have been previously issued by the FAA in a National Flight Data Center (NFDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP amendments may require making them effective in less than 30 days. For the remaining SIAPs, an effective date at least 30 days after publication is provided.

Further, the SIAPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The Office of Management and Budget has required NASA to complete its annual financial statements sooner. Since recipients maintain NASA's official records for its assets in their possession, NASA uses the data contained in recipients' reports for annual financial statements and property management. As a result, NASA is changing the date for submission of annual Inventory Reports from October 31 to October 15 of each year.

NASA published an interim rule in the Federal Register (69 FR 5016) on February 3, 2004. No public comments were received in response to the interim rule. However, the interim rule failed to revise the property reporting date in sections 1260.74, Property use, disposition, and vesting of title; 1260.75, Summary of Report Requirements; and 1274.933. This final rule revises these dates consistent with the interim rule. This change is consistent with the intent and changes made in the interim rule and therefore, publication for public comment is not considered necessary.

This final rule is not a significant regulatory action, and therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This final rule is not a major rule under 5 U.S.C. 804.

NASA certifies that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. , because it requires no additional work.

The Paperwork Reduction Act does not apply because this final rule does not impose any new recordkeeping or information collection requirements, or collection of information from offerors, contractors, or members of the public that require the approval of the Office of Management (OMB) and Budget under 44 U.S.C. 3501, et. seq.

Section 18(t)(1) of the Federal Deposit Insurance Act, 1 sections 5318A(a)(4), 5318A(e)(2) and 5318(h)(2) of the Bank Secrecy Act  2 (“Bank Secrecy Act”), and the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 3 (the “USA PATRIOT Act”) require consultation between the Commission and various other agencies of the Federal government. Section 17(b)(1)(B) of the Securities Exchange Act of 1934 4 (“Exchange Act”) requires the Commission to give notice and deliver other information to the Commodity Futures Trading Commission.

The Commission is adopting amendments to Rule 30-3  5 of its Rules of Organization and Program Management governing delegations of authority to the Director of the Division of Market Regulation, Rule 30-5  6 governing delegations of authority to the Director of the Division of Investment Management, and Rule 30-18  7 governing delegations of authority to the Director of the Office of Compliance Inspections and Examinations.

The Commission is amending Rule 30-3 to redesignate paragraph (g) as paragraph (j), and add new paragraphs (g), (h) and (i) to authorize the Director of the Division of Market Regulation to consult on behalf of the Commission with other agencies of the Federal government pursuant to section 18(t)(1) of the Federal Deposit Insurance Act, sections 5318A(a)(4), 5318A(e)(2) and 5318(h)(2) of the Bank Secrecy Act, and provisions of the USA PATRIOT Act requiring consultation with the Commission, with respect to matters that relate to the responsibilities of the Director of the Division of Market Regulation described in 17 CFR 200.19a. 8 The Commission is amending Rule 30-5 to redesignate paragraphs (g), (h), (i), (j) and (k) as paragraphs (i), (j), (k), (l) and (m), and add new paragraphs (g) and (h) to authorize the Director of the Division of Investment Management to consult on behalf of the Commission with other agencies of the Federal government pursuant to sections 5318A(a)(4), 5318A(e)(2) and 5318(h)(2) of the Bank Secrecy Act and provisions of the USA PATRIOT Act requiring consultation with the Commission, with respect to matters that relate to the responsibilities of the Director of the Division of Investment Management described in 17 CFR 200.20b. The Commission is also amending paragraph (c) of Rule 30-18 to authorize the Director of the Office of Compliance Inspections and Examinations to notify and consult with the Commodity Futures Trading Commission pursuant to section 17(b)(1)(B) of the Exchange Act.

This delegation of authority is intended to conserve Commission resources by permitting the Director of the Division of Market Regulation, the Director of the Division of Investment Management and the Director of the Office of Compliance Inspections and Examinations to fulfill the Commission's consultation and notice provision requirements. Nevertheless, the staff may submit matters to the Commission for consideration, as it deems appropriate.

The Commission finds, in accordance with section 553(b)(3)(A) of the Administrative Procedures Act, 9 that these amendments relate solely to agency organization, procedure or practice, and do not relate to a substantive rule. Accordingly, notice, opportunity for public comment and publication of the amendment prior to its effective date are unnecessary. Similarly, the requirements of the Regulatory Flexibility Act  10 do not apply.

The collection of information contained in these final regulations has been submitted to the Office of Management and Budget for review in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) under control number 1545-1819.

The collection of information is in § 31.3406(g)-1(f)(3). This information is necessary to notify a cardholder/payor that a merchant/payee is not a qualified payee for purposes of the regulations. This information will alert a cardholder/payor that backup withholding under section 3406 may apply for future reportable payments. The collection of information is voluntary to obtain a benefit. The likely respondents are business or other for-profit institutions.

Estimated total annual reporting burden: 11,750,000 hours.

Estimated average annual burden per respondent: 5,875 hours.

Estimated number of respondents: 2,000.

Estimated annual frequency of responses: monthly.

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

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

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

This document contains amendments to 26 CFR part 31 relating to backup withholding and the IRS TIN Matching Program under section 3406 of the Internal Revenue Code (Code). It also contains amendments to 26 Part 301 relating to waivers under section 6724 of information reporting penalties under sections 6721 and 6722.

Section 6041(a) requires persons engaged in a trade or business and making payment in the course of such trade or business to another person of rent, salaries, wages, premiums, annuities, compensations, remunerations, emoluments, or other fixed or determinable gains, profits, and income of $600 or more in any one taxable year to file information returns with the IRS and to furnish information statements to payees. Among other items, the payor must include the payee's name and taxpayer identification number (TIN) on the information return and the information statement.

In general, section 6721(a)(1) imposes a $50 penalty for each failure to file an information return on or before the required filing date, for any failure to include all of the information required to be shown on the return, or for the inclusion of incorrect information. Section 6724(a) provides that no penalty will be imposed under section 6721 if it is shown that the failure is due to reasonable cause and not to willful neglect.

Section 3406(a)(1) requires a payor to withhold on any reportable payment (as defined in section 3406(b)(1)) if (1) the payee fails to furnish the payee's TIN to the payor as required or (2) the Secretary notifies the payor that the TIN furnished by the payee is incorrect. Section 3406(a)(1) also requires withholding in certain other situations that are not addressed in these regulations. Section 3406(i) provides that the Secretary shall prescribe the regulations necessary or appropriate to carry out the purposes of section 3406.

A payment card transaction is a transaction in which a cardholder/payor uses a payment card to purchase goods or services and a merchant agrees to accept a payment card as a means of obtaining payment. A payment card is a card (or an account) that (1) is issued by a payment card organization or one of its members, affiliates, or licensees to a cardholder/payor and (2) represents, upon presentation to a merchant/payee, an agreement of the cardholder to pay the merchant through the payment card organization. A payment card organization is an entity that sets the standards and provides the mechanism, acting directly or indirectly through its members, affiliates, or licensees, for effectuating payment between a purchaser and a merchant in a payment card transaction.

Information reporting compliance is difficult in payment card transactions because an invoice may not be issued, and the employee representing the cardholder/payor in the transaction may not request and obtain the name/TIN combination of the merchant/payee at the time of the transaction. In addition, backup withholding may be difficult because a merchant receives payment from the payment card organization within a few days after the transaction, but the cardholder does not pay the payment card organization until after it receives a payment card monthly billing statement.

On January 31, 2003, temporary regulations relating to the IRS TIN Matching Program were published in the Federal Register (TD 9041; 68 FR 4922). The temporary regulations permit a payor's authorized agent to participate in the IRS TIN Matching Program on behalf of the payor. Under the authority of these temporary regulations, the IRS issued Rev. Proc. 2003-9 (2003-1 C.B. 516) that allows payors' authorized agents, as well as all payors, to participate in the IRS TIN Matching Program.

A notice of proposed rulemaking (REG-116641-01) cross-referencing the temporary regulations was also published in the Federal Register (68 FR 4970) for January 31, 2003. The notice of proposed rulemaking contained additional proposed rules relating to the information reporting and backup withholding requirements for payment card transactions effectuated through a Qualified Payment Card Agent (QPCA).

The proposed regulations provide limited exceptions to the backup withholding requirements for payment card transactions. The principal exception applies if the payment is made through a QPCA and the payee is a qualified payee.

A payee is qualified for this purpose if, at the time of the payment, the QPCA has validated the payee's TIN through the IRS TIN Matching Program or if the payment is made during the six-month period following the date on which the QPCA first obtained the payee's TIN (six-month grace period). Under the proposed regulations, a QPCA must notify a cardholder/payor of any merchant/payees that are not qualified payees. The notice must appear on the billing information for the payment.

The proposed regulations provide a second exception for payments to persons other than qualified payees. Under this exception, reportable payments made through a QPCA are exempt from backup withholding if the payment is made within 60 days after the date of the first payment with respect to which the QPCA is required to provide notification to the payor that the payee is not a qualified payee.

In addition, the proposed regulations provide that cardholder/payors may establish reasonable cause for a failure to include all of the information required to be shown on their information returns, or for the inclusion of incorrect information, based on reliance on merchant/payee TINs supplied through a QPCA.

The proposed regulations provide that the rules relating to backup withholding and information reporting for payment card transactions apply during 2004. The temporary rule permitting agents to participate in the TIN matching program was effective January 31, 2003.

A public hearing was held on the proposed regulations on May 2, 2003. The IRS also received written and electronic comments responding to the notice of proposed rulemaking.

After consideration of all the comments, the proposed regulations relating to the backup withholding requirements for payment card transactions effectuated through a QPCA and the reasonable cause exception to information reporting penalties are adopted as revised by this Treasury decision. The revisions are discussed below. The temporary amendments to the regulations relating to the IRS TIN Matching Program are also adopted as final regulations and the corresponding temporary regulations are removed.

Several commentators recommended that the final regulations eliminate the qualified payee requirement and provide a complete exemption from backup withholding for payment card transactions made through a QPCA. One commentator noted that § 31.3406(g)-2(e) of the regulations provides that a real estate reporting person is not required to backup withhold on a real estate transaction subject to reporting under section 6045. As an alternative to backup withholding, this commentator suggested that the QPCA should provide a list to the IRS of the merchant/payees for whom the QPCA cannot obtain valid TINs. The commentator further suggested that the IRS should impose penalties on the merchant/payees who fail to furnish valid TINs, rather than require backup withholding.

The regulatory exception for real estate transactions is based on section 3406(h)(5)(D), which provides that, except as otherwise provided in regulations, a real estate broker (as defined in section 6045(e)(2)) is not a broker for purposes of section 3406. The Code also includes limited grants of regulatory authority to except otherwise reportable payments from backup withholding in section 3406(b)(5) (relating to payments that do not exceed $10) and in section 3406(g) (relating to payments to specified payees). The IRS and the Treasury Department do not view these limited grants of regulatory authority as authorizing a regulatory exemption for a broad class of transactions, which according to the comments involve payments of over $100 billion per year, regardless of the payee's identity or compliance with its tax obligations. Therefore, the final regulations do not adopt the recommendation for a complete exemption from backup withholding for payment card transactions made through a QPCA.

Several comments criticized the specific rules for determining whether a payee is a qualified payee and when backup withholding is required with respect to a payee who is not qualified. In general, the commentators viewed these rules as incompatible with current business practice because they require QPCAs to evaluate the status of payees at the time of each transaction and to communicate to cardholders through the billing process. The commentators suggested various changes to conform the rules to current business practices.

The IRS and the Treasury Department agree that the rules should accommodate current business practices to the extent practicable but believe some of the suggestions in the comments go beyond what is necessary and provide excessive periods of exemption from backup withholding for noncompliant payees. Accordingly, the final regulations include a number of new rules to address the commentators' concerns but do not adopt all of the specific changes suggested in the comments.

As suggested in the comments, the final regulations eliminate the requirement that QPCAs include information regarding payee status with the billing statement furnished to the payor. Instead, the final regulations require that the information be furnished within four months of the date of the payment and permit the information to be furnished as part of a quarterly or other regular report of payee data to the cardholder. To eliminate the need to evaluate the status of payees at the time of each payment, the final regulations permit QPCAs to treat all payments made during a calendar quarter or any shorter reporting period as being made on the last day of the period. Thus, for a QPCA choosing this treatment, a payee will be treated as a qualified payee with respect to all payments during the period if the QPCA obtains and verifies the payee's TIN at any time before the end of the period. Similarly, payments will be treated as being made on the last day of the reporting period for purposes of determining whether they are made within the six-month grace period. In this case, however, the regulations also provide that the grace period with respect to a payee will be treated as beginning not on the date of the first payment to the payee but on the first day of the reporting period in which the QPCA makes the payment.

The 60-day exception from backup withholding for payments made to persons that are not qualified payees is also modified to reflect the new rules for determining payee status and notifying cardholders. The exception in the final regulations applies to purchases made no later than two months after the last date for providing the first notice informing the cardholder that the payee is not a qualified payee.

One commentator suggested that a QPCA should be allowed to furnish information regarding payee status electronically on a secure website. The IRS and the Treasury Department are continuing to consider this comment and may issue further guidance on this issue.

Several commentators requested that the final regulations clarify that the individual to whom the card is issued is not the cardholder/payor if another person is responsible for paying the charges on the card. The commentators were concerned that employees might be treated as cardholders in situations where payment cards are issued to employees of the person responsible for paying charges on the card. The final regulations provide the requested clarification.

Several commentators requested that the final regulations clarify that a QPCA may act directly or indirectly through its members, affiliates, or licensees. The final regulations also provide this clarification.

Several commentators requested clarification of the cardholder/payor's obligations if the payor receives notification that a payee is not a qualified payee. Under the final regulations, backup withholding may be required for purchases made more than two months after the last date for furnishing the first notification that the payee is not a qualified payee. For purchases after that date, the payor must backup withhold on any reportable payment unless it has obtained the payee's TIN in accordance with the generally applicable rules under section 3406 or the QPCA has remedied the failure that caused the disqualification by obtaining and verifying the payee's TIN. If the payor is required to backup withhold and ordinarily uses a payment method incompatible with backup withholding, the continued use of that payment method will not relieve the payor of its backup withholding obligation. (See section 3406(h)(10), which provides payments subject to backup withholding are treated as wages paid by an employer to an employee; and section 3403, which provides that an employer is liable for taxes required to be withheld and deducted.)

Because the proposed rules relating to backup withholding and information reporting for payment card transactions were not finalized before the beginning of 2004, their effective dates have been delayed. The final rules relating to backup withholding will apply to payments made after 2004 and final rules relating to information reporting will apply to returns due after 2005. The temporary rule permitting agents to participate in the TIN matching program is adopted as a final regulation with no change to its effective date of January 31, 2003.

One payment card organization suggested that the IRS repropose the regulations or issue them with an effective date of not less than two years after publication. The comment noted that reproposing the regulations would provide an opportunity for further study and comment and would provide time to test the rules in a pilot program. This suggestion was not adopted. The IRS and the Treasury Department recognize that providing an opportunity for further comment may result in improved rules, but there is no assurance that this will be the case. The IRS and the Treasury Department believe that the indeterminate benefit suggested in the comment does not outweigh the certainty that the suggested delay would deny payors any benefit from the backup withholding exception and penalty relief contained in the final regulations during the period of the delay.

The IRS is also issuing two revenue procedures to implement the rules contained in the final regulations. The first of these revenue procedures sets forth the requirements that a payment card organization must satisfy to obtain an IRS determination that it is a QPCA. The revenue procedure also provides that a QPCA may act on behalf of a cardholder/payor for purposes of soliciting, collecting, and validating the names/TINs of the merchant/payees and on behalf of a merchant/payee for purposes of furnishing the payee's name and TIN to the cardholder/payor.

The second revenue procedure provides an optional procedure for payors and their authorized agents to use in determining whether payment card transactions are reportable under section 6041 or section 6041A and are reportable payments for purposes of the IRS TIN Matching Program. In general, this revenue procedure classifies businesses by Merchant Category Codes (MCCs), or other equivalent Industry Codes, according to whether they predominantly furnish services (for which payments are reportable) or predominantly provide goods (for which payments are not reportable). Under the revenue procedure, payment card organizations would be permitted to assign MCCs, or other equivalent Industry Codes, to payees and payors would be permitted to rely on the assigned codes for information reporting and TIN matching purposes.

It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations.

It is hereby certified pursuant to the Regulatory Flexibility Act (5 U.S.C. chapter 6) that the collection of information contained in these regulations will not have a significant economic impact on a substantial number of small entities. The reporting burden affects payment card organizations and financial institutions that issue payment cards. Most payment card organizations and payment card issuers are large businesses. To the extent that small financial institutions have a reporting burden, the burden is expected to be insignificant. Accordingly, a Regulatory Flexibility Analysis is not required.

Pursuant to section 7805(f) of the Internal Revenue Code, the notice of proposed rulemaking preceding these regulations was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

The principal author of the regulations is Donna Welch, Office of Associate Chief Counsel (Procedure and Administration), Administrative Provisions and Judicial Practice Division. However, other personnel from the IRS and the Treasury Department participated in the development of the regulations.

In this document, the Bureau changes the addresses of the Chief Operating Officer and the Board of Directors of Federal Prison Industries, Inc. (also known as UNICOR), to correct and update them. We assure the public that any mail sent to the addresses in the current regulation has been and will continue to be routed to the currently correct rooms.

We published this change as an interim final rule on January 9, 2004 (69 FR 1524). We received no comments. We therefore adopt this change as final.

This regulation has been drafted and reviewed in accordance with Executive Order 12866, “Regulatory Planning and Review”, section 1(b), Principles of Regulation. The Director, Bureau of Prisons has determined that this rule is not a “significant regulatory action” under Executive Order 12866, section 3(f), and accordingly this rule has not been reviewed by the Office of Management and Budget. This rule has no costs associated with it, and benefits include informing the public of the correct addresses for UNICOR.

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. Therefore, under Executive Order 13132, we determine that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

The Director of the Bureau of Prisons reviewed this regulation under the Regulatory Flexibility Act (5 U.S.C. 605(b)) and certifies that it will not have a significant economic impact upon a substantial number of small entities for the following reasons: This rule pertains to the correctional management of offenders committed to the custody of the Attorney General or the Director of the Bureau of Prisons, and its economic impact is limited to the Bureau's appropriated funds.

This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by § 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

The Louisiana Department of Transportation and Development (LDOTD) has requested a temporary deviation in order to remove and replace electrical conduit on the U.S. 90 Swing Bridge across the Rigolets Pass, Mile 6.2, between New Orleans, Orleans Parish and St. Tammany Parish, Louisiana. The repairs are necessary to ensure the safe operation of the bridge. This temporary deviation will allow the bridge to remain in the closed-to-navigation position from 8 a.m. on Monday, July 26, 2004 until 4 a.m. on Thursday, July 29, 2004.

The bridge has a vertical clearance of 14 feet above mean high water in the closed-to-navigation position and unlimited clearance in the open-to-navigation position. Navigation at the site of the bridge consists mainly of commercial and recreational fishing vessels and recreational pleasure craft. Due to prior experience, as well as coordination with waterway users, it has been determined that this closure will not have a significant effect on these vessels. Alternate routes are available through the Chef Menteur Pass. The bridge will not be able to open for emergencies; however, work will be postponed if a tropical weather system is approaching.

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

On March 18, 2004 we published a notice of proposed rulemaking (NPRM) entitled Safety Zone: Atlantic Intracoastal Waterway, vicinity of Marine Corps Base Camp Lejeune, North Carolina in the Federal Register (69 FR 12812). We received no letters commenting on the proposed rule. No public meeting was requested, and none was held.

The existing regulations do not account for live firing of weapons from Naval vessels located offshore on the Atlantic Ocean. Projectiles from these live fire operations sometimes travel across the AICW to the impact area on Camp Lejeune. Current Naval weapons training and ammunition certification requirements necessitate extended periods of live fire. AICW closure periods longer than those currently specified in the existing regulations are necessary to ensure the safety of vessesls in this area and facilitate military training and ammunition certification processes.

This regulation includes a revision of 33 CFR 165.514(c)(2) and the addition of 33 CFR 165.514(c)(3) allowing for closure of the AICW for periods of up to 4 hours for Naval gunnery live fire exercises. This regulation also revises the contact number for the COTP at the Marine Safety Office Wilmington in 33 CFR 165.514(d).

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

We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. This rule only affects a small portion, less than two miles, of the AICW in North Carolina. This rule has been tailored in scope to impose the least impact on maritime interests, yet provide the level of safety necessary for such an event.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. The Coast Guard expects a minimal economic impact on a substantial number of small entities due to this rule because little commercial traffic transits this area of the AICW. Also, on average, a very small amount of recreational traffic travels this portion of the AICW.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

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

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

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

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

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

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

Forest Service regulations at 36 CFR part 251, subpart B, govern authorizations for occupancy and use of National Forest System lands. Section 251.50 of this subpart characterizes as “special uses” all uses of National Forest System lands, improvements, and resources, except those authorized by the regulations governing the disposal of timber (part 223), disposal of minerals (part 228), and the grazing of livestock (part 222). The regulation requires an authorization for all “special uses,” with certain exceptions.

Approximately 72,000 special use authorizations are in effect on National Forest System lands. These uses cover a variety of activities ranging from individual private uses to large-scale commercial facilities and public services. Examples of authorized land uses include road rights-of-way accessing private residences and non-Federal lands, domestic water supplies and water conveyance systems, utility rights-of-way, communications uses, ski areas, resorts, marinas, outfitting and guiding services, and public parks and campgrounds. About 6,000 special use proposals are submitted to the agency annually by various entities wanting to use and occupy National Forest System lands.

The current regulation at § 251.50(d) provides that a special use authorization is not required for use of National Forest System roads and trails, unless mandated by an order issued pursuant to § 261.50 or a regulation issued pursuant to § 261.70. Two courts have construed this provision as not requiring an authorization for special uses that occur on National Forest System roads and trails and have invalidated orders issued pursuant to § 261.50 that required a permit for special uses occurring on National Forest System roads. These rulings have created a gap in regulatory coverage that is resulting in management inconsistencies for certain types of special use activities.

Additionally, the agency prefers not to regulate uses when it is unnecessary to establish terms and conditions to protect National Forest System lands and resources or to avoid conflict with agency programs or operations.

On January 22, 2003, the Forest Service published the proposed rule in the Federal Register (68 FR 2948) and sought public comment in adopting regulations for the revision of parts 251, 261, and 295 to clarify when a special use authorization is required. Additionally, these proposed regulatory revisions would allow the agency to exempt uses from the permit requirement when it is unnecessary to establish terms and conditions to protect National Forest System lands and resources or to avoid conflict with agency programs or operations. The proposed rule gave the authorized officer the discretion to waive the special use authorization requirement in such circumstances and specified criteria upon which the authorized officer could determine that a special use authorization is not required.

During the 60-day comment period on the proposed rule that ended on March 24, 2003, the agency received five requests for an extension of the comment period. Respondents indicated that, due to the complexity of the proposed regulations, additional time was needed. The Forest Service did not extend the comment period because the agency does not agree that the proposed regulation was complex and because litigation involving certain aspects of the proposed rule is being stayed pending conclusion of this rulemaking.

The proposed rule was posted electronically on the World Wide Web on the Federal Register site at www.gpoaccess.gov and on the FirstGov e-rulemaking site at www.regulations.gov. The agency also posted the proposed rule on its World Wide Web site for special uses at www.fs.fed.us/recreation/permits. The Forest Service received 4,055 letters or electronic messages in response to the proposed rule. Each respondent was grouped in one of the following categories:

The 4,055 respondents represented 50 States, the District of Columbia, Puerto Rico, and 25 foreign countries.

The majority of comments were from organizations and individuals who were concerned about the environmental impact of the agency's not requiring a permit for routine operation or maintenance of rights-of-way. Most of these comments took the form of a standard letter or a letter substantially similar to many other comment letters.

There were many comments from recreational organizations and individuals concerned about recreational use of National Forests. Two primary subcategories of this group were motorized recreational users and recreational clubs. One State agency also submitted comments.

Holders of commercial recreation permits (specifically, outfitting and guiding permits), an industry organization, and individuals representing permit holders were another well-represented group among respondents.

Some respondents offered general comments either supporting or not supporting the proposed rule. Many respondents offered specific comments about sections of the proposed rule that they would like to see revised. Many respondents offered specific comments about current regulations, other rulemaking efforts, or existing Forest Service policy that are beyond the scope of this rulemaking. Nonresponsive comments also included those comments expressing a dislike for the Forest Service or the Federal Government in general and those comments not received in a timely manner.

Table I, which appears at the end of this final rule, has been prepared as an aid to the reader in understanding changes between the previous rule, the proposed rule, and the final rule. This table is not part of the final rule.

Comment. One respondent observed that research shows an overall trend of increasing recreation activities that supports finalizing this rule, and believed that the proposed rule would enhance the Forest Service's authority to manage National Forest land and resources to reduce impacts on the National Forest System.

Response. The Department agrees that recreation use is increasing in the National Forests. In some areas increased use has resulted in more user conflicts, increased resource impacts, and safety concerns. The rule provides the authority needed to manage special uses occurring on National Forest System roads and trails to minimize user conflicts, resource impacts, and safety concerns.

Comment. Several respondents observed that the current rules are working well and that there is no need to change them.

Response. The Department disagrees that there is no need to change the current regulations. There are several reasons for the revisions. First, an increasing number of people engaged in commercial recreation events and outfitting and guiding are relying on the regulatory gap in the current rule to conduct activities without a special use authorization. Sometimes these activities include the use of National Forest System lands outside the rights-of-way for National Forest System roads and trails. Monitoring these uses to determine whether the use is confined to a road or trail right-of-way is costly and often impractical. Requiring a special use authorization for the most common types of special uses that use and occupy National Forest System roads and trails will eliminate the need to conduct field monitoring to make such determinations.

Second, conducting one of these types of special uses on a National Forest System road or trail without an authorization exposes the United States to potential liability. Special use authorizations contain indemnification and insurance requirements and other provisions that protect the United States from claims of liability.

Third, the regulatory gap creates an uneven playing field among businesses, some of which obtain a special use authorization and pay a land use fee, while others do not. Additionally, the public should realize a market value return for commercial uses of Federal lands, which can be achieved only by requiring a special use authorization.

Comment. Several respondents were concerned that the rule would decrease competition and thus would cause economic harm to their community. They believed that commercial outfitters supply needed jobs and that this rule would put some of them out of business, causing the loss of jobs.

Response. The Department disagrees with this assertion. It is not the intent of the rule to put entities out of business, but rather to provide for greater equity among entities that conduct special uses on National Forest System roads and trails and those that do not.

The direct effect of this final rule is to require a special use authorization for outfitting and guiding, and other specifically enumerated special uses even when those activities are conducted exclusively on National Forest System roads or trails. Therefore, as a result of the final rule, some special uses that currently do not require a special use authorization will require one.

Individuals or entities that conduct outfitting and guiding without a special use authorization (because they assert that they are conducting those activities within the confines of a National Forest System road or trail) are attracting clients and conducting a viable business because of the amenities that National Forest System landscapes and resources offer, yet they are not paying a land use fee and are not required to carry liability insurance or indemnify the United States. Those who conduct outfitting and guiding under a special use authorization must comply with its terms and conditions, which generally include paying a land use fee, carrying liability insurance, and indemnifying the United States. This disparity gives unauthorized operators an unfair economic advantage over authorized businesses.

Comment. One respondent stated that documents on which the agency relies to make evaluations and form conclusions should be provided.

Response. The rulemaking record for this final rule contains all the documents pertinent to this rulemaking. These documents are available for inspection and copying at the location listed in the ADDRESSES section. Any other documents requested in comments on this rulemaking are beyond the scope of rulemaking conducted pursuant to 5 U.S.C. 553(c). Respondents interested in obtaining either category of documents may request them under the Freedom of Information Act by writing to the location listed in the ADDRESSES section for Freedom of Information Act requests.

Comment. One respondent stated that there is no regulatory gap, that the playing field is not uneven, and that any inconsistent treatment among outfitters has resulted from the agency's failure to apply the current regulation. Others observed that the proposed rule would promote consistency and fair treatment of commercial service providers and other groups using National Forest System lands, thus ensuring that the Forest Service administers the commercial use of roads and trails in a fair and equitable manner.

Response. The Department disagrees that there is no regulatory gap and agrees that this rule will promote consistency and fairness among commercial service providers. A number of current outfitting and guiding permit holders commented that this regulatory change will be beneficial to commercial permit holders. The regulatory gap creates an uneven playing field among businesses, some of which operate under a special use authorization and pay a land use fee, while others do not. Not paying a fee gives an unfair economic advantage to those who are not currently required to obtain a special use authorization. The value of these uses of National Forest System roads and trails is directly attributable to amenities associated with the National Forest System lands and resources these roads and trails traverse. The public should realize a market value return for these special uses of National Forests, which can be achieved only by requiring a special use authorization and assessing a land use fee.

Comment. One respondent stated that increased use warranting this rule change is not evident. Conversely, another respondent observed that there is now a near constant flow of traffic that has become a problem to residents. This respondent noted that commercial tour jeeps are presenting safety problems, as well as noise disturbance, and that user conflicts and resource damage are resulting from the increase in unregulated use.

Response. The Department does not agree that use levels do not support the need to regulate. The agency needs to regulate these uses of National Forest System roads and trails to accomplish management objectives and to reduce impacts to National Forest System lands and resources. The demand for uses of National Forest System lands and resources has increased in recent years. Along with the increase in demand, there are growing conflicts among users and competing interests in the use of a limited land base and its resources. In some cases, the demand is so great that it is necessary to limit use. When an area becomes popular, uncontrolled use can result in land and resource impacts, user conflicts, or increased vehicular and pedestrian traffic, with associated safety concerns on National Forest System roads and trails. In several instances, the courts have ordered the Forest Service to regulate these uses when these conditions exist. Finally, site-or area-specific evaluation of use levels is not the subject of this rulemaking. Such evaluations are conducted through the forest planning or project decisionmaking process.

Comment. One respondent stated that intensive monitoring warranting this rule change is not evident, and another asserted that the proposed rule would increase the Forest Service's monitoring costs.

Response. The Department disagrees with these assertions. While organizers of recreation events or outfitters and guides may assert that their activities are confined only to a road or trail, often these activities include the use and occupancy of National Forest System lands adjacent to or well beyond the rights-of-way for those roads or trails. Determining whether a special use is confined to a road or trail right-of-way (that is, determining whether a special use authorization is necessary) requires intensive, case-specific monitoring. The final rule will eliminate the need for this monitoring by requiring a special use authorization for all six types of special uses, regardless of whether they occur on or off National Forest System roads and trails.

Monitoring a special use to determine whether it goes beyond the confines of a National Forest System road or trail, and therefore requires a special use authorization, should be distinguished from monitoring compliance with a special use authorization. There may be a modest increase in the costs of monitoring compliance with special use authorizations associated with the small increase in the number of authorizations that will be required pursuant to § 251.50(d) of the final rule. This modest increase in costs will be more than offset by the savings that will be realized by eliminating the need to monitor these six types of special uses when they occur primarily on a National Forest System road or trail, and by the other regulatory benefits achieved through the rulemaking that were previously identified.

Comment. One respondent stated that the issue of invalidated closure orders is local in scope and does not warrant a change in the national rule.

Response. The Department disagrees with this assertion. The need to regulate special uses on National Forest System roads and trails has surfaced in several Forest Service Regions. The issuance of a May 21, 1996, letter by the Deputy Chief of the National Forest System clarifying the current regulation shows that this issue has been a concern to the agency for many years at the national level. The 1996 Washington Office letter provides that special use authorizations for special uses occurring solely on National Forest System roads and trails may be required pursuant to a forest order issued under 36 CFR part 261, subpart B. However, courts have invalidated these orders.

Comment. One respondent stated that a recent U.S. General Accounting Office report shows off-road vehicles, such as snowmobiles, are permitted in nearly 50 percent of the areas managed by the Forest Service. Therefore, this respondent stated that the rule is needed to put in place clear, consistent terminology to govern treatment of forest roads.

Response. Regulation of off-highway vehicle use is beyond the scope of this rulemaking. However, the Department agrees that clear, consistent definitions for forest road or trail, National Forest System road, and National Forest System trail are needed for this rulemaking.

Comment. One respondent asserted that dual-sport motorcycle events do not have significant impacts on the environment.

Response. The final rule will require a special use authorization for the six types of special uses, including recreation events, occurring on National Forest System roads and trails to serve the purposes identified in the proposed rule, that is, (1) promoting fairness and consistency in authorizing uses; (2) obtaining market value for the use of National Forest System lands; (3) mitigating traffic and safety concerns; (4) managing impacts on National Forest System lands and resources; (5) avoiding and resolving conflicts among users and administrative activities; and (6) requiring insurance and indemnification of the United States. The potential for impacts on National Forest System resources associated with specific recreation events, such as dual-sport motorcycle activities, and the measures needed to mitigate such impacts, are identified through a site-specific environmental analysis in response to applications for such uses. The final rule does not change that process, which is set out in Forest Service Handbook (FSH) 1909.15.

Comment. One respondent stated that there would be an increase in do-it-yourself jeep touring in private or rented vehicles.

Response. The final rule will require a special use authorization for the six types of special uses occurring on National Forest System roads and trails. This requirement will serve the purposes identified in the proposed rule and outlined in the preceding response, that is, to promote fairness and consistency in authorizing uses, obtain market value for the use of National Forest System lands, manage impacts on lands and resources, avoid and resolve conflicts among users and administrative activities, and require insurance and indemnification of the United States. The statement that touring in private or rented vehicles will increase as a result of this requirement is speculative and thus cannot be addressed in this response.

Comment. One respondent stated that the Forest Service has not made a case that there are unacceptable impacts on roads resulting from the current rule.

Response. Mitigating adverse impacts on roads is not a rationale for this rulemaking. Rather, the final rule is intended to provide greater consistency in regulating six types of special uses of National Forest System lands, including instances in which those types of uses occur exclusively within the rights-of-way of National Forest System roads or trails.

Comment. One respondent stated that it is not clear how much damage is caused by commercial non-recreational activities and how much by commercial recreation groups, noncommercial groups, and individuals.

Response. As previously stated, addressing adverse impacts on roads and trails is not one of the reasons for this rulemaking. The Forest Service evaluates the physical impacts caused by the use of its roads and trails, user conflicts, and public safety through monitoring and site-specific environmental analyses. The agency protects its investment in these facilities through an operation and maintenance program. Additionally, the Forest Service has the authority to require those who use National Forest System roads for commercial purposes to maintain the roads commensurate with their use. Such authority is provided in the National Forest Roads and Trails Act of 1964 and is outside the scope of this rulemaking.

Comment. One respondent stated that if roads and trails are unsafe for motorized use or may be damaged by motorized use, they can be closed by order or regulation. Therefore, this regulation is unnecessary.

Response. The Department agrees that unsafe roads and trails may be closed by order or regulation, but disagrees that this authority renders the final rule unnecessary. This final rule will not regulate road use or maintenance, but will require the regulation of six types of special uses wherever they occur on National Forest System lands, including those within the rights-of-way of National Forest System roads and trails (but not of roads under the jurisdiction of a State, County, or local public road authority). Regulating special uses on National Forest System roads and trails will enable the agency to administer those uses more consistently; to obtain market value for those uses, where applicable; to manage impacts on National Forest System lands and resources; to eliminate or mitigate conflicts among users and administrative activities; and to require insurance and indemnification of the United States. It is not the purpose of this final rule to address roads and trails that are unsafe for motorized use or that may be damaged by motorized use.

Comment. One respondent stated that it is not likely that there is Government liability for the use of roads.

Response. One rationale for this rulemaking is to minimize the liability of the United States associated with special uses occurring on National Forest System roads and trails, not the liability of the United States associated with the general public's use of National Forest System roads. The Department believes that the United States has greater protection from liability when a special use occurring on National Forest System roads and trails is being conducted pursuant to a special use authorization that contains indemnification, insurance, and other liability provisions.

Comment. One respondent observed that the hazards posed by outfitters and guides stopping on the road to unload passengers or equipment would not be eliminated by the proposed rule change and should be addressed through issuance of orders.

Response. The Department disagrees with these comments and believes that a special use authorization and associated operating plan are the most effective way to address appropriate methods for outfitters and guides to operate on National Forest System roads. Moreover, Forest orders would not address the other purposes of this rulemaking.

Comment. Several respondents expressed concern that it is too much to ask private citizens to indemnify the United Sates and carry insurance because no one can assume the risk of being in a park. These respondents believed that insurance for informal events is unaffordable and requested that the Forest Service clarify what constitutes a group event requiring insurance.

Response. Regulations at § 251.56(d)(1) require all holders of special use authorizations to indemnify the United States for any and all injury, loss, or damage the United States may suffer as a result of claims, demands, losses, or judgments caused by the holder's use and occupancy. Accordingly, all special use authorizations contain indemnification provisions. Many special use authorizations also contain insurance provisions that effectuate the indemnification requirement. The Department disagrees that a requirement to secure liability insurance will be burdensome for recreation events in most situations.

There is no insurance requirement for noncommercial group uses. A noncommercial group use is a special use involving 75 or more people, where no entry or participation fee is charged and no goods or services are sold. If an entry or a participation fee is charged or goods or services are sold, generally insurance will be required.

Comment. Several respondents were concerned that the Forest Service cannot fit permit processing into its program of work and that the proposed rule would increase, not reduce, permit workload.

Response. The Department acknowledges that workload in processing special use applications is an issue and is conducting a separate rulemaking to implement its statutory authority to recover costs associated with processing special use applications.

The Department disagrees that the Forest Service will not be able to undertake the workload associated with this rule. Currently the Forest Service is administering 7,322 outfitting and guiding permits and 1,911 recreation event permits. During fiscal year 2002, the Forest Service issued 2,353 outfitting and guiding permits, 971 recreation event permits, 381 commercial filming permits, 315 still photography permits, and 642 noncommercial group use permits. The agency estimates that it will receive fewer than 50 additional outfitting and guiding special use applications and 40 additional recreation event applications annually as a result of this rule. It is unlikely that there will be much of an increase in applications for commercial filming or still photography because when these activities occur on National Forest System roads or trails, they generally involve the use of National Forest System lands outside the right-of-way for the roads or trails and therefore are already authorized under a special use authorization. There may be an increase in noncommercial group use applications as a result of this rule if organizers of recreation events, to avoid having to pay a land use fee and the cost of insurance, redesign their activities so that they are not charging entry or participation fees, thus making their activities qualify as noncommercial group uses. There will be no increase as a result of this rule in applications for special use authorizations issued under § 251.110(d) for a landowner's ingress or egress across National Forest System lands that requires travel on a National Forest System road that is not authorized for general public use, as the agency has been issuing these authorizations pursuant to 16 U.S.C. 3210(a).

Section 251.50(a). This section of the rule defines the type of activities on National Forest System lands that are classified as “special uses.”

Comment. One respondent stated that the word “unless” in the last sentence is confusing and may lead people to determine for themselves whether or not an authorization is required.

Response. The Department disagrees that the word “unless” in the last sentence needs to be changed. This language in the current rule has not been proposed for change. Section 251.50, paragraphs (c) through (e), enumerate the bases for waiver of the special use authorization requirement. Those proposing to use and occupy National Forest System lands are required under § 251.54(a) to contact the Forest Service in advance of the proposed use and occupancy, at which time applicable requirements can be discussed.

Section 251.50(b). This section of the rule prescribes authorization requirements during emergency situations.

Comment. One respondent stated that temporary occupancy of National Forest System lands in an emergency should not require a permit and suggested that “temporary” be defined as “lasting no longer than is necessitated by the nature and character of the emergency leading to the occupancy.” This respondent suggested striking the sentence, “Those temporarily occupying National Forest System lands without a special use authorization assume liability and must indemnify the United States for all injury, loss, or damage arising in connection with the temporary occupancy.”

Response. The Department agrees that temporary occupancy of National Forest System lands without a special use authorization is appropriate in limited circumstances and subject to specific conditions, as enumerated in the final rule. The Department disagrees that temporary occupancy should never require a special use authorization.

Under the final rule, temporary occupancy without a special use authorization is allowed when necessary for the protection of life and property in emergencies, as long as a special use authorization is applied for and obtained at the earliest opportunity, unless waived pursuant to § 251.50(c) through (e). Emergency situations often last longer than originally anticipated. Requiring a special use authorization allows the agency to specify terms and conditions of the occupancy, and to require changes in the temporary occupancy for conformance to the terms and conditions.

The Department disagrees that “temporary” needs to be defined, as the rule will require those temporarily occupying National Forest System lands to obtain a special use authorization at the earliest opportunity. Moreover, in the final rule, paragraph (b) of § 251.50 has been revised to add the phrase “when necessary” as a qualifier to temporary occupancy without an authorization; the phrase “is applied for and” has been inserted before “obtained at the earliest opportunity” to clarify that a proponent must apply for a special use authorization and that the authorized officer has the discretion to decide whether to allow the use to continue. Furthermore, the Department has added to paragraph (b) the sentence “The authorized officer may, pursuant to § 251.56 of this subpart, impose in that authorization such terms and conditions as are deemed necessary or appropriate and may require changes to the temporary occupancy to conform to those terms and conditions,” to clarify further that the use may be conditioned and that modifications may be required if needed.

The Department disagrees that the sentence imposing liability on the temporary occupant should be stricken. This sentence was added to the proposed rule to clarify that the temporary occupant has liability similar to that imposed on holders of a special use authorization under § 251.56(d)(1) of the current rule.

Section 251.50(c). This section of the rule describes the types of noncommercial recreational activities for which a special use authorization is not required and the exceptions to those activities.

Comment. One respondent suggested that bicycling should be added to the list of noncommercial recreational activities for which a special use authorization is not required. Another respondent suggested that use of motorized off-highway vehicles should be added to the list. Additionally, one respondent requested that the language “or similar recreational activity” in the current regulation be retained.

Response. The Department disagrees with adding additional activities to the list of noncommercial recreational activities for which a special use authorization is not required. The list is not intended to be all-inclusive, but rather to identify examples of common recreational activities. Furthermore, the inclusion of mechanized and motorized activities to this list could lead to confusion in areas where mechanized and motorized equipment is prohibited, such as wild sections of wild and scenic rivers and designated wilderness areas. The phrase “or similar recreational activity” does not appear in § 251.50(c) of the current regulations.

Comment. One respondent requested removal of § 251.50(c)(1) from the rule.

Response. The Department disagrees that paragraph (c)(1) in § 251.50 of the proposed rule should be removed. This paragraph requires a special use authorization for noncommercial group uses. Other than a nonsubstantive change in sentence structure, paragraph (c)(1) of the proposed and final rules is identical to paragraph (c)(3) in the current rule. Since the requirement for a special use authorization for noncommercial group use was not proposed for change, it is beyond the scope of this rulemaking.

Section 251.50(d). This section of the rule addresses the need for a special use authorization for special uses occurring on National Forest System roads and trails.

Comment. Several respondents said that the agency should require a permit for special uses conducted on National Forest System roads and trails.

Response. The Department agrees. Furthermore, the Department is making a technical change to confirm its preexisting authority to issue special use authorizations under Section 1323(a) of the Alaska National Interest Lands Conservation Act, 16 U.S.C. 3210(a), and 36 CFR 251.110(d). The Department is adding to the list in § 251.50(d)(1) of special uses occurring on National Forest System roads that require a special use authorization a landowner's ingress or egress across National Forest System lands that requires travel on a National Forest System road that is not authorized for general public use.

Comment. One respondent said that the growing impact of motorized recreation and regulation of large group activities, whether commercial or noncommercial, is a concern, and therefore it is important and necessary to require special use permits for activities involving National Forest System roads and trails.

Response. The Department agrees that it needs to be able to manage commercial and noncommercial special uses occurring on National Forest System roads and trails and has therefore pursued this rulemaking.

Comment. One respondent stated that the proposed rule would require permits for businesses that have not previously been subject to permitting.

Response. The final rule will require special use authorizations for some businesses that have not previously had to obtain them, such as businesses engaged in outfitting and guiding, commercial filming, and still photography exclusively within the right-of-way of a National Forest System road or trail. However, the Forest Service estimates that the number of these new authorizations will be small: 50 for outfitting and guiding, an increase of 2 percent over the current number of outfitting and guiding authorizations, and 40 for recreation events, an increase of 4 percent. The number of new commercial filming and still photography authorizations is likely to be fewer than 10 for both activities combined.

Comment. One respondent stated that the use of National Forest System trails must remain exempt from the requirement for a special use permit.

Response. The Department disagrees that special uses occurring on National Forest System trails should remain exempt from the special use authorization requirement. The Forest Service is eliminating the exemption for special uses conducted on National Forest System trails because there is a potential for resource damage on trails that may not be designed or constructed for the level or type of use that occurs. Furthermore, it is unlikely that there are commercial uses of National Forest System trails that should be exempted from the special use authorization requirement, as there are for many uses of National Forest System roads (such as the delivery of goods within and through the National Forests). Additionally, there have been several instances where courts have ordered the Forest Service to regulate special uses on trails.

Comment. One respondent requested that the Forest Service specify that use on a National Forest System trail does not require a special use permit unless it is commercial in nature. Several respondents stated that special use permits should not be required for noncommercial activities.

Response. Under the final rule, a noncommercial activity occurring on National Forest System trails that qualifies as a special use will require a special use authorization. One of these special uses is noncommercial group use. In addition, other noncommercial uses of a National Forest System trail could require a special use authorization in certain situations, such as still photography, or pursuant to an order issued under § 261.50 or a regulation issued under § 261.70. Under current law, a special use authorization is required for still photography and noncommercial group uses. Whether a special use authorization should be required for these activities is therefore beyond the scope of this rulemaking.

Comment. One respondent observed that special use permits should be required for commercial activities and/or recreation events. Another respondent stated that commercial users should pay a fee or tax.

Response. The final rule will require a special use authorization for recreation events and other commercial special uses occurring on National Forest System roads and trails. Most commercial special use authorizations require payment of a land use fee. The regulations governing land use fees are found at § 251.57. No changes to this section of the regulation were proposed as part of this rulemaking.

Comment. Several respondents asserted that a permit should not be required for public roads. They believe that if a road has been built, it should be open to all for free travel and suggested that this rule is a disturbing departure from the practice of all other government agencies, which allow free access on all public thoroughfares. Several respondents asserted that events conducted on forest roads and trails should not require fees because a gas tax and fees for off-highway vehicle stickers are already paid. One respondent stated that Forest Service roads have already been paid for. Another respondent stated that the proposed rule is just the first step to closing roads. Another stated that the requirement for permits for use of roads and trails runs counter to a Forest Service study that calls for reducing permit requirements for minor uses.

Response. The final rule will not require a special use authorization for use of public roads. Rather, the final rule will require a special use authorization for six types of special uses wherever they occur on National Forest System lands, including on National Forest System roads (but not on roads under the jurisdiction of a State, County, or local public road authority). This approach is consistent with that of other Federal land management agencies. For example, the Bureau of Land Management requires special recreation permits for commercial and competitive uses (43 CFR 8372.1).

The scope of this rulemaking does not include establishment of criteria for identifying which National Forest System roads should be closed or remain open.

The study being referred to, presumably, is the Forest Service's special uses reengineering study conducted in 1997. The study recommended that the Forest Service consider whether or not a special use authorization should be required for minor uses. Examples of minor uses mentioned in the study are mailboxes and private driveways. This recommendation is incorporated in paragraphs (e)(1) and (2) of § 251.50 in the final rule, which gives authorized officers the discretion to waive the requirement for a special use authorization for uses having nominal effects on National Forest System lands, resources, or programs, or for uses that are adequately regulated by another governmental entity.

However, the Department does not believe that the six special uses occurring on National Forest System roads and trails (outfitting and guiding, recreation events, noncommercial group uses, commercial filming, still photography, and a landowner's ingress or egress across National Forest System lands that requires travel on a National Forest System road that is not authorized for general public use) are minor uses. The 1997 reengineering study did not address situations where regulatory authority needs to be expanded, as is the case for uses occurring on National Forest System roads and trails that are addressed in the final rule.

Comment. One respondent stated that there should be no permit requirement if people merely travel along a road and do not stop.

Response. of the objectives of this rulemaking is to provide greater equity in the agency's management of six types of special uses wherever they occur on National Forest System lands, including on National Forest System roads and trails (but not on roads under the jurisdiction of a State, County, or local public road authority), even if those engaging in these types of special uses do not stop along those roads or trails.

Comment. Several respondents proposed clarifying that the special use authorization requirement for outfitters and guides to use roads would not mandate a new or additional authorization for operations conducted on National Forest System roads or trails for which outfitters and guides already have authorizations. Accordingly, this respondent proposed adding the following to § 251.50(d): “If a guiding or outfitting entity already holds a special use authorization for which use of National Forest System roads and trails is a necessary or integral part of the authorized activity, no additional or supplemental permit is needed.”

Response. The Department agrees that under the final rule, a new or supplemental special use authorization is not needed for outfitting and guiding conducted on a National Forest System road or trail that is already covered by a special use authorization or that may be covered by an amendment to an existing special use authorization. However, the Department disagrees that the language in paragraph (d)(1) should be revised. Training of special use permit administrators is a more appropriate way to achieve agency consistency in application of the final rule with respect to the issue identified in this comment.

Comment. Several respondents asserted that outfitters and guides should have to pay only a special use fee and not a road use fee. One respondent suggested clarifying that no special fee or assessment other than applicable special use permit fees would be assessed on outfitters and guides for the use of these roads.

Response. The authority in the final rule to regulate special uses occurring on National Forest System roads will not supplant Forest Service authority to regulate road use and to require commercial users to perform or pay for maintenance made necessary by their use of National Forest System roads under applicable laws, including the National Forest Roads and Trails Act of 1964 (FRTA). Rather, these two sets of authorities are complementary with respect to activities occurring on National Forest System roads. For example, a separate road use permit could be issued to an entity (pursuant to FRTA and corresponding direction in Forest Service Manual (FSM) 7731.16 and Forest Service Handbook (FSH) 7709.59, section 24) concerning the responsibilities for commensurate maintenance made necessary by the entity's commercial use of a road, coincidentally with a special use authorization issued under the final rule. Alternatively, the operation and use of the road for commercial purposes, including terms and conditions that address cost-sharing for road maintenance, could be incorporated into a special use authorization issued under the final rule, which also would include a citation of the appropriate statutory authorities concerning road maintenance requirements.

Comment. The Forest Service cannot require a permit for activities conducted totally off National Forest System lands.

Response. The Forest Service generally does not regulate uses occurring entirely off National Forest System lands. Special uses conducted on National Forest System roads and trails are on National Forest System lands.

Comment. Several respondents stated that it is not clear which roads will require a permit and that it is not clear how commercial bus drivers will know when they have crossed onto Bureau of Land Management, State, or county roads.

Response. First, this final rule will require a special use authorization for five types of special uses wherever they occur on National Forest System lands, including on National Forest System roads and trails (but not on roads under the jurisdiction of a State, County, or local public road authority).

Second, the Department disagrees that it will be difficult to determine whether a special use authorization is required under the final rule. To comply with the special use authorization requirement under the final rule, it will not be necessary to know where National Forest System roads end and roads under other jurisdictions begin. It will be necessary to know only whether a noncommercial group use, recreation event, outfitting and guiding activity, commercial filming activity, or still photography activity, as defined in § 251.51 of the final rule, will be conducted in whole or in part on a National Forest System road. If so, a special use authorization will be required. National Forest System roads are enumerated in the forest transportation atlas for each National Forest (§ 212.2) and are commonly posted along the roadway with Forest Service signs. In addition, National Forest maps distinguish National Forest System roads from other types of roads through the use of symbols and colors.

Comment. One respondent observed that the proposed rule narrows the exemption from the permit requirement for roads and eliminates the exemption from the permit requirement for trails, but noted that the Forest Service designates some facilities as trails that could be considered roads.

Response. Regulations for the classification and management of roads and trails are found at 36 CFR part 212 and are beyond the scope of this rulemaking.

Comment. Several respondents observed that §§ 212.6, 251.53, and 251.54 and part 261 distinguish between road use and land use. One respondent commented that the regulation should clarify when a particular use should be regulated by a special use permit and when it should be subject to a cost-share agreement. Another respondent stated that use of the road network should not require a permit.

Response. The Department agrees that road use and land use are distinct and separate. However, special uses are land uses regardless of whether they occur on or off roads and trails. Under this final rule, the Forest Service will require special use authorizations and the fees for those authorizations under statutes governing use and occupancy of National Forest System lands. Specifically, for occupancy and use of National Forest System lands, the Forest Service will require special use authorizations and charge land use fees for commercial filming and still photography under the Act of May 26, 2000, 16 U.S.C. 460 l -6d, for outfitting and guiding and recreation events under the Land and Water Conservation Fund Act, 16 U.S.C. 460 l -6a(c), and for a landowner's ingress or egress across National Forest System lands that requires travel on a National Forest System road that is not authorized for general public use under Section 1323(a) of the Alaska National Interest Lands Conservation Act, 16 U.S.C. 3210(a). Permits for noncommercial group uses will be issued under the agency's Organic Act, 16 U.S.C. 551. No fee is assessed for noncommercial group use permits. Further authority for assessing land use fees is found in the Independent Offices Appropriations Act, 31 U.S.C. 9701, Office of Management and Budget Circular No. A-25, and § 251.57(a). For most types of special uses, land use fees are assessed annually. For temporary uses of less than one year, the land use fee is commonly assessed upon issuance of the authorization. These fees are based upon the market value of the authorized use of National Forest System lands.

The use, operation, and maintenance of National Forest System roads are regulated under separate authority at 16 U.S.C. 532 et seq. and 36 CFR part 212. When appropriate, commercial users may be required to contribute to the cost of road maintenance and reconstruction. For holders of special use authorizations, contributing to these costs may be accomplished by adding appropriate clauses to their authorization or by issuing a separate road use permit. To clarify the distinction between road use permits and special use authorizations, the Department has added “sharing use of roads (part 212)” to the list of uses not considered special uses in § 251.50(a).

Comment. One respondent pointed out that FSM 2719 and 2734.4 do not require a permit for the commercial use of forest development roads unless closed by order.

Response. The Department agrees that there is a discrepancy between the final rule and FSM 2719, paragraph 7. In addition, the Department believes that the introductory text to FSM 2719 is unclear and that paragraph 6 of FSM 2719 needs to be revised to be more consistent with the corresponding regulation at 36 CFR 251.50(c) and to reflect that noncommercial group use and still photography are not exempted from the special use authorization requirement. Consequently, the introductory text and paragraphs 6 and 7 will be revised, a new paragraph 8 will be added, and current paragraphs 8, 9, and 10 will be renumbered. The revised text of FSM 2719 reads as follows:

“Consult with the Office of the General Counsel on a case-by-case basis to confirm that a special use authorization is not required for a proposed use in any of the following categories:

“6. Noncommercial recreational activities, such as camping, picnicking, hiking, fishing, hunting, horseback riding, and boating, as well as noncommercial activities involving the expression of views such as assemblies, meetings, demonstrations, and parades, except for noncommercial group use and still photography. Noncommercial recreational activities that are exempted from the requirement for a special use authorization may require payment of a prescribed fee for use or occupancy of sites having an established schedule of fees.

“7. Temporary occupancy of National Forest System lands without a special use authorization when necessary for the protection of life and property in emergencies, if a special use authorization is applied for and obtained at the earliest opportunity, unless waived pursuant to Title 36, Code of Federal Regulation, section 251.50, paragraphs (c) through (e)(3) (36 CFR 251.50(c) through (e)(3)).

“8. Travel on National Forest System roads, unless the travel is for the purpose of engaging in a noncommercial group use, outfitting and guiding, a recreation event, commercial filming, or still photography, as defined in 36 CFR 251.51, for a landowner's ingress or egress across National Forest System lands that requires travel on a National Forest System road that is not authorized for general public use, pursuant to 36 CFR 251.110(d), or authorization of that use is required by an order issued under 36 CFR 261.50 or by a regulation issued under 36 CFR 261.70.”

Additionally, the Department agrees that there is a discrepancy between the final rule and FSM 2734.4. Therefore, FSM 2734.4 will be revised to read as follows:

“Regulations at Title 36, Code of Federal Regulations, section 212.5(a)(1) (36 CFR 212.5(a)(1)) provide that traffic on National Forest System roads is subject to State laws where applicable, except when in conflict with the rules established under 36 CFR part 261. Regulations at 36 CFR 212.5(a)(2) enumerate specific traffic rules that apply on National Forest System roads unless different rules are established in 36 CFR part 261.

“Special use authorizations are not necessary for travel on National Forest System roads, unless:

“1. The travel is for the purpose of engaging in a noncommercial group use, outfitting and guiding, a recreation event, commercial filming, or still photography, as defined in 36 CFR 251.51, or for a landowner's ingress or egress across National Forest System lands that requires travel on a National Forest System road that is not authorized for general public use, pursuant to 36 CFR 251.110(d); or

“2. A special use authorization is required by an order issued under 36 CFR 261.50 or by a regulation issued under 36 CFR 261.70.

“Special use authorizations issued pursuant to 36 CFR part 251, subpart B, should be distinguished from road use permits that are issued pursuant to 16 U.S.C. 532 and 36 CFR part 212. Road use permits may be issued for such activities as construction, reconstruction, grading, or snow removal.

“Special use authorizations are required for special uses conducted on National Forest System trails. The use of motor vehicles is prohibited on the Appalachian Trail, Pacific Crest Trail, and other Congressionally designated trails pursuant to 16 U.S.C. 1246(c) and on trails within Congressionally designated wilderness areas pursuant to 36 CFR 261.16. Motor vehicle use in other areas may be prohibited or restricted pursuant to 36 CFR 261.12 and 261.55.”

Comment. One respondent indicated that land use fees should not be grouped with road use fees because they are determined differently. Additionally, this respondent stated that it is not clear how market value would be determined for land use and road use.

Response. The Department agrees that land use fees should not be grouped with cost-sharing for road maintenance, and emphasizes that they are separate types of assessments. Forest Service regulations already provide for assessment of land use fees for special use authorizations at § 251.57. These fees are charged under various authorities, and fee systems have been established for the various types of special uses in FSM 2710 and 2720. There is no fee for noncommercial group use. The authority for cost-sharing for road maintenance is independent of the authorities to assess land use fees and accordingly is implemented under separate regulations at 36 CFR part 212.

Comment. Respondents asserted that the proposed rule would limit public access, would limit access for seniors and low-or fixed-income visitors, would limit access for church groups and charities, would restrict access to National Forest System roads and trails, or would eliminate most group travel activities. Other respondents suggested that the proposed rule would end use of National Forest System roads and trails by organized dual-sport events.

Response. The Department disagrees that the final rule will limit access to National Forest System lands in any of the ways identified in these comments. Rather, the final rule merely requires a special use authorization for six types of special uses wherever they occur on National Forest System lands, including on National Forest System roads and trails (but not on roads under the jurisdiction of a State, County, or local public road authority).

Comment. One respondent stated that “use of” should not be changed to “travel on.”

Response. The Department disagrees with this comment. There are other activities associated with roads that are subject to the special use authorization requirement, such as construction of a road authorized under an easement. Substituting “travel on” for “use of” clarifies the agency's intent not to exempt these activities from the special use authorization requirement. Moreover, “travel on” more clearly describes the type of use of roads associated with noncommercial group use, outfitting and guiding, recreation events, commercial filming, still photography, and a landowner's ingress or egress across National Forest System lands that requires travel on a National Forest System road that is not authorized for general public use.

Comment. Several respondents requested that the Forest Service not include in paragraph (d)(1) one or more of the following: noncommercial group use, recreation events, and still photography.

Response. The Department does not agree that noncommercial group use, recreation events, and still photography conducted on National Forest System roads and trails should be exempted from the special use authorization requirement. Each of these uses has characteristics that warrant management wherever these uses occur in the National Forest System, including on National Forest System roads and trails (but not on roads under the jurisdiction of a State, County, or local public road authority). Regulating these uses when they are conducted on National Forest System roads and trails meets the objectives of this rulemaking.

Section § 251.50(e). This section of the rule provides additional criteria to the authorized officer for determining when a special use authorization is required.

Comment. Several respondents requested removal of the phrase “other than noncommercial group use.”

Response. The Department disagrees that the phrase “other than noncommercial group use” should be removed from the introductory text of paragraph (e). The Department does not intend the waiver provisions in paragraph (e) to apply to noncommercial group use. The criteria for waiver in paragraph (e) involve the exercise of discretion by the authorized officer. If these criteria were applied to noncommercial group use, they could render the permitting scheme for noncommercial group use unconstitutional. The criteria for requiring a special use permit for noncommercial group use are clearly articulated elsewhere in part 251, subpart B.

Comment. Several respondents stated that there are no guidelines for the criteria for determining when a special use authorization is needed.

Response. The Department agrees that there is some ambiguity as to the basis upon which a determination to waive the special use authorization requirement will be made under paragraph (e) of § 251.50. Consequently, the Department is proposing to add “based upon a review of a proposal” to the introductory text of paragraph (e), so that it reads as follows: “For proposed uses other than a noncommercial group use, a special use authorization is not required if, based upon a review of a proposal, the authorized officer determines that the proposed use has one or more of the following characteristics.” This revision will ensure that the authorized officer is provided sufficient information about the proposed activity to determine whether a special use authorization is required.

Comment. One respondent stated that the proposed rule at paragraph (e) conflicts with § 261.10(a), which prohibits constructing, placing, or maintaining any kind of road, trail, or facilities on National Forest System lands without a special use authorization, contract, or approved operating plan.

Response. The Department agrees that there is a conflict between paragraph (e) in the proposed rule and § 261.10(a). Therefore, § 261.10(a) is being modified to read as follows: “Constructing, placing, or maintaining any kind of road, trail, structure, fence, enclosure, communications equipment, or other improvement on National Forest System lands or facilities without a special use authorization, contract, or approved operating plan, unless such authorization, contract, or operating plan is waived pursuant to § 251.50(e) of this chapter.”

Comment. The permit requirement should not be waived. Rather a permit should be required so that the activity will be subject to the National Environmental Policy Act (NEPA). It is the Forest Service's responsibility to review all project proposals for environmental impacts.

Response. Under the Forest Service's special use regulations at 36 CFR 251.54(e)(6) and (g)(1) and (2), environmental analysis under NEPA is not required until a special use proposal has met two levels of screening criteria. Paragraph (e)(3) of § 251.50 applies to special use proposals at the initial level of screening.

The Department appreciates the importance of compliance with NEPA and stresses that paragraph (e) is not intended to circumvent NEPA in any way. Rather, paragraph (e) is intended to dispense with the requirement for a special use authorization in specifically identified circumstances based on a case-specific determination by the Forest Service that there is no programmatic need for the authorization.

Section 251.50(e)(1). This section of the rule provides for waiver of the special use authorization requirement for uses with nominal effects.

Comment. Several respondents stated that the term “nominal” is vague and that a definition should be provided. Another stated that “nominal effects” is unclear. Yet another stated that research scientists should determine whether effects are nominal.

Response. The Department disagrees that the phrase “nominal effects” needs to be defined in this regulation. There is adequate guidance on effects in the Forest Service's Environmental Policy and Procedures Handbook (FSH 1909.15) and Forest Service Manual (FSM) 1950.

Comment. One respondent proposed that ornithological research be exempt from the permit requirement.

Response. The Department disagrees that ornithological research should be categorically exempt from the special use authorization requirement. Whether a specific ornithological research project is exempt from the special use authorization requirement would be determined based on the characteristics of that proposal in accordance with § 251.50(e) of the final rule.

Comment. One respondent stated that the phrase “necessary to establish terms and conditions in a special use authorization * * * to avoid conflict with National Forest System programs” most likely would be interpreted by the Forest Service to include any permitted outfitting and guiding operation, so that no proposed outfitting and guiding use would ever qualify for an exemption from the authorization requirement if it is perceived to be in competition with the activities of a permitted outfitter and guide.

Response. The Department disagrees with this characterization of how the Forest Service will interpret § 251.50(e)(1) of the final rule. Generally, outfitting and guiding will not qualify for an exemption from the special use authorization requirement under paragraph (e)(1) because an outfitting and guiding use generally has more than nominal effects on National Forest System lands, resources, and programs. For purposes of paragraph (e)(1), an example of the need to establish terms and conditions in a special use authorization to avoid conflict with agency programs or operations is when a proposed use would conflict with other uses or administrative use by the Forest Service.

Section 251.50(e)(2). This section of the rule provides for waiver of the special use authorization requirement for uses that are adequately regulated by a State agency or other Federal agency.

Comment. Several respondents stated that the Forest Service should not waive the permit requirement for activities that are regulated by State or other Federal agencies.

Response. The Department disagrees with this comment. In 1997 the Forest Service completed a reengineering study of its special uses program that recommended managing special uses in a more businesslike manner. The study found that authorizations are being issued for some special uses that are being regulated by other agencies in a manner that adequately protects National Forest System lands and resources and that avoids conflict with National Forest System programs or operations. The final rule will provide that if an authorized officer concludes that a use is being regulated by another Federal or State agency in a manner that adequately addresses National Forest System lands, resources, and management concerns, the authorized officer may waive the requirement for a special use authorization.

Comment. One respondent suggested adding “or other Forest Service authorization or use agreement” to the items that do not require a permit. Another suggested exempting from the permit requirement operations like grooming of snowmobile trails that are covered by an agreement.

Response. The Department believes that it would be unnecessary to add special uses that are already covered under a special use authorization to the provision in paragraph (e)(2) waiving the special use authorization requirement. Rather, the Department will emphasize to special use administrators that redundancy in permitting is not appropriate. It would not be appropriate to add “use agreement” to the waiver provision in paragraph (e)(2) because agreements, such as memoranda of understanding or memoranda of agreement, do not constitute special use authorizations. It also would not be appropriate to add grooming of snowmobile trails to the provision in paragraph (e)(2) because grooming of snowmobile trails is not always regulated by another governmental entity and it is an activity that the Forest Service needs to regulate. This particular activity can be authorized in one of many ways. When the snowmobile trails to be groomed coincide with alignment of a National Forest System road, the activity could be authorized by a road use permit. More commonly, the activity is authorized by either a special use authorization issued specifically for the grooming activity, or by adding provisions to a special use authorization (or its operating plan) for another type of special use when, for example, the grooming activities are ancillary to the operation of a larger special use (such as a ski area or winter resort).

Section 251.50(e)(3). This section of the rule provides for waiver of the special use authorization requirement for routine operation or maintenance activities within the scope of an R.S. 2477 or R.S. 2339 right-of-way or within the express scope of a documented linear right-of-way that is not located in a Congressionally designated wilderness area.

Comment. Several respondents stated that claimed R.S. 2477 rights-of-way have been proven not to exist and that the existence of such a right-of-way is something a field official may be unable to determine without legal research. These respondents believed that claimants may assert rights that cannot be verified and that there is no requirement in the proposed rule that the claimed right-of-way be proven to exist on the ground before bulldozing can occur. One respondent expressed support for paragraph (e)(3) in the proposed rule because it would streamline the means to maintain R.S. 2477 rights-of-way. Several respondents stated that the proposed rule failed to define “within the scope” of an R.S. 2477 right-of-way and that the proposed rule did not specify the standards to be used to determine what is within the scope of an R.S. 2477 right-of-way.

Many respondents stated that it was not clear how the Forest Service would determine what constitutes a valid property right. They believed that the proposed rule fails to define the terms “outstanding statutory right” and “outstanding property right,” and that the latter term could refer to a property right that has not been finally adjudicated or decided. Several respondents indicated that it is not clear whether “within the scope” refers to a clearly articulated activity specified within a “valid reserved, granted, or outstanding property right, such as a right-of-way, easement, or reservation,” or whether the definition allows for a vague, general set of activities not directly specified in a property right.

One respondent expressed concern with the maintenance and improvement of rights-of-way in Congressionally designated wilderness and inventoried roadless areas and on other important public lands, such as national wild and scenic river corridors.

Another respondent stated that it is unclear how the Forest Service could be cognizant of a right-of-way holder's activities if the Forest Service concludes that an authorization is generally not required. Another stated that waiving the requirement for a special use authorization for certain operation or maintenance activities associated with property rights constitutes a give-away to industry. Several respondents believed that authorized officers should not be empowered to make a decision pertaining to what constitutes a routine operation or maintenance activity within the scope of a valid reserved or outstanding property right. Many respondents believed that the Forest Service should continue to require a special use permit for maintenance activities conducted within the scope of rights-of-way to protect land, streams, and wildlife habitat. These respondents believed that decisions to authorize operation or maintenance of R.S. 2477 rights-of-way should be subjected to public notice and comment pursuant to NEPA and expressed opposition to the exemption from the permit requirement in paragraph (e)(3).

Many respondents believed that the proposed rule fails to delineate or define what would constitute operation or maintenance, as opposed to construction, and stated that the proposed rule provides no guidance on or explanation of “routine.” One respondent stated that part 212 defines maintenance, but that these rules generally apply only to Forest Service numbered routes that are considered part of the Forest Service's road system, and thus do not apply to R.S. 2477 rights-of-way. Another respondent asked whether property right holders would be required to propose activities that are considered to be routine operation or maintenance within the scope of a right-of-way, or just those that are considered to be other than routine operation or maintenance or outside the scope of an existing right.

Response. The Department wishes to clarify that the criteria for determining whether an R.S. 2477 right-of-way has been established are beyond the scope of this rulemaking. Rather, only R.S. 2477 rights-of way that have been adjudicated by a court or otherwise recognized by the Forest Service will be subject to the waiver provision in paragraph (e)(3).

The Department agrees that clarification of paragraph (e)(3) is needed. The word “right” in the proposed rule has been replaced with “right-of-way” in the final rule to describe more clearly the nature of R.S. 2477 and R.S. 2339 rights-of-way. Additionally, the final rule adds the phrase “routine operation or maintenance within the express scope of a documented linear right-or-way” and adds a definition for linear right-of-way to delineate more clearly those activities that may be exempt from the special use authorization requirement. The word “outstanding” is superfluous and has been removed. Finally, the Department agrees that property interests located within Congressionally designated wilderness areas require closer scrutiny and that activities conducted in exercising those property interests should not be included in the exemption from the requirement for a special use authorization pursuant to paragraph (e)(3) of the final rule. Therefore, the phrase “the proposed use is not situated in a Congressionally designated wilderness area” has been added in the final rule to limit the waiver to those R.S. 2477 and R.S. 2339 rights-of-way and documented linear rights-of-way that are not located in a Congressionally designated wilderness area.

Consequently, in the final rule, § 251.50(e)(3) reads as follows: “The proposed use is not situated in a Congressionally designated wilderness area, and is a routine operation or maintenance activity within the scope of a statutory right-of-way for a highway pursuant to R.S. 2477 (43 U.S.C. 932, repealed Oct. 21, 1976) or for a ditch or canal pursuant to R.S. 2339 (43 U.S.C. 661, as amended), or the proposed use is a routine operation or maintenance activity within the express scope of a documented linear right-of-way.”

The Department disagrees that a special use authorization should be required for routine operation or maintenance activities within the scope of these rights-of-way. Paragraph (e)(3) of the final rule identifies uses for which the special use authorization requirement may be waived. Under paragraph (e)(3) of the final rule, routine operation or maintenance activities that are not in a Congressionally designated wilderness area and that are within the scope of an R.S. 2477 or R.S. 2339 right-of-way or within the express scope of a documented linear right-of-way will not be subject to the requirement for a special use authorization. The Department has determined that waiving the authorization requirement in this context not only will improve management efficiency, but also will demonstrate recognition of those rights and privileges that have been granted by statute under R.S. 2477 or R.S. 2339 or that are exercised under easements, deeds, or reservations for linear rights-of-way.

The Department does not believe that the activities covered by paragraph (e)(3) should be subject to public notice and comment in connection with NEPA compliance. These types of activities are typically categorically excluded from documentation in an environmental assessment or environmental impact statement under FSH 1909.15, chapter 30.

The Department agrees that under paragraph (e)(3) of the proposed rule there was some ambiguity as to whether right-of-way holders are required to propose for the authorized officer's review activities that are considered to be routine operation or maintenance within the scope of a right-of-way, or just those that are considered to be other than routine operation or maintenance or outside the scope of a right-of-way. Both sets of activities must be proposed for the authorized officer's review. The Forest Service, not the right-of-way holder or applicant, has the authority to determine whether a special use authorization is required. To underscore this point, the Department is adding “based upon a review of a proposal” to the introductory text of § 251.50(e), so that it reads as follows: “For proposed uses other than a noncommercial group use, a special use authorization is not required if, based upon a review of a proposal, the authorized officer determines that the proposed use has one or more of the following characteristics” (the subsequent paragraphs (e)(1) through (e)(3) set out the characteristics). This revision makes it explicit that authority to determine whether a special use authorization is necessary continues to rest with the Forest Service. In addition, the revision ensures that the authorized officer is provided sufficient information about the proposed activity to determine whether a special use authorization is required.

The Department agrees that clarification of “routine operation or maintenance” is needed, but disagrees that this clarification needs to be in the final rule. Therefore, the agency is adding to FSM 2719, paragraph 10, examples of what constitutes routine operation or maintenance within the scope of an R.S. 2477 or R.S. 2339 right-of-way or within the express scope of a documented linear right-of-way. Paragraph 10 of FSM 2719 has been renumbered to fit the sequence of previously referenced revisions to this section of the FSM made necessary by this rulemaking and has been revised to read as follows:

“10. Routine Operation and Maintenance Activities Within the Scope of a Statutory Right-of-Way or Documented Linear Right-of-Way. Routine operation and maintenance activities within the scope of a statutory right-of-way for a highway pursuant to R.S. 2477 (43 U.S.C. 932, repealed Oct. 21, 1976) or for a ditch or canal pursuant to R.S. 2339 (43 U.S.C. 661, as amended), or routine operation or maintenance activities within the express scope of a documented linear right-of-way, when these uses do not occur within a Congressionally designated wilderness area. A formal grant or document is not required under these authorities. Observe the boundaries that existed at the time the grant was accepted, unless State law existing at the time of acceptance provides for a different width.

“a. Routine Operation or Maintenance Activities Within the Scope of R.S. 2477 Right-of-Way. Routine operation or maintenance activities within the scope of a statutory right-of-way for a highway pursuant to R.S. 2477 include a variety of activities to preserve the integrity and safe use of the road, such as surface rock replacement; grading; snow removal; seal coats and asphalt overlays; culvert and bridge replacements; removal of rock and landslides from the road prism; repair of washouts and other damage from erosion; and the installation and maintenance of signs and other devices for traffic control, information, and safety.

“b. Routine Operation or Maintenance Activities Within the Scope of R.S. 2339 Right-of-Way. Routine operation or maintenance activities within the scope of a statutory right for a ditch or canal pursuant to R.S. 2339 include such activities as recurrent removal and deposition of silt and sediment from fish screens, diversion structures, canals, weirs, and ditches; armoring of dams, ditches, or canals with rocks or other protective materials to prevent or remedy damage from erosion, avalanches, or landslides; lining of ditches to prevent or repair leaks and seepage; minor cutting or pruning of vegetation within or immediately adjacent to a water development facility that might be impeding or precluding the storage, diversion, or free-flowing transmission of water; and recurrent adjustment, opening, and closing of diversions, headgates, valves, and other devices necessary to control the timing and volume of water flows consistent with the use of the water being stored, diverted, and transmitted within the right-of-way.

“c. Activities That Require a Special Use Authorization. A special use authorization is required for any activities other than routine operation or maintenance, such as construction or reconstruction, that are within the scope of an R.S. 2477 or R.S. 2339 right-of-way or within the express scope of a documented linear right-of-way. A special use authorization is also required for any activities (including operation, maintenance, construction, or reconstruction) that are outside the scope of an R.S. 2477 or R.S. 2339 right-of-way or outside the express scope of a documented linear right-of-way.”

Section 251.51 Definitions. This section of the rule defines technical terms contained in the rule.

Commercial filming. No comments were received on the definition of commercial filming.

Forest road or trail. No comments were received on this definition in part 251. However, extensive comments were received on this definition in part 261. The response to these comments appears in the following discussion of comments under part 261—Prohibitions at § 261.2. This definition has not been changed in the final rule.

Guiding. Comment. One respondent stated that the definition of guiding is too broad. Another stated that an exemption should be made for guiding by noncommercial, nonprofit organizations. Another commented that guiding should not include direction, instruction, or interpretation by nonprofit organizations in exchange for a donation to that organization.

Response. The Department disagrees that the definition of guiding in this rule is too broad. The definition of guiding in this rule is the same as the definition of guiding in FSH 2709.11, section 43.53c, which was published in the Federal Register for public notice and comment (55 FR 14445, April 18, 1990; 60 FR 30830, June 12, 1995).

The Department also disagrees that an exemption to the definition for guiding should be made for nonprofit entities. Nonprofit entities engaging in outfitting and guiding activities as defined by the final rule and agency policy are considered to be outfitters and guides. The policy governing administration of outfitting and guiding permits specifically refers to institutional and semi-public outfitting and guiding (FSH 2709.11, sec. 41.53l). The land use fee policy for outfitters and guides specifically refers to fees for nonprofit organizations and educational institutions (FSH 2709.11, sec. 37.21j and 37.21k). Both of these policies were published in the Federal Register for public notice and comment (55 FR 14445, April 18, 1990; 60 FR 30830, June 12, 1995).

The Department also disagrees that an exemption to the definition for guiding should be made for noncommercial group activities. Noncommercial group activities with fewer than 75 people do not require a special use authorization. Noncommercial group activities involving 75 or more people require a noncommercial group use permit.

National Forest System road. Comment. One respondent stated that the terms “National Forest System road” and “National Forest System trail” are not defined in 36 CFR part 212. Another stated that definitions for these terms must be deduced from § 212.20.

Response. The Department concurs that “National Forest System road” and “National Forest System trail” are not defined in 36 CFR part 212. They are currently defined in § 261.2. The final rule modifies the definitions for National Forest System road and National Forest System trail in § 261.2 to make them consistent with 23 U.S.C. 101. National Forest System road is also defined in FSM 7705.

Noncommercial Use or Activity and Group Use. Comment. Several respondents stated that the Forest Service should clearly define noncommercial group use. Another stated that the two separate definitions for noncommercial use or activity and group use should be combined. One respondent commented that 50 to 100 riders should not trigger the permit requirement. Another stated that noncommercial group use should be defined as “an organized and publicized activity expected to attract 100 or more persons and the use of National Forest System lands, resources, or facilities, except where only National Forest System roads and/or trails will be used, with no minor and incidental use of National Forest System lands, resources, and/or facilities.” One respondent stated that the definition for group use should be removed from the current regulation, and that group use should be revised to clarify that it means 75 or more people at one time. Another stated that noncommercial group use is targeted. One respondent recommended changing the definition for commercial use or activity to “any use or activity on National Forest System lands (a) where an entry or participation fee is charged, except where such entry or participation fee is less than $5.00 per user, or (b) where the primary purpose is the sale of a good or service, and in either case, regardless of whether the use or activity is intended to produce a profit.”

Response. The definitions for commercial use or activity, group use, and noncommercial use or activity were not proposed for change in this rulemaking and are therefore beyond its scope. The definition for group use has been included in the regulation at § 251.51 since 1995 and has been very successfully applied in the context of the special uses program. This definition is a key component of the special use authorization requirement for noncommercial group uses. The Department disagrees that noncommercial group use should be defined in such a way as to exclude activities that occur on National Forest System roads or trails. For the reasons previously identified for revising § 251.50(d), the Department believes that regulating special uses occurring on National Forest System roads and trails, including noncommercial group uses, is appropriate. Noncommercial group use is not targeted in any way in the final rule. To the contrary, for purposes of the special use authorization requirement in the final rule, noncommercial group use is treated equally with outfitting and guiding, commercial filming, still photography, and recreation event special uses that are conducted on National Forest System roads or trails. The definition for commercial use or activity is beyond the scope of this rulemaking and does not warrant any revision.

Outfitting. No comments were received on the definition of outfitting.

Recreation event. Comment. One respondent stated that the definition for recreation event should be revised to exclude events when entry fees only recover costs. One respondent stated that donations should not be considered an entry fee. Another stated that recreation events should not require a permit. Another commented that a permit should not be required for non-speed competitive events, but that a permit should be required for speed competitive events, unless only one person is participating. This respondent also stated that marking a course should require a permit.

Response. The Department disagrees that the definition for recreation event should exempt events that limit entry fees to amounts that only recover event costs. The Department also disagrees that donations should not be considered an entry fee. The definition for recreation event tracks the definition for commercial use or activity in the current regulations and is based on current agency policy and practice. The definition in the current regulations does not exempt certain types of events or provide that donations should not be considered entry fees. In addition, exempting events when entry fees only recover event costs or when a donation, rather than an entry fee, is collected would require the Forest Service to engage in an intensive, fact-specific inquiry to determine whether a recreation event requires a special use authorization.

Comment. One respondent believed that under the proposed rule, any recreational activity for which an entry or participation fee is charged would be treated as commercial and would require a permit. Another stated that unorganized groups are not commercial and should not be treated as commercial. Another stated that the definition for commercial use should be revised to exclude events conducted by nonprofits. Several respondents stated that permits and fees should not apply to certain nonprofit and noncommercial organizations. A respondent commented that volunteer work should be excluded from a permit requirement. Another stated that event preparation often provides the Forest Service with valuable volunteer work such as trail maintenance. Another noted that organized clubs pick up trash, clear trails, and exhibit care for the land and resources because they are gratified to have the opportunity to use National Forest System lands. One respondent stated that a fee should not be charged for an organizational ride. Another respondent asserted that special use permits and fees should not be required for recreation events when there is no fee-based requirement for attendance. One respondent commented that if a group with 75 or more bikes wants to ride when no fee is to be charged and no money is to be raised, then no permit should be required. One respondent stated that permits and permit fees will create a hardship for nonprofit recreation groups. Another respondent commented that there should be an exemption for minimal-impact users such as recreational outfitters, clubs, and groups like the girl scouts, the YWCA, and seniors.

Response. A recreation event requires a special use authorization. In the final rule, a recreation event is any recreation activity conducted on National Forest System lands for which an entry or participation fee is charged, such as animal, vehicle, or boat races; dog trials; fishing contests; rodeos; adventure games; and fairs. Under this definition, the fee is being charged by a person or entity other than the Forest Service for participation in an organized event. An entry or participation fee for an organized event should be distinguished from a fee charged to the public by the Forest Service for admission to or use of National Forest System lands for recreational purposes.

The Department disagrees that activities conducted by unorganized or nonprofit groups can never be commercial. Under the current regulations at § 251.51, commercial use or activity is defined as “any use or activity on National Forest System lands (a) where an entry or participation fee is charged, or (b) where the primary purpose is the sale of a good or service, and in either case, regardless of whether the use or activity is intended to produce a profit.” Thus, under the final rule, any recreation activity conducted on National Forest System lands for which an entry or participation fee is charged is commercial and requires a special use authorization, regardless of whether the activity is conducted by an organized or unorganized group or by a for-profit or nonprofit entity.

Whether land use fees should be charged for particular special use authorizations is beyond the scope of this rulemaking and is already addressed in § 251.57 and agency policy. Section 251.57(b)(2) authorizes waiver, subject to certain conditions, of all or part of the land use fee for a special use authorization for nonprofit entities engaged in a public or semi-public activity to further public health, safety, or welfare. This provision recognizes and encourages the contributions these entities make to National Forest management.

Volunteers working under the supervision of the Forest Service do not require a special use authorization. Groups of fewer than 75 volunteers organized by an individual or entity other than the Forest Service to perform environmental stewardship on National Forest System lands do not require a special use authorization. If such a group has 75 or more volunteers, it would require a noncommercial group use permit. However, fees are not charged for noncommercial group use permits. If an event is organized involving 75 or more people and there is no entry or participation fee and the primary purpose is not the sale of a good or service, the event would be noncommercial, but would still require a permit as a noncommercial group use.

The Department disagrees that special use authorizations and special use authorization fees will create a hardship for nonprofit recreation groups, many of whom already hold a special use authorization. The Department does not want to create an exemption from the special use authorization requirement for minimal-impact users. Applying such an exemption would require the Forest Service to engage in a subjective, fact-intensive inquiry as to what constitutes minimal impact. In addition, the special use authorization requirement serves other purposes besides addressing resource impacts.

Comment. One respondent stated that there should be two categories of permits: a one-time event permit and a yearly tour operator permit.

Response. The definitions in the final rule and current agency policy distinguish between one-time, short-term recreation events and noncommercial group uses versus ongoing, long-term outfitting and guiding activities. The Forest Service has the authority to issue special use authorizations for either a one-time event or for yearlong or ongoing uses and occupancies. That authority is outside the scope of this rulemaking and is not affected by this final rule.

Still photography. Comment. Respondents observed that still photography should not require a permit, that the proposed rule appears to extend the permit requirement to noncommercial photography, and that the rule does not differentiate “models or props” from picnic tables, volleyball nets, teepees, and campsite decorations that might show up in a photograph. They suggested that there is no apparent Governmental interest in regulating commercial filming and still photography other than for large-scale commercial filming and still photography productions.

Response. The Department disagrees that the definition for still photography should be modified. The Act of May 26, 2000 (16 U.S.C. 460 l -6d) specifies the types of still photography that require a special use authorization on National Forest System lands. The agency's definition of still photography in the final rule is consistent with the provisions of the act and agency policy. Pursuant to 16 U.S.C. 460 l -6d and FSM Interim Directive 2720-2003-1, National Forest visitors and recreational, professional, and amateur photographers do not need a special use authorization for still photography unless the activity (1) uses models, sets, or props that are not part of the site's natural or cultural resources or administrative facilities; (2) takes place where members of the public generally are not allowed; or (3) takes place at a location where additional administrative costs are likely. Definitions of models and props also are included in FSM Interim Directive 2720-2003-1.

The determination of when a special use authorization is required under 16 U.S.C. 460 l -6d and the definition for still photography in the final rule do not depend on whether still photography is commercial or noncommercial. Thus, a noncommercial activity that meets the criteria for still photography in 16 U.S.C. 460 l -6d and § 251.51 requires a special use authorization. This requirement, however, conflicts with the exemption from the special use authorization requirement for noncommercial recreation activities in § 251.50(c). To make § 251.50(c) consistent with 16 U.S.C. 460 l -6d and the definition for still photography in § 251.51, the Department is adding a new paragraph (2) to § 251.50(c) to read as follows: “(2) The proposed use is still photography as defined in § 251.51 of this subpart.”

Section 261.2. This section of the rule defines technical terms contained in the rule.

Forest road or trail. Comment. One respondent stated that the definition of “forest road or trail” should be revised to read, “a road or trail wholly or partly within or adjacent to and serving the National Forest System, and which is necessary for the protection, administration, and utilization of the National Forest System and the use and development of its resources, except those roads or trails in which another entity holds a superior right-of-way, to which roads or trails the Forest Service makes no claim of title or jurisdiction.”

Response. The Department disagrees with changing the definition for forest road or trail in the final rule because that definition is taken verbatim from 23 U.S.C. 101.

National Forest System road. Comment. One respondent suggested that the definition of National Forest System road should be revised to read, “a road under the jurisdiction of the Forest Service that is listed in the appropriate forest transportation atlas.”

Response. The Department disagrees that this change should be made. The Department has modified the definition for National Forest System road in § 261.2 to make it consistent with the definition for forest development road in 23 U.S.C. 101. The final rule does not remove the requirement that a National Forest System road or trail be listed in the appropriate forest transportation atlas. This requirement is set out in § 212.2.

Comment. One respondent stated that the new definitions for National Forest System road and National Forest System trail blur the distinction among an area, a National Forest System road, and a National Forest System trail that is critical for law enforcement purposes. Another respondent stated that it is not clear how a road will be deemed “necessary.”

Response. The Department disagrees that the definitions for National Forest System road and National Forest System trail blur the distinction among an area, a National Forest System road, and a National Forest System trail. The definitions of a National Forest System road and a National Forest System trail in the final rule will simplify the determination of what constitutes a National Forest System road or trail. To qualify as a National Forest System road or trail, a forest road or trail only needs to fall under the jurisdiction of the Forest Service. No determination of the necessity of the road or trail or its inclusion in a forest transportation atlas is required.

National Forest System trail. Comment. One respondent objected to replacing “forest development trail” in § 261.55 with “National Forest System trail.” This respondent stated that the term “National Forest System trail” is neither used nor defined in 23 U.S.C. 101 and, therefore, replacing “forest development trail” with “National Forest System trail” does not bring about conformance with 23 U.S.C. 101.

Response. “National Forest System trail” is currently defined in § 261.2. The term “National Forest System trail” in the final rule is intended to be synonymous with the term “forest development trail” in 23 U.S.C. 101. Therefore, the Department has modified the definition for National Forest System trail in the final rule to make it consistent with the definition for forest development trail in 23 U.S.C. 101. The Department concurs that this change in terminology is not reflected in Forest Service policy. FSM 2350 is currently being revised, and during the course of those revisions, “forest development trail” will be changed to “National Forest System trail.”

Comment. One respondent stated that the definition of National Forest System trail should be revised to read, “a trail under the jurisdiction of the Forest Service that is listed in the appropriate forest transportation atlas,” and observed that the revised definition removes the requirement that a National Forest System trail be listed in the appropriate forest transportation atlas.

Response. The Department disagrees that this change should be made. The Department has modified the definition for National Forest System trail in § 261.2 to make it consistent with the definition for forest development trail in 23 U.S.C. 101. The final rule does not remove the requirement that a National Forest System trail be listed in the appropriate forest transportation atlas. This requirement is set out in § 212.2.

Comment. One respondent observed that when read in conjunction with the definition of forest road or trail, the proposed definition of National Forest System trail would define a National Forest System trail as a trail under the jurisdiction of the Forest Service wholly or partly within or adjacent to and serving the National Forest System, and which is necessary for the protection, administration, and utilization of the National Forest System and the use and development of its resources. This respondent objected to the proposed definition of National Forest System trail because this respondent believed that it could significantly reduce the number of forest trails that would be subject to special use regulation. This respondent noted that pioneered trails and other trails not considered “necessary for the protection, administration, and utilization of the National Forest System and the use and development of its resources” would not be included in the new definition and that therefore special uses on pioneered trails would not be subject to the special use authorization requirement under the proposed regulation.

Response. The terms “forest development trail” and “National Forest System trail” are synonymous. The final rule defines “National Forest System trail” as a forest trail under the jurisdiction of the Forest Service.

The Department disagrees that the definition for National Forest System trail in the final rule creates an exemption from the permit requirement for special uses on pioneered and other trails that are not National Forest System trails. The final rule will remove National Forest System trails from the exemption from the special use authorization requirement in § 251.50(d). Special uses on National Forest System lands, including special uses conducted on National Forest System and non-National Forest System trails, will require a special use authorization under the final rule. Therefore, it is immaterial whether pioneered trails are National Forest System trails for purposes of applicability of the permit requirement in the final rule. A special use occurring on a pioneered trail will require a special use permit.

Section 261.55. This section of the rule changes “forest development trail” to “National Forest System trail” in the heading and introductory text.

No comments were received on this section.

No comments were received on this part.

Comment. Two respondents asserted that the agency did not follow applicable environmental policy and procedures for this rulemaking and that scoping for this rulemaking was inadequate. One respondent stated that there is no categorical exclusion that applies to this rulemaking and that extraordinary circumstances are implicated by this rulemaking.

Response. The Department has determined that this final rule falls within the category of actions excluded from documentation in an environmental assessment or environmental impact statement (FSH 1909.15, section 31.1b). This provision excludes from documentation in an environmental assessment or environmental impact statement rules, regulations, or policies to establish Service-wide administrative procedures, program processes, or instructions. No extraordinary circumstances enumerated in the Forest Service NEPA procedures exist in conjunction with this rulemaking that would preclude reliance on this categorical exclusion. Issuance of a special use authorization for a specific use as provided in this rule, however, may trigger the need for documentation of environmental analysis on a case-by-case basis under NEPA.

Comment. Several respondents asserted that the proposed rule would have significant economic impacts on a substantial number of small businesses and that its economic effects would exceed the $100 million threshold for determining that effects are insignificant under the Regulatory Flexibility Act.

Response. Section 251.50(d) of the final rule requires a special use authorization and land use fee for special uses conducted on National Forest System roads and trails. The net regulatory effect of this section of the final rule is the difference between the current special uses program and the special uses program under the final rule. The following is a breakdown of the revenue generated nationally by the special uses affected by § 251.50(d) of the final rule:

The Forest Service estimates that there will be a 2 percent increase in the number of special use authorizations for outfitting and guiding and a 4 percent increase in the number of authorizations for recreation events issued as a result of the final rule. It is not likely that there will be much of an increase in the number of commercial filming, still photography, or noncommercial group use special use authorizations. There may be an increase in special use authorizations for noncommercial group use if organizers of recreation events, to avoid having to pay a land use fee and the cost of insurance, redesign their activities so that they are not charging entry or participation fees, thus making their activities qualify as noncommercial group uses. No land use fee is charged for noncommercial group use. The estimated increase in the number of authorizations and their associated land use fees (which includes authorizations issued to and fees paid by all individuals and entities, not just small businesses) would not have significant economic impacts on a substantial number of small businesses, nor does the increase in authorizations and fees rise to the $100 million threshold for determining whether a regulation is significant.

Moreover, the comment fails to address benefits associated with this rulemaking. The final rule levels the playing field for special uses by closing the regulatory gap for uses conducted entirely on National Forest System roads and trails. In addition, there will be a decrease in impacts on small businesses under the final rule. Section 251.50(e) of the final rule provides the authorized officer with the discretion, under specific circumstances, to waive the requirement for a special use authorization, thereby decreasing the economic impact on small businesses to the extent that they otherwise would have had to obtain an authorization and pay a land use fee for certain types of special uses.

The Department has prepared an analysis of the economic effects of this rulemaking, which is included in the rulemaking record.

Comment. One respondent stated that the proposed rule effects a taking of small business.

Response. There is no taking, either express or implied, of any property rights or any other constitutional violation from implementation of this rule. The final rule merely requires a special use authorization for special uses wherever they occur on National Forest System lands, including on National Forest System roads and trails (but not on roads under the jurisdiction of a State, County, or local public road authority).

Comment. One respondent stated that it is not clear what is meant by the determination that this rule will not have any retroactive effect for purposes of Executive Order 12988 on civil justice reform.

Response. The determination that the final rule will not have any retroactive effect for purposes of Executive Order 12988 means that the final rule will not be applied retroactively, that is, it will not be applied before its effective date.

Comment. One respondent asserted that the proposed rule has tribal implications and may pose a taking of Indian Tribal rights with respect to economic development.

Response. The proposed rule does not have Tribal implications pursuant to Executive Order 13175.

No comments were received on this section.

No comments were received on this section.

Comment. One respondent observed that there is no paperwork reduction associated with the proposed rule.

Response. This rulemaking fully complies with the Paperwork Reduction Act and its implementing regulations. The forms for special use applications and authorizations have been approved for use by the Office of Management and Budget (OMB) and assigned OMB control number 0596-0082. Therefore, this final rule does not contain any record-keeping or reporting requirements or other information collection requirements as defined in 5 CFR part 1320 that are not already required by law or not already approved for use.

Comment. Some respondents stated that roads and trails on National Forest System lands should be kept open for motorized recreationists.

Response. The final rule merely requires a special use authorization for special uses occurring on National Forest System roads and trails. The final rule does not effectuate decisions as to which roads or trails should be kept open for motor vehicle use. Such decisions are made through the forest planning process and through project-specific environmental analysis, typically by Forest Supervisors at the National Forest level. Decisions involving management, operation, and maintenance of National Forest System roads are made pursuant to a roads analysis conducted in accordance with FSM 7712.1.

Comment. One respondent observed that general public use, not commercial use, should be regulated.

Response. The rule at 36 CFR part 251, subpart B, regulates special uses, not general public use. With limited exceptions, the rule exempts general public use from the special use authorization requirement (§ 251.50(c)). The final rule clarifies which activities require a special use authorization. In situations where resource management concerns arise as a result of heavy public use, management alternatives would be evaluated at the local level in accordance with procedures in FSH 1909.15.

Comment. Several respondents requested designation of land for off-highway vehicle use. They noted that wilderness for them is a drive-through experience. They are concerned that available land for off-highway vehicle use is diminishing and that the proposed rule would take away land for off-highway vehicle use.

Response. The final rule does not address allocation of National Forest System lands for off-highway vehicle use. The final rule does not impose any additional restrictions on off-highway vehicle use or any other use of a road or trail, unless it constitutes one of the six special uses identified in the final rule, that is, noncommercial group use (which involves 75 or more people), outfitting and guiding, a recreation event, commercial filming, still photography, or a landowner's ingress or egress across National Forest System lands that requires travel on a National Forest System road that is not authorized for general public use. Designation of lands for off-highway vehicle use is conducted at the local level, through each Forest's land management planning process and environmental analysis.

Comment. Several respondents observed that use restrictions may be necessary, and that it is not clear how the agency will allocate use. Other respondents observed that it is not in the interest of the public to grant all permits to one company. These respondents were concerned that some companies do not utilize all of their allocation, that some companies have too much use, and that there needs to be a redistribution of existing use. Some respondents observed that there is a need to strike a fair balance between commercial and noncommercial programs in the allocation of use and that only commercial providers receive permits. Others observed that there is too much bias against commercial operations.

Response. This final rule does not affect allocation of use on National Forest System lands. Allocation of use is established through forest planning and site-specific environmental analysis. For outfitting and guiding, allocation is addressed in FSH 2709.11, sections 41.53(f) (Applications and Issuance of Permits), 41.53(g) (Assignment and Management of Temporary Use), 41.53(h) (Assignment and Management of Priority Use), and 41.53(i) (Reduction of Use in Service Days). These procedures for outfitting and guiding were implemented after publication for public notice and comment (55 FR 14445, April 18, 1990; 60 FR 30830, June 12, 1995).

Comment. One respondent stated that nonprofit institutional groups should be able to provide visitor services and that the Forest Service should not award all use to commercial outfitters.

Response. The final rule specifies which uses require special use authorizations; it does not affect allocation of use at the local level. Nonprofit groups, as well as for-profit entities, are valued providers of recreation experiences to the public on the National Forests. Nonprofit entities are not precluded from obtaining a special use authorization. To the contrary, Forest Service outfitting and guiding policy specifically refers to institutional and semi-public outfitting and guiding and land use fees for nonprofit organizations and educational institutions (FSH 2709.11, sec. 37.21j, 37.21k, and 41.53l).

Comment. Several respondents stated that permit fees for recreation events should not be based on costs incurred in organizing an event.

Response. The regulations governing land use fees are found at § 251.57 and are beyond the scope of this rulemaking. Revenue exclusions for recreation events are addressed in FSM 2721.49 and include the cost of prizes awarded.

Comment. Several respondents observed that because there are so many fees, it seems that one pays twice for the same thing. Another respondent stated that charging a fee for a special use authorization is unfair when the public is already paying taxes and, in some cases, other use fees, or when a member of the public has limited income. Respondents objected to the proposed rule on the grounds that they already pay an annual all-terrain vehicle fee or that parks have already been paid for by tax dollars. One respondent opposed any regulation that would result in fees of any kind. One respondent suggested that only organized events should pay fees. Another respondent stated that individual participants should be required to have Adventure Passes. Another commented that it is not clear how special use fees relate to individual use fees.

Response. Fees charged by the Forest Service are beyond the scope of this rulemaking.

The Department disagrees that charging a public admission or use fee and charging a land use fee for a special use authorization are equivalent or duplicative. The Forest Service has the authority under the Land and Water Conservation Fund Act and the Recreational Fee Demonstration Program to charge fees to the public for admission to or use of recreation sites, facilities, and services. The authority to charge public admission and use fees is set out in 16 U.S.C. 460l-6a and section 315 of Public Law 104-134. (The Adventure Pass is required under the Recreational Fee Demonstration Program for recreational use and is assessed for vehicular access on the four Southern California National Forests.) These public admission and use fees are different from land use fees charged for commercial special use authorizations under 36 CFR 251.57. The regulations at § 251.57(b) and Forest Service policy in Forest Service Handbook (FSH) 2709.11, chapter 30, provide that land use fees for special use authorizations may be waived in a number of circumstances when equitable and in the public interest.

Comment. One respondent suggested that the agency should charge a fee for an annual license for travel on forest trails, rather than requiring a special use permit.

Response. For the reasons identified above, the Forest Service is regulating special uses that are conducted on National Forest System trails, not travel on National Forest System trails. Charging a fee for an annual license for travel on National Forest System trails is therefore beyond the scope of this rulemaking.

Comment. One respondent asserted that club dues and other membership charges should not be subject to a permit fee and that there should not be invasive inquiries for membership names, telephone numbers, income, and dues.

Response. Land use fees charged for special use authorizations issued to clubs, and the administration of such authorizations, are addressed in existing regulations at § 251.57 and agency policy in Forest Service Manual (FSM) 2340 and Forest Service Handbook (FSH) 2709.11, and are beyond the scope of this rulemaking.

Comment. The Forest Service does not have authority to charge fees for use of R.S. 2477 rights-of-way.

Response. This final rule does not establish a requirement to assess land use fees or in any way address fees for use of R.S. 2477 rights-of-way. Rather, this rule exempts certain activities that are conducted within the scope of R.S. 2477 rights-of-way from the requirement to obtain a special use authorization. Therefore, the concern expressed in this comment is beyond the scope of this rulemaking.

Comment. One respondent stated that the criteria for issuing permits and the number of permits to be issued should be disclosed.

Response. This comment is beyond the scope of this rulemaking. Procedures for issuing new special use authorizations are found at § 251.54. Procedures for issuing new outfitting and guiding permits are set out in FSH 2709.11, section 41.53f, paragraph 2. The Forest Service prospectus process, which is used when competitive interest exists, is set out at FSM 2712.1. The competitive selection process requires that the prospectus specify the criteria to be used for issuing special use authorizations. Further direction on allocation of authorized outfitting and guiding use is found at FSH 2709.11, sections 41.53(f) through 41.53(i). The number of special use authorizations to be issued is a local decision subject to the forest planning process and environmental analysis as provided in FSH 1909.15.

Comment. Several respondents are concerned that the regulations do not provide enough detail on requiring that applicants for special use permits obtain consistent treatment from different Forests in the application process.

Response. The existing regulation at § 251.54 provides guidance for screening proposals and evaluating applications. This portion of the existing regulation is beyond the scope of this rulemaking.

Comment. Several respondents stated that District Rangers have too much power to regulate outfitting and guiding.

Response. District Rangers have delegated authority to issue and administer special use authorizations as set out in FSM 2703.34. Delegations of authority are not the subject of this rulemaking.

Comment. One respondent commented that it was burdensome to have to get permits from three different agencies.

Response. The Federal land management agencies operate under different laws, regulations, and policies, which often dictate the need for each agency to issue an authorization for activities that are limited to the Federal lands and resources administered by that agency. The necessity for separate Federal permitting procedures is beyond the scope of this rulemaking.

Comment. The public needs freedom to change activities without government oversight.

Response. The final rule does not affect the public's ability to change activities without government oversight. Rather, the final rule merely specifies the activities for which special use authorizations are required.

Comment. One respondent asked numerous specific questions that do not relate directly to this rulemaking and that involve issues that are the subject of pending litigation.

Response. The Department believes that it is inappropriate to respond to these questions because they are beyond the scope of this rulemaking and because they involve issues that are the subject of pending litigation.

Comment. One respondent observed that there should be more outfitter and guide involvement in visitor education and management.

Response. The final rule does not address outfitter and guide involvement in visitor education and management. Outfitters and guides are encouraged to work with their local District Ranger to identify such opportunities.

Comment. One respondent suggested that trails should have a separate set of guidelines or regulations.

Response. Policy pertaining to trail management can be found in FSM 2353 and FSH 2309.18 (Trails Management Handbook). Regulations relating to trail management can be found at 36 CFR parts 212, 261, and 295. The only aspect of trail management related to this rulemaking is the requirement for a special use authorization for special uses conducted on National Forest System trails.

Comment. One respondent stated that the rule would reverse the burden of proof in the exercise of regulatory power.

Response. The concept of burden of proof does not apply in this context. The final rule identifies the Forest Service's authorities for requiring a special use authorization for special uses occurring on National Forest System roads and trails. All of these special uses are already regulated elsewhere in the National Forest System.

Comment. One respondent objected to any special use authorization that would include a fee for noncommercial group use, outfitting and guiding, and recreation events.

Response. The regulations that address land use fees are found at § 251.57 and are beyond the scope of this rulemaking.

Comment. One respondent suggested that by foreclosing any permit exemption for noncommercial group uses, the proposed rule would subject them to the National Environmental Policy Act (NEPA), which would render the proposed rule constitutionally invalid.

Response. The Department disagrees with this assertion. Compliance with both NEPA and constitutional requirements was fully addressed in promulgating the final noncommercial group use rule (60 FR 45258) and is embodied at § 251.54(g)(3)(ii)(C). Numerous Federal district courts and courts of appeals have upheld the constitutionality of the noncommercial group use regulation.

Comment. Two respondents were concerned that costs for environmental assessments are high. One respondent believed that these costs should be borne by permit applicants.

Response. The Department recognizes that conducting environmental assessments is costly. Recovery of these costs is the subject of a separate rulemaking, which was published for public notice and comment November 24, 1999 (64 FR 66343).

Comment. Several respondents stated that permit fees should be spent on upkeep of trails and alleviating environmental impacts, but that permit fees instead have been spent on forest fires.

Response. The Forest Service's authority to retain and spend land use fees collected for special use authorizations is beyond the scope of this rulemaking.

Comment. One respondent suggested that the Forest Service include language in the FSM requiring that roads and trails be listed in the appropriate forest transportation atlas and require each National Forest to maintain a list of National Forest System roads and trails.

Response. The requirement for inclusion of forest roads and trails in a forest transportation atlas is contained in § 212.2 and is not the subject of this rulemaking.

The changes in the final rule at § 251.50 and § 251.51 provide more consistent procedures for processing special use proposals and applications and administering special use authorizations for use and occupancy of National Forest System lands. The final rule also makes terminology consistent in parts 251, 261, and 295. The changes are intended to improve administrative efficiencies and have no environmental effects. Section 31.1b of FSH 1909.15 (57 FR 43180, September 18, 1992) excludes from documentation in an environmental assessment or environmental impact statement rules, regulations, or policies to establish Service-wide administrative procedures, program processes, or instructions. The Department's conclusion is that this final rule falls within this category of actions and that no extraordinary circumstances exist as currently defined that require preparation of an environmental assessment or environmental impact statement.

This final rule has been reviewed under USDA procedures and Executive Order 12866 on regulatory planning and review. It has been determined that this is not a significant rule. This final rule does not have an annual effect of $100 million or more on the economy, nor does it adversely affect productivity, competition, jobs, the environment, public health and safety, or State or local governments. This final rule does not interfere with an action taken or planned by another agency, nor does it raise new legal or policy issues. Finally, this final rule does not alter the budgetary impact of entitlement, grant, user fee, or loan programs or the rights and obligations of beneficiaries of such programs. Accordingly, this final rule is not subject to Office of Management and Budget (OMB) review under Executive Order 12866.

This final rule has been considered in light of the Regulatory Flexibility Act (5 U.S.C. 602 et seq. ). Based on a threshold Regulatory Flexibility Act analysis prepared by the Forest Service for this final rule, it has been determined that this final rule does not have a significant economic impact on a substantial number of small entities as defined by the act because the final rule does not impose record-keeping requirements on them; it does not affect their competitive position in relation to large entities; and it does not affect their cash flow, liquidity, or ability to remain in the market.

This final rule does not impact a substantial number of small entities because the Forest Service estimates that fewer than 40 recreation event authorizations, 50 outfitting and guiding authorizations, 3 still photography authorizations, 4 commercial filming authorizations, and 64 noncommercial group use permits will be issued as a result of this rule. The efficiencies to be achieved by this rule should benefit small businesses that seek to use and occupy National Forest System lands by ensuring consistency in procedures across National Forests and regions and by eliminating costly, time-consuming, and unnecessary processing of certain special use applications and administration of certain special use authorizations. The benefits, most of which cannot be quantified, are not likely to alter costs substantially to small businesses.

This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 12630. It has been determined that the final rule does not pose the risk of a taking of private property.

This final rule has been reviewed under Executive Order 12988 on civil justice reform. After adoption of this final rule, (1) all State and local laws and regulations that conflict with this rule or that impede its full implementation will be preempted; (2) no retroactive effect will be given to this final rule; and (3) it will not require administrative proceedings before parties may file suit in court challenging its provisions.

The agency has considered this final rule under the requirements of Executive Order 13132 on federalism, and has determined that the final rule conforms with the federalism principles set out in this Executive Order; does not impose any compliance costs on the States; and does not have substantial direct effects on the States, the relationship between the Federal government and the States, or the distribution of power and responsibilities among the various levels of government. Therefore, the agency has determined that no further assessment of federalism implications is necessary.

Moreover, this final rule does not have Tribal implications as defined by Executive Order 13175, Consultation and Coordination With Indian Tribal Governments, and therefore advance consultation with Tribes is not required.

This final rule has been reviewed under Executive Order 13211 of May 18, 2001, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. It has been determined that this final rule does not constitute a significant energy action as defined in the Executive Order.

Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), which the President signed into law on March 22, 1995, the agency has assessed the effects of this final rule on State, local, and Tribal governments and the private sector. This final rule does not compel the expenditure of $100 million or more by any State, local, or Tribal government or anyone in the private sector. Therefore, a statement under section 202 of the act is not required.

The forms for special use applications and authorizations have been approved for use by OMB and assigned OMB control number 0596-0082. Therefore, this final rule does not contain any record-keeping or reporting requirements or other information collection requirements as defined in 5 CFR part 1320 that are not already required by law or not already approved for use. Moreover, the final rule should reduce the number of applicants for special use authorizations by clarifying those circumstances when special use authorizations are not required. Accordingly, the review provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and its implementing regulations at 5 CFR part 1320 do not apply.

This final rule corrects the inadvertent deletion of certain entries in the § 172.101 Hazardous Materials Table (HMT) primarily made during the recent publication of 49 CFR Parts 100 to 185. These errors were the result of a misunderstanding concerning the amendatory language in final rules that affected the HMT, in particular, Docket HM-215E (July 31, 2003; 68 FR 44992).

The amendments contained in this rule are minor changes and do not impose new requirements. Because these amendments do not impose new requirements, notice and public procedure are unnecessary. The following is a summary of the amendments made under this final rule.

We are amending the HMT to correct certain entries as follows:

1. The following entries, that were inadvertently removed, are being reinserted:

2. The first occurrence of the entry “Organochlorine pesticides, liquid, toxic, flammable, flash point not less than 23 degrees C, UN2995,” Packing Group III, is removed.

3. The entry “[PG II].,” immediately preceding the entry “Pentanes, UN1265,” is removed.

4. The entry “Gasohol gasoline mixed with ethyl alcohol, with not more than 20 percent alcohol, NA1203,” Packing Group I, is replaced with “Gasohol gasoline mixed with ethyl alcohol, with not more than 20 percent alcohol, NA1203,” Packing Group II.

This final rule is not a significant regulatory action under section 3(f) of Executive Order 12866 and therefore, was not reviewed by the Office of Management and Budget. This final rule is not a significant rule under the Regulatory Policies and Procedures of the Department of Transportation [44 FR 11034]. Because there is no impact of this rule, preparation of a regulatory impact analysis is not warranted.

RSPA is not aware of any State, local, or Indian tribe requirements that would be preempted by correcting editorial errors and making minor regulatory changes. This final rule does not have sufficient federalism impacts to warrant the preparation of a federalism assessment

This final rule was analyzed in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Because this final rule does not have tribal implications, does not impose substantial direct compliance costs, and is required by statute, the funding and consultation requirements of Executive Order 13175 do not apply.

I certify that this final rule will not have a significant economic impact on a substantial number of small entities. This rule makes minor editorial changes which will not impose any new requirements on persons subject to the HMR; thus, there are no direct or indirect adverse economic impacts for small units of government, businesses or other organizations.

This final rule does not impose new information collection requirements.

A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.

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

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

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

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

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

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

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

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

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

Under Part 544, as long as an insurer is listed, it must file reports on or before October 25 of each year. Thus, any insurer listed in Appendices A, B or C must file a report by October 25, 2004 and by each succeeding October 25, absent an amendment removing the insurer's name from the appendices.

On April 9, 2004, NHTSA published a notice of proposed rulemaking (NPRM) to update the list of insurers in Appendices A, B, and C required to file reports (69 FR18861). Appendix A lists insurers that must report because each had 1 percent of the motor vehicle insurance premiums on a national basis. The list was last amended in a final rule published on October 14, 2003 (68 FR 59132). Based on the 2001 calendar year data market shares from A.M. Best, we proposed to make no changes to Appendix A.

Each of the 19 insurers listed in Appendix A is required to file a report by October 25, 2004, setting forth the information required by Part 544, for each State in which it did business in the 2001 calendar year. As long as these 19 insurers remain listed, they are required to submit a report by each subsequent October 25, for the calendar year ending slightly less than 3 years before.

Appendix B lists insurers required to report for particular States for calendar year 2001, because each insurer had a 10 percent or greater market share of motor vehicle premiums in those States. Based on the 2001 calendar year data for market shares from A.M. Best, we proposed to make no changes to Appendix B.

The eight insurers listed in Appendix B are required to report on their calendar year 2001 activities in every State where they had a 10 percent or greater market share. These reports must be filed by October 25, 2004, and set forth the information required by Part 544. As long as these eight insurers remain listed; they would be required to submit reports on or before each subsequent October 25 for the calendar year ending slightly less than 3 years before.

Appendix C lists rental and leasing companies required to file reports. Based on information in Automotive Fleet Magazine and Business Travel News for 2000, NHTSA proposed to add ANC Rental Corporation and remove Associates Leasing Inc., and the Consolidated Service Corporation. Each of the 17 companies (including franchisees and licensees) listed in Appendix C would be required to file reports for calendar year 2001 no later than October 25, 2004, and set forth the information required by Part 544. As long as those 17 companies remain listed, they would be required to submit reports before each subsequent October 25 for the calendar year ending slightly less than 3 years before.

In response to the NPRM, the agency received no comments. Accordingly, this final rule adopts the proposed changes to Appendices A, B, and C.

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

a. Mail: Carlita Ballard, Office of International Policy, Fuel Economy and Consumer Programs, NHTSA, NVS-131, 400 Seventh Street, SW., Washington, DC 20590;

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

c. Fax: (202) 493-2290.

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

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

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

NHTSA does not believe that this rule, reflecting current data, affects the impacts described in the final regulatory evaluation prepared for the final rule establishing Part 544 (52 FR 59; January 2, 1987). Accordingly, a separate regulatory evaluation has not been prepared for this rulemaking action. Using the Bureau of Labor Statistics Consumer Price Index for 2003 ( see http://www.bls.gov/cpi ), the cost estimates in the 1987 final regulatory evaluation were adjusted for inflation. The agency estimates that the cost of compliance is $92,000 for any insurer added to Appendix A, $36,800 for any insurer added to Appendix B, and $10,616.80 for any insurer added to Appendix C. In this final rule, for Appendix A, the agency proposed no change, for Appendix B, the agency proposed no change; and for Appendix C, the agency added one company and removed two companies. The agency estimates that the net effect of this final rule would be a decrease of $10,616.80 to insurers as a group.

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

The information collection requirements in this final rule were submitted and approved by the Office of Management and Budget (OMB) pursuant to the requirements of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ). This collection of information is assigned OMB Control Number 2127-0547 (“Insurer Reporting Requirements”) and approved for use through July 31, 2006, and the agency will seek to extend the approval afterwards.

The agency also considered the effects of this rulemaking under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ). I certify that this final rule will not have a significant economic impact on a substantial number of small entities. The rationale for the certification is that none of the companies proposed for Appendices A, B, or C is construed to be a small entity within the definition of the RFA. “Small insurer” is defined, in part under 49 U.S.C. 33112, as any insurer whose premiums for all forms of motor vehicle insurance account for less than 1 percent of the total premiums for all forms of motor vehicle insurance issued by insurers within the United States, or any insurer whose premiums within any State, account for less than 10 percent of the total premiums for all forms of motor vehicle insurance issued by insurers within the State. This notice would exempt all insurers meeting those criteria. Any insurer too large to meet those criteria is not a small entity. In addition, in this rulemaking, the agency proposes to exempt all “self insured rental and leasing companies” that have fleets of fewer than 50,000 vehicles. Any self-insured rental and leasing company too large to meet that criterion is not a small entity.

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

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

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

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

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

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

• Are the requirements in the proposal clearly stated?

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

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

• Would more (but shorter) sections be better?

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

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

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

a. Mail: Carlita Ballard, Office of International Policy, Fuel Economy and Consumer Programs, NVS-131, NHTSA, 400 Seventh Street, SW., Washington, DC 20590;

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

c. Fax: (202) 493-2290.

Several of the background documents for the MMHSRP and the NMMTB Specimen Access Policy can be downloaded from the Health and Stranding Response Program web site at http://www.nmfs.noaa.gov/prot_res/PR2/Health_and_Stranding/Response_Program/mmhsrp.html

On November 12, 2002, NMFS proposed a protocol for access to tissue specimen samples from the NMMTB (67 FR 68553). The proposed rule provided background information on the availability of tissue specimen samples from the NMMTB, which is summarized here. The NMMTB provides protocols, techniques, and physical facilities for the long-term storage of tissues from marine mammals. Scientists can request tissues from this repository for retrospective analyses to determine environmental trends of contaminants and other analytes of interest. The NMMTB is currently managed in collaboration with the National Institute of Standards and Technology (NIST) and is housed at the Hollings Marine Laboratory in Charleston, SC and the NIST campus in Gaithersburg, MD as part of the National Biomonitoring Specimen Bank. The NMMTB collects, processes, and stores tissues or blood from specific species; animals from mass strandings; animals that have been trapped, injured or killed incidental to commercial fisheries; animals taken for subsistence purposes; animals from which biopsies have been obtained; and animals from unusual mortality events.

Each tissue specimen consists of duplicate samples (denoted A and B) of approximately 150 g. each. When a portion of a tissue specimen is requested for analysis, the “B” sample of that specimen can be cryogenically homogenized and aliquoted into approximately 20 subsamples of 6 to 8 g. each. Fifty percent of each specimen is available for research and scientific evaluations consistent with the goals of the NMMTB and 50 percent is intended for long-term storage as a more permanent archive for decades.

Each “B” sample of a specimen is divided into three categories. Category 1, which is 10 percent of the homogenized material, is reserved for baseline analyses. Category 2 consists of 50 percent of the material and is reserved for use by specimen contributors. Category 3 constitutes 40 percent of the material and is available to the scientific community for research that is consistent with the goal of the NMMTB and the MMHSRP.

If an “A” sample is eventually homogenized, it is divided into the following four categories. Category 1 consists of 10 percent of the material for baseline analyses. Category 2 consists of 25 percent of the material reserved for use by the specimen contributors. Category 3 consists of 25 percent of the material available to the scientific community. Category 4 contains the remaining 40 percent, which is intended as a permanent archive. Category 4 will not be used unless a very high need can be identified by NOAA and the Department of the Interior. Combining the “A” and “B” samples, the specimen allocations for each use are as follows: Category 1 = 10 percent, Category 2 = 37.5 percent, Category 3 = 32.5 percent, and Category 4 = 20 percent.

NMFS received comments from a variety of sources, including representatives of interest groups, state and Federal agencies, universities, and private citizens. Comments duplicated others; therefore, individual comments were combined and addressed together below. Report specific comments were considered and were incorporated, as appropriate. There was also a comment received via NMFS' E-comment website.

Comment 1: Four commenters requested that the contributors be included in the review process.

Response: The MMHSRP Program Manager will send the request and attached study plan to any contributor(s) of the tissue specimen sample. The contributor(s) of the sample may submit comments on the proposed research activity to the Director, Office of Protected Resources within 30 days of the date that the request was sent to the contributor(s).

Comment 2: All analysis should be reported and made available to the contributor(s).

Response: The research/findings based on use of the banked tissue will be reported to the NMMTB, MMHSRP Program Manager, and the contributor.

Comment 3: Credit and acknowledgment should include the original collector.

Response: Applications will be required to include agreement that credit and acknowledgment will be given to U.S. Fish and Wildlife Service, U.S. Geologic Service, NMFS, National Institute of Standards and Technology, Minerals Management Service (MMS), the NMMTB, and the collector for use of banked tissue.

Comment 4: Credit and acknowledgment should include the Minerals Management Service.

Response: This was incorporated into the protocol (see response to comment #3).

Comment 5: Tissue specimen samples used for DNA sequencing should be required to archive sequences in the national Center for Biotechnology Information's GenBank. Sequence accessions in GenBank should document the source, citing a NIST catalog number that individually identifies the animal.

Response: This was incorporated into the protocol.

Comment 6: Tissue specimen samples should be destroyed after research so subsequent research that was not reviewed or approved can not be conducted.

Response: The applicant will dispose of the tissue specimen sample after the research is completed unless the requester puts in another request for research and receives approval. The timeline for this request is three months after the original project has been completed.

Comment 7: The second paragraph of the Background section was misleading when discussing sample “A” and “B”.

Response: This paragraph was clarified so that it was not misleading.

Comment 8: MMS must be designated as having first priority and right of first refusal for access to Alaska Marine Mammal Tissue Archival Project (AMMTAP).

Response: MMS will not have first priority and right of first refusal to AMMTAP tissues. MMS will have the same access to tissue specimen samples as all other federal agencies that are major partners.

Comment 9: The second paragraph of the back ground section is misleading in that it implies that 50% of the sample “B” is available to the scientific community for research purposes and 50% of the specimen “A” is not available. Both “A” and “B” samples are actually divided into categories of various uses. These categories for “B” sample are: 10% for use by the NMMTB for baseline analysis as part of its quality assurance procedures, 60% for use by Federal and non-Federal Contributors of specimens to the NMMTB, and 40% for use by the scientific community (non-contributing). The “A” sample is divided into 10% for baseline analysis, 25% for Contributors, 25% for scientific community, and 40% for long-term archive.

Response: There is no change, the percentage will stay the same.

Comment 10: It must be clear in the description on “How to Apply,” that the procedures described are for the scientific community (non-contributors).

Response: A copy of the applicant's scientific research permit is requested in the “How to Apply” section. This will clarify that the tissue specimen sample will be used for scientific research.

Comment 11: More streamlined access procedures should be in place for contributors, otherwise many important partners may be lost to the NMMTB and to the MMHSRP.

Response: Contributors need to send a proposal for tissue samples to the review committee. This level of review is needed to ensure that the samples are being used properly.

Comment 12: The e-comment computer program used to send in comments was difficult, cumbersome and user-unfriendly.

Response: The proposed rule was one of the first rules being used for the e-comments program and these problems have been subsequently corrected.

Under 16 U.S.C. 1421f, section 407(d)(1) of the Marine Mammal Protection Act (MMPA), NMFS must establish criteria for access to marine mammal tissues in the NMMTB and make those criteria available for public review and comment, which NMFS made available in the proposed rule. In addition, pursuant to MMPA section 407(d) NMFS must establish criteria for access to tissue analyses conducted pursuant to MMPA section 407(b) and data in the central marine mammal data base maintained under MMPA section 407(c). NMFS will establish these additional criteria in subsequent rulemaking.

The criteria require that applicants for tissue specimen samples from the NMMTB demonstrate that their research will fulfill the goals of the NMMTB and MMHSRP and that comparable tissue samples to accomplish the goals of the proposed research could not be readily obtained from other sources. The goal of the National Marine Mammal Tissue Bank (NMMTB) is to maintain quality controlled marine mammal tissues and or blood that will permit retrospective analyses to determine such things as environmental trends of contaminants and other analytes of interest and that will provide the highest quality samples for analyses using new and innovative techniques. The goals of the MMHSRP are to facilitate the collection and dissemination of reference data on marine mammals and health trends of marine mammal populations in the wild; to correlate the health of marine mammals and marine mammal populations in the wild with available data on physical, chemical, and biological environmental parameters; and to coordinate effective responses to unusual mortality events.

How To Apply

1. Applicants must submit a signed written request with attached study plan to the MMHSRP Program Manager, Office of Protected Resources, NMFS (see ADDRESSES ).

2. The following specific information must be included in the request:

a. A clear and concise statement of the proposed use of the banked tissue specimen sample. The applicant must demonstrate that the proposed use of the banked tissue is consistent with the goals of the NMMTB and the MMHSRP (described above);

b. A copy of the applicant's scientific research permit. The applicant must demonstrate that the proposed use of the banked tissue is authorized by the permit;

c. Name of principal investigator, official title, and affiliated research or academic organization;

d. Specific tissue sample and quantity desired;

e. Research facility where analyses will be conducted. The applicant must demonstrate that the research facility will follow the Analytical Quality Assurance (AQA) program, which was designed to ensure the accuracy, precision, level of detection, and intercompatibility of data resulting from chemical analyses of marine mammal tissues. The AQA consists of annual interlaboratory comparisons and the development of control materials and standard reference materials for marine mammal tissues. Standard Reference Materials for use in the analysis of marine mammal tissues can be purchased from the NIST;

f. Verification that funding is available to conduct the research;

g. Estimated date for completion of research, and schedule/date of subsequent reports;

h. Agreement that all (1)research/findings based on use of the banked tissue will be reported to the NMMTB, MMHSRP Program Manager, and the contributor; and (2) the sequences of any tissue specimen samples that are used/released for genetic analyses (DNA sequencing) will be archived in the National Center for Biotechnology Information's GenBank. Sequence accessions in GenBank should document the source, citing a NIST field number that indentifies the animal; and

i. Agreement that credit and acknowledgment will be given to U.S. Fish and Wildlife Service (USFWS), U.S. Geologic Service (USGS), NMFS, NIST, MMS, the NMMTB, and the collector for use of banked tissues. The applicant shall insert the following acknowledgment in all publications, abstracts or presentations based on research using the banked tissue:

3. Upon submission of a complete application, the MMHSRP Program Manager will send the request and attached study plan to the following entities which will function as the review committee:

a. Appropriate Federal agency (NMFS or USFWS) marine mammal management office for that particular species, and

b. Representatives of the NMMTB Collaborating Agencies (NMFS, USFWS, USGS Biological Resources Division, and NIST).

If no member of the review committee is an expert in the field that is related to the proposed research activity, any member may request an outside review of the proposal, which may be outside of NMFS or USFWS but within the Federal government.

4. The MMHSRP Program Manager will send the request and attached study plan to any contributor(s) of the tissue specimen sample. The contributor(s) of the sample may submit comments on the proposed research activity to the Director, Office of Protected Resources within 30 days of the date that the request was sent to the contributor(s).

5. The USFWS Representative of the NMMTB Collaborating Agencies will be chair of the review committees for requests involving species managed by the DOI. The MMHSRP Program Manager will be chair of all other review committees.

The Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan (FMP) and its implementing regulations found at 50 CFR part 648, subparts A, G (summer flounder), H (scup), and I (black sea bass), describe the process for specifying annual recreational measures. The recreational harvest limits for summer flounder, scup, and black sea bass fisheries were published as part of the 2004 specifications on January 14, 2004 (69 FR 2074). The 2004 coastwide recreational harvest limits are 11.21 million lb (5,085 mt) for summer flounder, 3.99 million lb (1,810 mt) for scup, and 4.01 million lb (1,819 mt) for black sea bass. The 2004 quota specifications, inclusive of the recreational harvest limits, were determined to be consistent with the 2004 target fishing mortality rate (F) for summer flounder and the target exploitation rates for scup and black sea bass.

The proposed rule to implement annual Federal recreational measures for the 2004 summer flounder, scup, and black sea bass fisheries was published on April 14, 2004 (69 FR 19805), and contained management measures (minimum fish sizes, possession limits, and fishing seasons) intended to keep annual recreational landings from exceeding the specified harvest limits. A complete discussion of the development of the recreational measures appeared in the preamble of the proposed rule and is not repeated here.

Table 1 contains the coastwide Federal measures for scup and black sea bass that are being implemented. As described below, NMFS has added one day (September 7) to the open season for scup as a result of updated landings information for 2003. The recreational measures for black sea bass contained in this final rule are unchanged from those published in the proposed rule. For summer flounder, this final rule implements conservation equivalency, as the process was described in the proposed rule. The management measures will vary according to the state of landing (see Table 2). All minimum fish sizes discussed below are total length (TL) measurements of the fish, i.e., the straight-line distance from the tip of the snout to the end of the tail while the fish is lying on its side.

In the proposed rule published on April 14, 2004 (69 FR 19805), NMFS indicated that a 58-percent reduction in scup landings would be necessary to achieve the target, and proposed scup open seasons of January 1 through February 29, and September 8 through November 30. Since publication of the proposed rule, and based on updated landings information for 2003 (9.3 million lb (4,233 mt) rather than 9.6 million lb (4,354 mt)), NMFS has determined that the required reduction in landings is 57 percent. The revised information allows for the extension of the open season by one day in September. Therefore, the second open season would begin September 7 rather than September 8. Section 648.122(g) is amended accordingly.

At the time the proposed rule was published, it was not known which states would have their conservation equivalency proposals approved by the Commission. The Commission approved the proposals of MA, RI, CT, NJ, DE, MD, VA, and NC. Based on the recommendation of the Commission, the Regional Administrator finds that the recreational fishing measures proposed to be implemented by these states for 2004 are the conservation equivalent of the season, minimum size, and possession limit prescribed in §§ 648.102, 648.103, and 648.105(a), respectively. According to the regulation at § 648.107(a)(1), vessels subject to the recreational fishing measures of this part landing summer flounder in one of these states with an approved conservation equivalency program shall not be subject to the more restrictive Federal measures, and shall instead be subject to the recreational fishing measures implemented by the state in which they land. Section 648.107(a) is amended accordingly.

Based on the recommendation of the Commission, the Regional Administrator finds that the recreational fishing measures proposed to be implemented by NY for 2004 are not the conservation equivalent of the season, minimum size, and possession limit prescribed in §§ 648.102, 648.103, and 648.105(a), respectively. Therefore, according to § 648.107(b), federally permitted vessels subject to the recreational fishing measures of this part, and other recreational fishing vessels registered in states and subject to the recreational fishing measures in this part, that land in NY are subject to the following precautionary default measures: An open season January 1 through December 31; a minimum size of 18 inches (45.7 cm) total length; and a possession limit of one fish.

Six comment letters were received, via e-mail, regarding the proposed recreational management measures.

Comment 1: Three of the comment letters indicated opposition to any change to the regulations that would result in more restrictive measures for the subject fisheries, especially summer flounder.

Response: Through this final rule, NMFS approves conservation equivalency for the recreational summer flounder. The Commission's conservation equivalency guidelines require each state, using state-specific equivalency tables, to determine and implement an appropriate possession limit, minimum fish size, and closed season to achieve the landings reduction necessary for each state. The intention of conservation equivalency is for the combined effect of all of the states' management measures to achieve the same level of conservation as would Federal coastwide measures developed to achieve the recreational harvest limit, if implemented by all of the states. The state-specific tables are adjusted to account for the past effectiveness of the regulations in each state. Landings information for 2003 indicates that NY and NJ must reduce recreational summer flounder landings in 2004. Therefore, it is necessary for these states to implement more restrictive measures than implemented for 2003 in order to effect the required reductions.

Comment 2: One of the comment letters expressed support for maintaining the black sea bass regulations rather than relaxing them, given that there may a shift of effort from summer flounder to black sea bass. This letter also indicated concern about the Marine Recreational Fisheries Statistics Survey (MRFSS) data on which the recommended summer flounder reduction for NY is based, and about implementation of different summer flounder regulations in neighboring states.

Response: NMFS agrees that the black sea bass management measures implemented for 2003 should be maintained (as adjusted for the 2004 calendar), both to provide regulatory consistency and predictability to the party/charter and recreational fishing sectors and because of the possibility that relaxation of the management measures may result in the 2004 landings target being exceeded, resulting in the need for stricter measures in 2005.

To respond to concerns regarding the MRFSS landings estimated for 2003, the NMFS Recreational Fishery Statistics Team re-examined the 2003 summer flounder and scup harvest estimates relative to those produced for the previous 5 years, and found no errors in the data or estimates for either NY or NJ. Its review indicates that both the number of successful trips and the average number of fish increased significantly in both the party/charter and private/rental boat modes in those states, and these increases account for the increase in the landings estimates. The Monitoring Committees, the Mid-Atlantic Fishery Management Council (Council), and NMFS base their recommendations and decisions regarding recreational measures for the summer flounder, scup, and black sea bass fisheries on the MRFSS landings because they are considered the best information available.

As indicated in the response to Comment 1, under conservation equivalency, each state uses state-specific tables to determine and implement an appropriate possession limit, minimum fish size, and closed season to achieve the landings reduction necessary for each state. Because last year's landings in each state vary as a percentage of the state's target, the measures that a state must implement to hold this year's landings to within the target will also vary. Thus, there may be differing management measures implemented in neighboring states under the conservation equivalency process.

Comment 3: One commenter submitted two comment letters that indicate support for marine protected areas, reduction of fishing quotas in general, and fisheries enforcement; and opposition of quota allocation to commercial entities, any increase to the research set-aside quota for scup, and fishing opportunities in states that exceed their summer flounder recreational harvest limit.

Response: This rule implements management measures (minimum fish sizes, possession limits, and fishing seasons) intended to keep annual recreational landings from exceeding the specified harvest limits. While NMFS acknowledges that consideration of marine protected areas, sector allocation shares, and fisheries enforcement may be important, this rule is not the proper mechanism to address these general issues. The FMP does not allow for closure of the summer flounder recreational fishery, or a reduction of a state's summer flounder quota, as a consequence of overharvest of a state's recreational harvest limit.

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

The Assistant Administrator for Fisheries, NOAA, finds, for certain measures contained in this rule, good cause pursuant to 5 U.S.C 553(d)(3) to make this rule effective immediately, thereby waiving the 30-day delayed effectiveness date required by 5 U.S.C. 553. Additionally, pursuant to 5 U.S.C 553(d)(1), certain measures in this rule relieve a restriction and are therefore not subject to a delay in effective date. The linchpin of NMFS's decision whether to proceed with the coastwide measures or to give effect to the conservation equivalent measures adopted by the individual states is advice from the Commission as to the results of its review of the plans of the individual states. The measures implemented by NY on May 1, 2004, differed from the proposals approved by the Commission's Technical Committee for that state in March 2004, and were determined by the Technical Committee to be inconsistent with the annual specifications set by the Commission's Summer Flounder Management Board (Board). The Commission gave NY until June 15, 2004, to implement a management program that would achieve the required 48.5-percent reduction in landings. On June 17, 2004, the Commission informed NMFS that NY has been found out of compliance and that the management programs implemented by the other states were approved by the Board.

During the pendency of the Commission's process and subsequent preparation of this rule by NMFS, the recreational fisheries for these three species have commenced. The party and charter boats from the various states are by far the largest component of the recreational fishery that fish in the Federal exclusive economic zone. The Federal coastwide regulatory measures for the three species that were codified last year remain in effect. The Federal coastwide measures for the summer flounder fishery are more restrictive than the measures adopted by the states, approved by the Commission as conservation equivalents, and implemented by NMFS in this rule. Further, the fishing seasons for the black sea bass fishery that this rule implements is less restrictive than the season in the Federal coastwide measures currently in effect. Federally permitted recreational vessels subject to these more restrictive measures are currently operating at a disadvantage since non-Federally permitted recreational vessels can fish in state waters under more liberal measures. With respect to the scup fishery, the fishing season must be shortened by over a month to achieve the required reduction in recreational fishing effort. The Federal coastwide measures currently in effect allow the recreational fishing season for scup to reopen on July 1 instead of the September 7 reopening date in this rule. Failure to have this rule effective immediately will allow recreational overages this year, leading to increased restrictions on the recreational scup fishery next year.

Included in this final rule is the FRFA prepared pursuant to 5 U.S.C. 604(a). The FRFA incorporates the economic impacts summarized in the IRFA for the proposed rule (69 FR 19805), the comments on, and responses to, the proposed rule, and the analyses completed in support of this action. A copy of the FRFA is available from the Council (see ADDRESSES ).

A description of the reasons why action by the agency is being taken and the objectives of this final rule are explained in the preambles to the proposed rule and this final rule and are not repeated here.

Six comments were received on the measures contained in the proposed rule. No comments were received on the IRFA or the economic impact of the rule. No changes to the proposed rule were required to be made as a result of public comments. For a summary of the comments received, refer to the section above titled “Comments and Responses.”

The Council estimated that the proposed action could affect any of the 775 vessels possessing a Federal party/charter permit for summer flounder, scup, and/or black sea bass in 2002, the most recent year for which complete permit data are available. Only 327 of these vessels reported active participation in the recreational summer flounder, scup, and/or black sea bass fisheries in 2002.

No additional reporting, recordkeeping, or other compliance requirements are included in this final rule.

Under the conservation equivalency approach, each state may implement unique management measures appropriate to that state to achieve state-specific harvest limits, as long as the combined effect of all of the states' management measures achieves the same level of conservation as would Federal coastwide measures developed to achieve the annual recreational harvest limit. The conservation equivalency approach allows states flexibility in the specification of management measures, unlike the application of one set of coastwide measures. It is not possible to further mitigate economic impacts on small entities because the specification of the recreational management measures (possession limits, minimum fish size, and fishing seasons) contained in this final rule is constrained by the conservation objectives of the FMP, and implemented at 50 CFR part 648 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

The economic analysis assessed the impacts of the various management alternatives. In the EA, the no action alternative for each species is defined as the continuation of the management measures as codified for the 2003 fishing season. In consideration of the Council-recommended recreational harvest limits established for the 2004 fishing year, implementation of the same recreational measures established for the 2003 fishing year would be inconsistent with the goals and objectives of the FMP and its implementing regulations, and, because it could result in overfishing of the scup fishery, would be inconsistent with National Standard 1 of the Magnuson-Stevens Act. Therefore, the status quo alternative was not considered to be a reasonable alternative to the preferred action and its collective impacts were not analyzed in the EA/RIR/IRFA. The no action measures, with open seasons modified slightly for the 2004 calendar, were analyzed in Alternative 2.

At this time, it is not possible to determine the economic impact of summer flounder conservation equivalency on each state. However, it is likely to be proportional to the level of landings reductions required. If the conservation equivalency alternative is effective at achieving the recreational harvest limit, then it is likely to be the only alternative that minimizes economic impacts, to the extent practicable, yet achieves the biological objectives of the FMP. Because states have a choice as to the specific measures to apply to landings in each state, it is more rational for the states to adopt conservation equivalent measures that result in fewer adverse economic impacts than to adopt the more restrictive measures contained in the precautionary default alternative (i.e., only one fish measuring at least 18 inches (45.7 cm)).

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a small entity compliance guide will be sent to all holders of Federal party/charter permits issued for the summer flounder, scup, and black sea bass fisheries. In addition, copies of this final rule and guide (i.e., permit holder letter) are available from NMFS (see ADDRESSES ) and at the following website: http://www.nero.noaa.gov .

NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The 2004 TAC specified for Pacific ocean perch in the Eastern Aleutian District of the BSAI is 2,829 metric tons (mt) as established by the 2004 harvest specifications for groundfish of the BSAI (69 FR 9242, February 27, 2004).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2004 TAC for Pacific ocean perch in the Eastern Aleutian District will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 2,729 mt, and is setting aside the remaining 100 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific ocean perch in the Eastern Aleutian District of the BSAI.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such a requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of the directed fishery for Pacific ocean perch in the Eastern Aleutian District of the BSAI.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.