Background

This correcting amendment corrects changes to the Common Crop Insurance Regulations; Basic Provisions.

As published, in the Federal Register on August 10, 2004 (69 FR 48652) the FR Rule Document 04-18056 contained an error that may prove to be misleading and needs to be clarified.

The Food Safety and Inspection Service (FSIS) periodically issues regulations that require changes in the labeling of meat and poultry food products. Currently, the Agency establishes a separate compliance date for each new labeling regulation that it publishes. Many meat and poultry establishments also produce non-meat and non-poultry food products subject to the jurisdiction of the Food and Drug Administration (FDA). FDA also periodically issues regulations that require changes in the labeling of such food products. In contrast to FSIS, FDA has established a standard uniform compliance date for all of its food labeling regulations that are issued during a given two year period. FSIS has determined that coordinating the effective dates of its labeling changes and FDA's labeling changes will minimize the economic impact of those changes on the industry.

Therefore, FSIS believes that there should be a uniform compliance date for all food product labeling regulations affecting meat and poultry establishments that are issued within a two year period. Such a compliance date will ensure that changes will take effect on a timely basis, but that companies will not have to respond separately to each change as it occurs.

In December 2002, FDA established January 1, 2006, as the uniform compliance date for all Federal food labeling regulations affecting non-meat and non-poultry food products which it issues between January 1, 2003, and December 31, 2004. FSIS anticipates that FDA will publish a notice in the Federal Register establishing January 1, 2008, as its next sequential uniform compliance date for food labeling regulations issued between January 1, 2005, and December 31, 2006. Therefore, in order to harmonize its compliance schedule with that of FDA, FSIS is establishing January 1, 2008, as the uniform compliance date for amendments to the Federal meat and poultry food product labeling regulations that it issues between January 1, 2005, and December 31, 2006.

Like FDA, FSIS intends to set uniform compliance dates in two year increments. FSIS believes that two year increments will enhance the industry's ability to make orderly adjustments to new labeling requirements. Industry will be able to plan for the use of label inventories and develop new labeling materials that meet the requirements of all labeling regulations made within the two year period, thereby minimizing the economic impact of labeling changes. By establishing a uniform compliance date that is the same as FDA's, FSIS is providing the meat and poultry industry with a greater ability to adjust its production plans to new labeling requirements across all of its product lines.

Establishing this policy serves consumers' interests because the cost of multiple short-term label revisions that would otherwise occur would likely be passed on to consumers in the form of higher prices. This action will not change existing requirements for compliance dates contained in final rules published before January 1, 2005. Therefore, all final FSIS regulations published in the Federal Register before January 1, 2005, will go into effect on the date stated in the respective final rules.

It will remain FSIS' policy generally to encourage industry to comply with new labeling regulations as quickly as feasible. Thus, when industry members voluntarily change their labels, they should consider incorporating any new requirements that have been published as final regulations up to that time.

The new uniform compliance date will apply only to final FSIS regulations that require changes in the labeling of meat and poultry products and that are published after January 1, 2005, and before December 31, 2006. In each of these regulations, FSIS will specifically identify January 1, 2008, as the compliance date. All meat and poultry food products that are subject to labeling regulations promulgated between January 1, 2005, to December 31, 2006, will be required to comply with these regulations when introduced into commerce on or after January 1, 2008. If any food labeling regulation involves special circumstances that justify a compliance date other than January 1, 2008, the agency will determine for that regulation an appropriate compliance date, which will be specified when the final regulation is published.

FSIS proposed to make this change in the Federal Register of May 4, 2004 (69 FR 24539). FSIS received four comments on the proposal, all of which came from trade associations. All four commenters fully supported FSIS' proposal to establish a policy to enact a uniform compliance date approach to food labeling consistent with that of the FDA.

This action has been determined not to be significant and it therefore has not been reviewed by the Office of Management and Budget in accordance with Executive Order 12866. Establishing a uniform compliance date for all future Federal food product labeling regulations affecting the meat and poultry industry that are issued by FSIS and FDA over a two year period will eliminate potentially burdensome requirements otherwise faced by the industry. This measure is consistent with regulatory reform of Federal rulemaking in that it eliminates potentially unnecessary and onerous requirements.

The elimination of potentially conflicting compliance dates for labeling requirements between meat and poultry products and non-meat and non-poultry products provides for an orderly industry adjustment to any new labeling requirements. Labeling changes in response to Federal regulations will likely be less frequent, and establishments will be able to plan for full utilization of their labeling stocks.

Establishing uniform compliance dates for food labeling regulations issued within specified time periods minimizes the economic impact of label changes for industry and may indirectly benefit consumers if cost savings are passed on in the form of lower prices. Further, FSIS is establishing the uniform compliance date to be consistent with the approach which the FDA has already established.

This rule does not have a significant economic impact on a substantial number of small entities; consequently, an initial regulatory flexibility analysis is not required (5 U.S.C. 601-612). The uniform compliance date does not impose any burden on small entities. The agency will conduct regulatory flexibility analyses of future labeling regulations if such analyses are required.

There are no paperwork or recordkeeping requirements associated with this policy under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Public awareness of all segments of rulemaking and policy development is important. Consequently, in an effort to ensure that the public and in particular minorities, women, and persons with disabilities, are aware of this final rule, FSIS will announce it on-line through the FSIS Web page located at http://www.fsis.usda.gov.

The Regulations.gov Web site is the central online rulemaking portal of the United States government. It is being offered as a public service to increase participation in the Federal government's regulatory activities. FSIS participates in Regulations.gov and will accept comments on documents published on the site. The site allows visitors to search by keyword or Department or Agency for rulemakings that allow for public comment. Each entry provides a quick link to a comment form so that visitors can type in their comments and submit them to FSIS. The Web site is located at http://www.regulations.gov.

FSIS also will make copies of this Federal Register publication available through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, regulations, Federal Register notices, FSIS public meetings, recalls, and other types of information that could affect or would be of interest to our constituents and stakeholders. The update is communicated via Listserv, a free e-mail subscription service consisting of industry, trade, and farm groups, consumer interest groups, allied health professionals, scientific professionals, and other individuals who have requested to be included. The update also is available on the FSIS web page. Through Listserv and the web page, FSIS is able to provide information to a much broader, more diverse audience.

The FAA has determined that notice and opportunity for prior public comment is impractical because these procedures would significantly delay issuance of the approval design and thus delivery of the affected aircraft. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance.

Interested persons are invited to submit such written data, views, or arguments as they may desire. Communications should identify the regulatory docket or special condition number and be submitted in duplicate to the address specified above. All communications received on or before the closing date for comments will be considered by the Administrator. The special conditions may be changed in light of the comments received. All comments received will be available in the Rules Docket for examination by interested persons, both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerning this rulemaking will be filed in the docket. Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must include a self-addressed, stamped postcard on which the following statement is made: “Comments to CE216.” The postcard will be date stamped and returned to the commenter.

On March 26, 2004, AMSAFE, Inc., Aviation Inflatable Restraints Division, 1043 North 47th Avenue, Phoenix, AZ 85043, applied for a supplemental type certificate for the installation of an inflatable lap belt restraint with a standard upper torso restraint (or shoulder harness) in Cessna Models 172 (R and S), 182 (S, T, and T182T), and 206 (H and T206H). The Cessna Models 172 (R and S), 182 (S, T, and T182T), and 206 (H and T206H) are single-engine, multi-place airplanes.

The inflatable restraint system is a three-point safety belt restraint system consisting of a traditional shoulder harness and an inflatable airbag lap belt. The inflatable portion of the restraint system will rely on sensors to electronically activate the inflator for deployment. The inflatable restraint system will be made available on the pilot, co-pilot, and passenger seats of these airplanes.

In the event of an emergency landing, the airbag will inflate and provide a protective cushion between the occupant's head and structure within the airplane. This will reduce the potential for head and torso injury. The inflatable restraint behaves in a manner that is similar to an automotive airbag, but in this case, the airbag is integrated into the lap belt. While airbags and inflatable restraints are standard in the automotive industry, the use of an inflatable three-point restraint system is novel for general aviation operations.

The FAA has determined that this project will be accomplished on the basis of providing the same current level of safety of the Cessna Models 172 (R and S), 182 (S, T, and T182T), and 206 (H and T206H). The FAA has two primary safety concerns with the installation of airbags or inflatable restraints:

• That they perform properly under foreseeable operating conditions; and

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

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

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

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

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

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

Given the level of safety of the current Cessna 172, 182, and 206 occupant restraints, the inflatable restraint system must show that it will offer an equivalent level of protection in the event of an emergency landing. In the event of an inadvertent deployment, the restraint must still be at least as strong as a Technical Standard Order approved belt and shoulder harnesses. There is no requirement for the inflatable portion of the restraint to offer protection during multiple impacts, where more than one impact would require protection.

The inflatable restraint system must deploy and provide protection for each occupant under a crash condition. The seats of the models 172 (R and S), 182 (S, T, and T182T), and 206 (H and T206H) are certificated to the structural requirements of § 23.562. Therefore, the test crash pulses identified in § 23.562 must be used to satisfy this requirement. Note that § 23.562 requires different test pulses between seats installed in the front row of the airplane and seats not installed in the front row of the airplane. Testing to these pulses will demonstrate that the crash sensor will trigger when exposed to a rapidly applied deceleration, like an actual crash event.

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

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

It is possible that an inflatable restraint will be “armed” even though no occupant is using the seat. While there will be means to verify the integrity of the system before flight, it is also prudent to require that unoccupied seats with active restraints not constitute a hazard to any occupant. This will protect any individual performing maintenance inside the cockpit while the aircraft is on the ground. The restraint must also provide suitable visual warnings that would alert rescue personnel to the presence of an inflatable restraint system.

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

The cabins of the Cessna model airplanes identified in these special conditions are confined areas, and the FAA is concerned that noxious gasses may accumulate in the event of airbag deployment. When deployment does occur, either by design or inadvertently, there must not be a release of hazardous quantities of gas or particulate matter into the cockpit.

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

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

Under the provisions of § 21.101, AMSAFE, Inc., must show that the Cessna models 172 (R and S), 182 (S, T, and T182T), and 206 (H and T206H), as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate Nos. 3A12 (172 R and S), 3A13 (182 S, T, and T182T) and A4CE (206 H and T206H) or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference are as follows:

Cessna 172 R: Part 23 of the Federal Aviation Regulations effective February 1, 1965, as amended by 23-1 through 23-6, except as follows: 14 CFR part 23, §§ 23.423, 23.611, 23.619, 23.623, 23.689, 23.775, 23.871, 23.1323, and 23.1563 as amended by Amendment 23-7. 14 CFR part 23, §§ 23.807, and 23.1524 as amended by Amendment 23-10. 14 CFR part 23, §§ 23.507; 23.771; 23.853(a), (b), and (c); and 23.1365 as amended by Amendment 23-14. 14 CFR part 23, § 23.951 as amended by Amendment 23-15. 14 CFR part 23, §§ 23.607, 23.675, 23.685, 23.733, 23.787, 23.1309, and 23.1322 as amended by Amendment 23-17. 14 CFR part 23, § 23.1301 as amended by Amendment 23-20. 14 CFR part 23, §§ 23.1353, and 23.1559 as amended by Amendment 23-21. 14 CFR part 23, §§ 23.603, 23.605, 23.613, 23.1329, and 23.1545 as amended by Amendment 23-23. 14 CFR part 23, §§ 23.441, and 23.1549 as amended by Amendment 23-28. 14 CFR part 23, §§ 23.779, and 23.781 as amended by Amendment 23-33. 14 CFR part 23, §§ 23.1, 23.51, and 23.561 as amended by Amendment 23-34. 14 CFR part 23, §§ 23.301, 23.331, 23.351, 23.427, 23.677, 23.701, 23.735, and 23.831 as amended by Amendment 23-42. 14 CFR part 23, §§ 23.961, 23.1093, 23.1143(g), 23.1147(b), 23.1303, 23.1357, 23.1361, and 23.1385 as amended by Amendment 23-43. 14 CFR part 23, §§ 23.562(a), 23.562(b)2, 23.562(c)1, 23.562(c)2, 23.562(c)3, and 23.562(c)4 as amended by Amendment 23-44. 14 CFR part 23, §§ 23.33, 23.53, 23.305, 23.321, 23.485, 23.621, 23.655, and 23.731 as amended by Amendment 23-45.

Cessna 172 S: Part 23 of the Federal Aviation Regulations, effective February 1, 1965, as amended by 23-1 through 23-6, except as follows: 14 CFR part 23, §§ 23.423, 23.611, 23.619, 23.623, 23.689, 23.775, 23.871, 23.1323, and 23.1563 as amended by Amendment 23-7. 14 CFR part 23, §§ 23.807, and 23.1524 as amended by Amendment 23-10. 14 CFR part 23, §§ 23.507; 23.771; 23.853(a), (b), and (c); and 23.1365 as amended by Amendment 23-14. 14 CFR part 23, § 23.951 as amended by Amendment 23-15. 14 CFR part 23, §§ 23.607, 23.675, 23.685, 23.733, 23.787, 23.1309, and 23.1322 as amended by Amendment 23-17. 14 CFR part 23, § 23.1301 as amended by Amendment 23-20. 14 CFR part 23, §§ 23.1353, and 23.1559 as amended by Amendment 23-21. 14 CFR part 23, §§ 23.603, 23.605, 23.613, 23.1329, and 23.1545 as amended by Amendment 23-23. 14 CFR part 23, §§ 23.441, and 23.1549 as amended by Amendment 23-28. 14 CFR part 23, §§ 23.779, and 23.781 as amended by Amendment 23-33. 14 CFR part 23, §§ 23.1, 23.51, and 23.561 as amended by Amendment 23-34. 14 CFR part 23, §§ 23.301, 23.331, 23.351, 23.427, 23.677, 23.701, 23.735, and 23.831 as amended by Amendment 23-42. 14 CFR part 23, §§ 23.961, 23.1093, 23.1143(g), 23.1147(b), 23.1303, 23.1357, 23.1361, and 23.1385 as amended by Amendment 23-43. 14 CFR part 23, §§ 23.562(a), 23.562(b)2, 23.562(c)1, 23.562(c)2, 23.562(c)3, and 23.562(c)4 as amended by Amendment 23-44. 14 CFR part 23, §§ 23.33, 23.53, 23.305, 23.321, 23.485, 23.621, 23.655, and 23.731 as amended by Amendment 23-45.

Cessna 182 S, T, and T182T: Part 23 of the Federal Aviation Regulations, effective February 1, 1965, as amended by 23-1 through 23-6, except as follows: 14 CFR part 23, §§ 23.423, 23.611, 23.619, 23.623, 23.689, 23.775, 23.871, 23.1323, and 23.1563 as amended by Amendment 23-7. 14 CFR part 23, §§ 23.807, and 23.1524 as amended by Amendment 23-10. 14 CFR part 23, §§ 23.507; 23.771; 23.853(a), (b), and (c); and 23.1365 as amended by Amendment 23-14. 14 CFR part 23, § 23.951 as amended by Amendment 23-15. 14 CFR part 23, §§ 23.607, 23.675, 23.685, 23.733, 23.787, 23.1309, and 23.1322 as amended by Amendment 23-17. 14 CFR part 23, § 23.1301 as amended by Amendment 23-20. 14 CFR part 23, §§ 23.1353, and 23.1559 as amended by Amendment 23-21. 14 CFR part 23, §§ 23.603, 23.605, 23.613, 23.1329, and 23.1545 as amended by Amendment 23-23. 14 CFR part 23, §§ 23.441, and 23.1549 as amended by Amendment 23-28. 14 CFR part 23, §§ 23.779, and 23.781 as amended by Amendment 23-33. 14 CFR part 23, §§ 23.1, 23.51, and 23.561 as amended by Amendment 23-34. 14 CFR part 23, §§ 23.301, 23.331, 23.351, 23.427, 23.677, 23.701, 23.735, and 23.831 as amended by Amendment 23-42. 14 CFR part 23, §§ 23.961, 23.1093, 23.1143(g), 23.1147(b), 23.1303, 23.1357, 23.1361, and 23.1385 as amended by Amendment 23-43. 14 CFR part 23, §§ 23.562(a), 23.562(b)2, 23.562(c)1, 23.562(c)2, 23.562(c)3, and 23.562(c)4 as amended by Amendment 23-44. 14 CFR part 23, §§ 23.33, 23.53, 23.305, 23.321, 23.485, 23.621, 23.655, and 23.731 as amended by Amendment 23-45.

Cessna 206 H and T206H: Part 23 of the Federal Aviation Regulations, effective February 1, 1965, as amended by 23-1 through 23-6, except as follows: 14 CFR part 23, §§ 23.423, 23.611, 23.619, 23.623, 23.689, 23.775, 23.871, 23.1323, and 23.1563 as amended by Amendment 23-7. 14 CFR part 23, §§ 23.807, and 23.1524 as amended by Amendment 23-10. 14 CFR part 23, §§ 23.507; 23.771; 23.853(a), (b), and (c); and 23.1365 as amended by Amendment 23-14. 14 CFR part 23, § 23.951 as amended by Amendment 23-15. 14 CFR part 23, §§ 23.607, 23.675, 23.685, 23.733, 23.787, 23.1309 and 23.1322 as amended by Amendment 23-17. 14 CFR part 23, § 23.1301 as amended by Amendment 23-20. 14 CFR part 23, §§ 23.1353, and 23.1559 as amended by Amendment 23-21. 14 CFR part 23, §§ 23.603, 23.605, 23.613, 23.1329, and 23.1545 as amended by Amendment 23-23. 14 CFR part 23, §§ 23.441, and 23.1549 as amended by Amendment 23-28. 14 CFR part 23, § 23.1093 as amended by Amendment 23-29. 14 CFR part 23, §§ 23.779, and 23.781 as amended by Amendment 23-33. 14 CFR part 23, §§ 23.1, 23.51, and 23.561 as amended by Amendment 23-34. 14 CFR part 23, §§ 23.301, 23.331, 23.351, 23.427, 23.677, 23.701, 23.735, and 23.831 as amended by Amendment 23-42. 14 CFR part 23, §§ 23.961, 23.1107(b), 23.1143(g), 23.1147(b), 23.1303, 23.1357, 23.1361, and 23.1385 as amended by Amendment 23-43. 14 CFR part 23, §§ 23.562(a), 23.562(b)2, 23.562(c)1, 23.562(c)2, 23.562(c)3, and 23.562(c)4 as amended by Amendment 23-44. 14 CFR part 23, §§ 23.33, 23.53, 23.305, 23.321, 23.485, 23.621, 23.655, and 23.731 as amended by Amendment 23-45.

For all the models listed above, the certification basis also includes all exemptions, if any; equivalent level of safety findings, if any; and special conditions not relevant to the special conditions adopted by this rulemaking action.

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

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

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

The Cessna models 172 (R and S), 182 (S, T, and T182T), and 206 (H and T206H) will incorporate the following novel or unusual design feature:

The AMSAFE, Inc., Inflatable Three-Point Restraint Safety Belt with an Integrated Airbag Device. The purpose of the airbag is to reduce the potential for injury in the event of an accident. In a severe impact, an airbag will deploy from the lap belt portion of the restraint, in a manner similar to an automotive airbag. The airbag will deploy between the head of the occupant and airplane interior structure. This will, therefore, provide some protection to the head of the occupant. The restraint will rely on sensors to electronically activate the inflator for deployment.

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

Accordingly, these special conditions are adopted for these Cessna models equipped with the AMSAFE, Inc., three-point inflatable restraint. Other conditions may be developed, as needed, based on further FAA review and discussions with the manufacturer and civil aviation authorities.

As discussed above, these special conditions are applicable to the Cessna models 172 (R and S), 182 (S, T, and T182T), and 206 (H and T206H) equipped with the AMSAFE, Inc., three-point inflatable restraint system. Should AMSAFE, Inc., apply at a later date for a supplemental type certificate to modify any other model on the Type Certificates identified in these special conditions to incorporate the same novel or unusual design feature, the special conditions would apply to that model as well under the provisions of § 21.101.

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

Under standard practice, the effective date of final special conditions would be 30 days after the date of publication in the Federal Register ; however, as the certification date for these Cessna models, as modified by AMSAFE, Inc., is imminent, the FAA finds that good cause exists to make these special conditions effective upon issuance.

The FAA proposed to amend 14 CFR part 39 with a proposed airworthiness directive (AD). The proposed AD applies to PWC PT6A-60A and PT6A-65B turboprop engines. We published the proposed AD in the Federal Register on June 17, 2003, (68 FR 35826). That action proposed to require replacing Woodward propeller governor assemblies, P/N 8210-212H.

We provided the public the opportunity to participate in the development of this AD. We have considered the comments received.

One commenter suggests that the solenoid-actuated design is not considered hazardous and will not cause “total” loss of directional control. The commenter admits that this condition will affect directional control but states, based on Raytheon Aircraft Company flight tests with one solenoid failed during certification, “at no time was directional control totally lost or any damage incurred to the aircraft.”

We do not agree. Although Raytheon Aircraft Company conducted a flight test that did not result in “total” loss of control or damage to the airplane, we feel the test was flown under more controlled circumstances than those occurring in service and with knowledge that one solenoid was failed during the test. The commenter doesn't address the situation where an average pilot, experiencing this failure unexpectedly, would make the correct control responses at the correct times to prevent “total” loss of directional control and damage to the aircraft. We have not changed the AD.

The same commenter asks us to add PWC models PT6A-60AG, PT6A-65AR, and PT6A-65R to the applicability of the AD. The commenter points to the discrepancy in engine models between the proposed AD and the PWC Service Bulletin (SB) PT6A-72-13354, dated July 6, 2001.

We do not agree. Although the SB addresses both propeller governor configurations, this AD only addresses those propeller governors, P/N 8210-212H, that connect to a solenoid valve installed on an airplane. The engine models PT6A-60A and PT6A-65B are installed on airplanes operating with a solenoid valve. The other engine models, incorporating Woodward Propeller Governor, P/N 8210-212J, are installed on airplanes configured with a push-pull rod mechanism. These engine models are not affected by this AD. We have not changed the AD.

One commenter requests that the AD be written against the propeller governor rather than the engine. The commenter states that there is nothing wrong with the engine except when it is used with a particular propeller governor.

We do not agree. Even though there is nothing wrong with either the propeller governor or the engine if isolated from the aircraft system, the propeller governor design is compromised when it operates on aircraft configured with a solenoid valve. Therefore, the combined system level interaction between an aircraft level component (solenoid valve) and the engine level part (propeller governor) makes this AD action necessary. We have not changed the AD.

One commenter requests that both the Air Tractor AT-802A and the CASA C-212-DE aircraft be included in the applicability. The commenter states that the PT6A-65B engine model is installed on these aircraft.

We do not agree. While PT6A-65B engines are installed on these airplanes, the airplanes have a push-pull rod activation mechanism. This AD does not affect those engines. We have not changed the AD.

After we issued the NPRM, we learned that PWC issued P&WC SB No. PT6A-72-13354, Revision 1, dated July 11, 2003. This SB calls out certain PT6A-60 and PT6A-65B engines by engine serial number. We added the affected engine serial numbers to the applicability section of this AD, and changed the reference to the SB in compliance paragraph (f) to P&WC SB No. PT6A-72-13354, Revision 1, dated July 11, 2003.

After we issued the NPRM, the Office of Aviation Policy and Plans changed the average labor rate in the Costs of Compliance from $60.00 to $65.00. We changed the labor rate in the Costs of Compliance to $65.00 and adjusted the total cost to operators.

We have carefully reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously.

There are about 73 PWC PT6A-60A and PT6A-65B turboprop engines of the affected design in the worldwide fleet. We estimate that 70 engines installed on airplanes of U.S. registry will be affected by this AD. We also estimate that it will take about 2 work hours per engine to perform the actions, and that the average labor rate is $65 per work hour. Required parts would cost approximately $24,228 per engine. Based on these figures, we estimate the total cost of the AD to U.S. operators to be $1,705,060. The manufacturer informed us that it might provide the parts and labor to the operators at no cost, substantially reducing the cost impact of this rule.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

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

For the reasons discussed above, I certify that this AD:

(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.

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-NE-09-AD” in your request.

On September 8, 2004, FAA issued AD 2004-23-01, Amendment 39-13856 (69 FR 64832, November 9, 2004), which applies to certain Pilatus Aircraft Ltd. (Pilatus) Model PC-7 airplanes with any Lear Romec RR53710B type or Lear Romec RR53710K fuel booster pump (Pilatus part number 968.84.11.401; 968.84.11.403; or 968.84.11.404) installed.

This AD requires you to check the airplane logbook to determine whether any installed fuel booster pump has been modified with spiral wrap to protect the wire leads and has the suffix letter “B” added to the serial number of the fuel booster pump identification plate.

If any installed fuel booster pump has not been modified, you are required to inspect any installed fuel booster pump wire lead for defects; if defects are found, replace the fuel booster pump with a modified fuel booster pump with spiral wrap that protects the wire leads; or if no defects are found, install spiral wrap to protect any wire leads and add the suffix letter “B” to the serial number of the fuel booster pump identification plate.

The pilot is allowed to do the logbook check. If the pilot can positively determine that the fuel booster pump wire leads with spiral wrap are installed following the service information and that the suffix letter “B” is included in the serial number of the fuel booster pump identification plate, no further action is required.

The FAA incorrectly referenced the amendment number as Amendment 39-13856. The correct amendment number is Amendment 39-13892. This correction is needed to ensure that the amendment number is correct and to eliminate misunderstanding in the field.

The effective date remains December 27, 2004.

The final rule was published on September 17, 2003 and had an effective date of November 17, 2003. One section of the rule cites a compliance date that is 15 months after the publication date of the rule. The date was intended to be 15 months after the effective date. This document corrects that date.

This amendment to part 95 of the Federal Aviation Regulations (14 CFR part 95) amends, suspends, or revokes IFR altitudes governing the operation of all aircraft in flight over a specified route or any portion of that route, as well as the changeover points (COPs) for Federal airways, jet routes, or direct routes as prescribed in part 95.

The specified IFR altitudes, when used in conjunction with the prescribed changeover points for those routes, ensure navigation aid coverage that is adequate for safe flight operations and free of frequency interference. The reasons and circumstances that create the need for this amendment involve matters of flight safety and operational efficiency in the National Airspace System, are related to published aeronautical charts that are essential to the user, and provide for the safe and efficient use of the navigable airspace. In addition, those various reasons or circumstances require making this amendment effective before the next scheduled charting and publication date of the flight information to assure its timely availability to the user. The effective date of this amendment reflects those considerations. In view of the close and immediate relationship between these regulatory changes and safety in air commerce, I find that notice and public procedure before adopting this amendment are impracticable and contrary to the public interest and that good cause exists for making the amendment 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.

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 Federal Civil Penalties Inflation Adjustment Act of 1990 (Public Law 101-410) provided for the regular evaluation of CMPs to ensure that they continued to maintain their deterrent value and that penalty amounts due to the Federal Government were properly accounted for and collected. On April 26, 1996, the Federal Civil Penalties Inflation Adjustment Act of 1990 was amended by the Debt Collection Improvement Act of 1996 (Public Law 104-134) to require each agency to issue regulations to adjust its CMPs for inflation at least every four years. The amendment further provided that any resulting increases in a CMP due to the inflation adjustment should apply only to the violations that occur subsequent to the date of the publication in the Federal Register of the increased amount of the CMP. The first inflation adjustment of any penalty shall not exceed ten percent of such penalty.

On October 24, 1996, and again on November 1, 2000, the Department published in the Federal Register a schedule of CMP adjusted for inflation as required by law. By this publication CMPs are again being adjusted for inflation as prescribed by law.

A civil monetary penalty is defined as any penalty, fine, or other sanction that:

1. Is for a specific monetary amount as provided by Federal law, or has a maximum amount provided for by Federal law; and,

2. Is assessed or enforced by an agency pursuant to Federal law; and,

3. Is assessed or enforced pursuant to an administrative proceeding or a civil action in the Federal courts.

This regulation adjusts the civil penalties that are established by law and assessed or enforced by the Department.

The actual penalty assessed for a particular violation is dependent upon a variety of factors. For example, The National Oceanic and Atmospheric Administration (NOAA) Civil Administrative Penalty Schedule (the Schedule), a compilation of internal guidelines that are used when assessing penalties for violations for most of the statutes NOAA enforces, will be interpreted in a manner consistent with this regulation to maintain the deterrent effect of the penalties recommended therein. The penalty ranges in the Schedule are intended to aid enforcement attorneys in determining the appropriate penalty to assess for a particular violation. Pursuant to the notice published in the Federal Register (59 FR 19160, April 22, 1994), the Schedule is maintained and made available for inspection by the public at specific locations.

The inflation adjustment was determined pursuant to the methodology prescribed by Public Law 101-410, which requires the maximum CMP, or the minimum and maximum CMP, as applicable, to be increased by the cost-of-living adjustment. The term “cost-of-living adjustment” was defined in Public Law 104-34 to mean the percentage for each CMP by which the Consumer Price Index (CPI) for June of the calendar year preceding the adjustment exceeds the CPI for the month of June of the calendar year in which the amount of such CMP was last set or adjusted pursuant to law. For the purpose of computing the inflation adjustments, the CPI for June of the calendar year preceding the adjustment means the CPI for June of 2003.

Public Law 101-410 requires each rounded increase to be added to the minimum or maximum penalty amount being adjusted, and the total is the amount of such penalty, as adjusted, subject to the ten percent limitation provided by Public Law 104-134 for the first adjustments.

It has been determined that this rule is not significant for purposes of Executive Order 12866.

The Department for good cause finds that notice and opportunity for comment is unnecessary for this rulemaking pursuant to 5 U.S.C. 553(b)(B). It is unnecessary to ask for notice and comment because the Debt Collection Improvement Act of 1996 (the Act) required the head of each agency to adjust its civil monetary penalties no later than October 23, 1996, and at least every four years thereafter, and the Federal Civil Monetary Penalty Inflation Adjustment Act of 1990, as amended by the Act, states how to calculate the inflation adjustment, making such adjustments wholly non-discretionary. This rule merely adjusts the Department's CMP according to the statutory requirements. For the same reasons, there exists good cause to waive the thirty day delay in effectiveness of the rule, pursuant to 5 U.S.C. 553(d)(3).

Because notice and opportunity for comment are not required by 5 U.S.C. 553, or any other law, a Regulatory Flexibility Analysis is not required and none was prepared. This rule does not contain information collection requirements for purposes of the Paperwork Reduction Act.

Phoenix Scientific, Inc., 3915 South 48th St. Ter., St. Joseph, MO 64503, filed ANADA 200-382 for veterinary prescription use of Furosemide Syrup 1% in dogs by oral administration for treatment of edema associated with cardiac insufficiency and acute noninflammatory tissue edema. Phoenix Scientific's Furosemide Syrup 1% is approved as a generic copy of Intervet, Inc.'s LASIX (furosemide) Syrup 1%, approved under NADA 102-380. The ANADA is approved as of November 18, 2004, and the regulations are amended in 21 CFR 520.1010 to reflect the approval. The basis of approval is discussed in the freedom of information summary.

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

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

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

An electronic copy of this document may also be downloaded by using a computer, modem and suitable communications software from the Government Printing Office's Electronic Bulletin Board Service at (202) 512-1661. Internet users may also reach the Office of the Federal Register's home page at: http://www.archives.gov and the Government Printing Office's Web page at: http://www.access.gpo.gov/nara.

The FHWA bridge inspection program regulations were developed as a result of the Federal-Aid Highway Act of 1968 (Pub. L. 90-495, 82 Stat. 815) that required the Secretary of Transportation to establish NBIS to ensure the safety of the traveling public.

The 1968 Federal-Aid Highway Act directed the States to maintain an inventory of Federal-aid highway system bridges. The Federal-Aid Highway Act of 1970 (Pub. L. 91-605, 84 Stat. 1713) limited the NBIS to bridges on the Federal-aid highway system. The Surface Transportation Assistance Act of 1978 (Pub. L. 95-599, 92 Stat. 2689) extended NBIS requirements to bridges greater than 20 feet on all public roads. The Surface Transportation and Uniform Relocation Assistance Act of 1987 (Pub. L. 100-17, 101 Stat. 132) expanded the scope of bridge inspection programs to include special inspection procedures for fracture critical members and underwater inspection.

The FHWA published an advance notice of proposed rulemaking (ANPRM) on September 26, 2001, (66 FR 49154) to solicit comments on whether to revise its regulation on the NBIS. The majority of commenters to the ANPRM recommended that the FHWA revise the NBIS regulation.

The FHWA published an NPRM on September 9, 2003, at 68 FR 53063, to solicit public comments on proposed changes to the NBIS. All comments received to the NPRM were carefully considered in the decision to publish a final rule. Commenters included: representatives from 1 Federal agency, 25 States, 44 counties, 9 cities, 1 Indian tribal government, 4 consulting firms, the American Association of State Highway and Transportation Officials (AASHTO), the Association of Diving Contractors International (ADCI), the Illinois Association of County Engineers (IACE), the National Association of County Engineers (NACE) and 3 private citizens.

The following summarizes the comments submitted to the docket by the commenters on the NPRM, notes where and why changes have been made to the rule, and why particular recommendations or suggestions have not been incorporated into the following regulations. Paragraph references are as designated in the NPRM, unless otherwise stated.

In general, comments received to the NPRM provided both support for and opposition to the proposed changes. A number of commenters were concerned about the cost of the proposed changes versus the benefit and impact on bridge safety. Other commenters believed that the proposed regulation would help strengthen and improve the nation's bridge inspection program. Some commenters argued that there were still areas of ambiguity. Other commenters noted we had achieved our objective of addressing ambiguities in the current NBIS regulation. Commenters provided a lot of very good suggestions that have been considered in the final rule.

The FHWA did not receive any comments that specifically addressed this section.

The Missouri and Massachusetts DOTs agreed that the NBIS apply only to highway bridges.

The Illinois and Oklahoma DOTs as well as the AASHTO asked that definitions of “public road” and “highway bridge” be included to further clarify applicability. The Oregon DOT and the U.S. Navy also wanted to include a definition for “highway bridge.”

FHWA response: The terms “public road” and “highway” are already defined in 23 U.S.C. 101. We added to the list of definitions in § 650.305 a reference to the existing definitions for “public road” and “highway.”

The Iowa DOT pointed out that the AASHTO Manual for Condition Evaluation of Bridges  1 (hereinafter referred to as the AASHTO Manual) includes bridges that carry pedestrians and other non-highway passageways and that the NBIS needs to be very clear that it does not apply to these structures.

FHWA response: As clearly stated in § 650.303, the NBIS apply only to “highway bridges” located on “public roads.” The AASHTO Manual may discuss other non-highway passageways; however, these bridges are not covered under the NBIS.

Collins Engineers and the U.S. Navy were concerned regarding the inspection of pedestrian and railroad bridges and potential threat to travelers on public highways. Likewise, Collins Engineers was concerned about privately owned bridges used by the motoring public.

FHWA response: Some confusion has existed about the applicability of the NBIS to privately owned highway bridges. While 23 U.S.C. 151 states that the NBIS are for all highway bridges, the FHWA has no legal authority to require private bridge owners to inspect and maintain their bridges. While the FHWA does not have the authority to compel the States to inspect privately owned highway bridges, the FHWA strongly encourages that private bridge owners follow the NBIS as the standard for inspecting privately owned highway bridges. Because of the seamless nature of the transportation infrastructure within many States, the motoring public does not know the difference between a privately owned and publicly owned highway bridge. Therefore, States should encourage private bridge owners to inspect their highway bridges in accordance with the NBIS or reroute any public highways away from such bridges if NBIS inspections are not conducted.

The National Bridge Inventory (NBI) lists roughly 2,200 privately owned highway bridges in some 41 States and Puerto Rico. However, the total number of privately owned highway bridges is unknown because the States are not required to report them to the FHWA. Many privately owned highway bridges can be assumed to carry public roads, some of which could be significant highways. The FHWA does not know if privately owned highway bridges are inspected using the NBIS or other standard and the FHWA does not know the level to which privately owned highway bridges are maintained.

Public authorities must follow the NBIS for all highway bridges located on all public roads. The term “public road” is defined in 23 U.S.C. 101(a)(27) as “any road or street under the jurisdiction of and maintained by a public authority and open to public travel.” The NBIS applies to seasonally or periodically opened public roads and to limited access public access roads.

Highway bridges owned by Indian tribes are in a separate category. Indian tribes, as sovereign nations, have a unique government-to-government relationship with the Federal government. There is no explicit requirement in 23 U.S.C. 144 that requires inventory of tribally owned bridges. Likewise, there is no explicit requirement in 23 U.S.C. 151 that requires inspection of tribally owned bridges. Absent such clear language, the FHWA has no legal authority to require federally recognized Indian tribes to inventory tribally owned bridges or to comply with the NBIS. On the other hand, in order for tribally owned bridges to participate in the Indian Reservation Road Bridge Program (IRRBP)  2 and be eligible for Federal funding, a tribally owned bridge has to be inspected and placed in the NBI. Hence, for purposes of this rule, tribally owned bridges mean those bridges designed and constructed to FHWA standards, meeting the NBIS definition of a bridge, and open to the public. Finally, the FHWA strongly encourages that Indian tribes follow the NBIS, as the standard for inspecting tribally owned bridges, particularly those open to public travel ( see 23 U.S.C. 151 for the statutory requirement for the National bridge inspection program).

The FHWA recognizes that the NBIS does not apply to federally owned bridges on roads that are used only by employees and not open to the general public. These bridges and administratively used roads support behind-the-scenes operations and are intended for use by employees engaged in official business.

The NBIS does not apply to tunnels, bridges that carry only pedestrians, railroad tracks, pipelines, or other types of non-highway passageways. Public authorities or bridge owners are strongly encouraged to inspect these non-highway carrying bridges and other significant structures. Similarly, the NBIS does not apply to the inspection of sign support structures, high mast lighting, retaining walls, noise barriers structures, and overhead traffic signs. Public authorities have an obligation to the motoring public to periodically inspect and maintain these facilities. Non-public authorities including utility companies, railroads, and private owners who may own these facilities, are strongly encouraged to periodically inspect and maintain their structures for the safety of the motoring public.

There are some minimal NBI data items that are collected for highway tunnels and non-highway bridges over certain highways that can be collected without trespassing on private property. These items are described in the “Recording and Coding Guide for the Structure Inventory and Appraisal of the Nation's Bridges.”  3

The Chickasaw Nation commented that it agreed that tribally owned bridges are not subject to 23 U.S.C. 144 explicitly, however; if a tribally owned bridge is planned for replacement with Federal funds such as IRRBP funds, 4 then an inspection must be conducted. It also cautioned against considering tribally owned bridges not subject to the NBIS when many tribes consider all Indian Reservation Road (IRR) routes and bridges that fall within Indian lands to be tribally owned with right of way granted to the Bureau of Indian Affairs. It indicated that all bridges that fall on an IRR to be public regardless of ownership.

FHWA response: As stated previously, one of the requirements for participation in the IRRBP and eligibility for Federal funding is for the bridge to be recorded in the NBI maintained by the FHWA (see 23 CFR 661.25). In order for this to occur the bridge has to be inspected regardless of ownership. Therefore we agree that a tribally owned bridge needs to be inspected and placed in the NBI in order to obtain Federal funding via the IRRBP. For purposes of this rule, tribally owned bridges mean those bridges designed and constructed to FHWA standards, meeting the NBIS definition of a bridge, and open to the public. This rule addresses the responsibility for bridge safety inspections. It does not provide or intend to address ownership or jurisdictional issues of bridges on Indian reservations.

The Massachusetts, South Dakota and Tennessee DOTs were in favor of including a definition section.

The South Dakota DOT wanted clarification of what is meant by “major flood event,” “critical finding,” and “predominant bridge inspection experience.” The Tennessee DOT wanted to know what “critical finding” means as used in the proposed § 650.313(l).

FHWA response: We added a definition for “critical finding.” A definition for “major flood event” is not required since the term has been removed from the regulation. We believe that the definition for “bridge inspection experience,” which includes the statement that “the predominate amount” of experience be “bridge inspection,” adequately addresses the intent that a preponderance of the experience for qualification should come from other than bridge design, bridge maintenance or bridge construction experience.

The Kansas DOT wanted the NBIS to either define, replace or eliminate the following terms: “public road,” “highway bridge,” “professional engineer,” “predominant and substantial,” “80 hours,” “damage inspection,” and “routine permit inspection.”

The Iowa and Kansas DOTs as well as the AASHTO each recommended that the definition for “damage inspection” be changed. The Illinois DOT proposed a definition for “damage inspection.”

The Missouri DOT indicated a preference for retaining the current definition for a “bridge.” The Iowa DOT recommended a change in the first sentence of the “bridge” definition deleting reference to “other moving loads.”

The Kansas DOT and the AASHTO did not like the 80-hour requirement used in the definition for “comprehensive bridge inspection training.” The Kansas DOT was also concerned about its impact on local agencies being able to find qualified consultants with this level of training.

The Iowa DOT as well as the AASHTO recommended inclusion of the term “professional engineer” within the NBIS.

The New Jersey DOT wanted to include a definition for “public road.”

The Washington DOT wanted the term “public authority” defined in the NBIS.

The Wyoming DOT commented that the NBIS should clearly identify whether it applies to “privately owned bridges,” those located on seasonally opened roads, and those with limited access.

FHWA response: Definitions have been added for “professional engineer” and “damage inspection.” The definition from the AASHTO manual for “damage inspection” that was proposed by the Illinois DOT has been adopted. The terms “80 hours,” “substantial,” “routine permit inspection,” and “public authority” will not be used in the regulation. The term “predominate” will continue to be used in the definition of bridge inspection experience as explained above. The terms “highway” and “public road” are already defined in 23 U.S.C. 101 (a) (11) and (27), respectively. Since the U. S. Code takes precedence over regulations, we reference 23 U.S.C. for the definitions for highway and public road. These definitions will be cited in § 650.305.

We will continue to use the AASHTO definition for “bridge,” an action supported by the majority of commenters. The FHWA adopted the AASHTO definition for “bridge” early in the National Bridge Inspection Program. Title 23, U.S.C., section 151 directed the Secretary to establish national bridge inspection standards in consultation with the State transportation departments and interested and knowledgeable private organizations and individuals. Consultation with the State transportation departments through the AASHTO Highway Subcommittee on Bridges and Structures, convinced the FHWA to adopt the AASHTO definition of bridge that has been used since the NBIS was first drafted.

The ADCI wanted the NBIS to include Occupational Safety and Health Administration (OSHA) regulation requirements when diving operations are conducted. The ADCI also commented that a definition for OSHA Safety Standards for Commercial Diving Operations be included in the NBIS. The ADCI also recommended that the term “designated diving supervisor” be included with the definitions along with a revised definition for underwater inspection to indicate diving operations shall be completed in accordance with OSHA regulations.

FHWA response: The FHWA believes that safe diving practices as prescribed by OSHA regulations should be employed during all bridge inspection diving, but we do not reference them. OSHA regulations pertain to both underwater and above-water inspections, so any omission in this standard does not relieve diving inspectors of the requirement to follow OSHA regulations.

The term “designated diving supervisor” is not used in the regulation and will not be included in the definition section.

The Tennessee DOT provided commentary and questions regarding the use of the terms “action plan” and “inspection plan.”

FHWA response: The Tennessee DOT points out that these terms are used throughout the regulation and that their intent should be clear and consistent. Where these terms are used, we have made changes to clarify their meaning, or we have removed them. Refer to the preamble discussion of § 650.313.

The AASHTO and Kansas DOT indicated that the word “and” was missing in the AASHTO title.

FHWA response: We agree and have made this change.

The Massachusetts, Minnesota, Kansas, Michigan, Iowa, and Arkansas DOTs along with the AASHTO asked for a more precise definition of the terms used in the definition for “bridge inspection experience.” The IACE discussed the impact of this definition on inspections performed by local agencies.

FHWA response: We have reviewed the definition of “bridge inspection experience” and made minor changes to address these comments. We noted that this definition is adequate to convey the minimum requirements for experience to assure that inspectors are qualified.

The New Jersey, Minnesota and Tennessee DOTs wanted clarification of the term “complex bridge.”

FHWA response: The definition gives the States latitude to determine which bridges should be placed in this category and receive special attention. Including complex bridges in § 650.313 captures the intent in the AASHTO Manual that some structures deserve special attention. Cable stayed bridges, suspension bridges, and movable bridges require specialized procedures. The bridge inspection program manager, as defined in § 650.305, may determine that other bridge types require special attention.

The Michigan DOT recommended defining the term “fatigue sensitive” to distinguish from the term “fracture critical.”

FHWA response: Since the term “fatigue sensitive” refers to steel members or details that may or may not be part of a load-path redundant system, and since this term is not used in the regulation, we have not added a definition to § 650.305.

The Iowa DOT recommended that “fracture critical inspection” be changed to “fracture critical member inspection.” It also provided some commentary on the use of the term “hands on” in this definition and made some suggestions to modify the definition. The Minnesota and Oregon DOT were concerned about the definition for “fracture critical member” and recommended that it be rewritten.

FHWA response: The term “fracture critical” is consistent with the AASHTO Manual. The term “fracture critical member inspection” will be used in the regulation. The intent is to give special attention to member or member components in spans that do not have load path redundancy.

The IACE, Michigan and Iowa DOTs commented that the definition for “hands-on” inspection should be modified using “may be supplemented by nondestructive testing” instead of “are supplemented by nondestructive testing.”

The Iowa DOT recommended that the definition for “in-depth inspection” be modified to note that “hands on inspection may be necessary” but not mandatory.

FHWA response: The second sentence of the definition for “hands-on” has been modified by changing “are” to “may be” so that nondestructive testing is not a requirement of hands-on inspection. The definition for “in-depth inspection” has been modified to note that hands-on inspection may be necessary at some locations.

The Michigan DOT provided a discussion and questions regarding initial inspection. Their discussion states that the definition should include the term “routine inspection procedures” and require timelines for ratings. Collins Engineers commenting on § 650.311(a)(1) pointed out that the depth of routine, biennial inspections varies greatly and recommended a change reflecting that routine inspections be performed hands-on.

FHWA response: We have adopted the definitions for inspection types including “initial” and “routine” that are consistent with the AASHTO Manual.

The Indiana and Maryland DOTs provided commentary and suggested that the definition and role of the “program manager” needs clarification.

FHWA response: The Indiana DOT's concern is that the definition allows more than one program manager. That is a correct assessment of our intent. We do not want to restrict those States that want to have more than one program manager. However, the FHWA desires one individual with overall responsibility for § 650.307(c)(1) and (2). The Maryland DOT wants the definition changed to “eliminate the need for any small local jurisdiction to require fully trained individuals.” A qualified team leader must be present for each initial, routine, in-depth, fracture critical member and underwater inspection, regardless of the jurisdiction, and a program manager must be available to provide overall direction to team leaders. The program manager definition in § 650.305 has been revised and the role clarified in § 650.307.

The Arkansas DOT wanted the term “responsible capacity” defined in the NBIS.

FHWA response: We have removed this term from the regulation.

The Iowa, Kansas and Washington DOTs as well as the AASHTO recommended that the definition for “legal load” be modified.

FHWA response: This definition allows the States the flexibility to use their own legal loads, established in State law.

The Illinois, Kansas, and Wisconsin DOTs and the AASHTO recommended changes for the definition “routine permit load.”

FHWA response: We have amended the definition in § 650.305 to reflect these recommendations.

The Texas and Oklahoma DOTs recommended that the definition for “scour critical” be modified.

FHWA response: We have considered the comments on this topic and have provided a definition for “scour critical bridge.” The NBI item number 113, scour critical bridge, is used to identify the current status of a bridge regarding its vulnerability to scour.

The observed scour condition is one determined during a bridge inspection, or during/after a flood event. A conclusion of instability would typically be attained by comparing the observed scour condition with: (a) The known foundation type and tip elevation, and (b) computed scour critical elevation as determined by an interdisciplinary team.

The evaluated scour condition is one determined by: (1) An assessment of the bridge information available such as foundation type and tip elevation; location of the bridge; review of bridge inspection files; comparison of channel profiles upstream of the bridge, within the bridge opening and downstream of the bridge; soil type; historical data from other bridges on an adjacent stream, and/or (2) a calculation to determine potential scour around the bridge foundation and/or stream instability in the vicinity of the bridge.

The Washington DOT recommended that the NBIS include a definition for “State transportation department.”

FHWA response: The term “State transportation department” is already defined in 23 U.S.C. 101(a)(11).

The Missouri DOT wanted clarification that in § 650.307(a) States are relieved of responsibility for federally owned bridges. The Kansas DOT indicated it is having problems obtaining data on federally owned bridges. The AASHTO suggested that supplying Federal bridge data is waived for Federal agencies.

FHWA response: States are no longer responsible for reporting inspection data on Federal bridges to the FHWA. Federal bridge owners report inspection data directly to the FHWA. The FHWA supplies Federal bridge inspection data to the States. For security and other purposes, the States should have an up-to-date inventory of Federal bridges located within each State.

The Michigan and Iowa DOTs in response to § 650.307(a) argued that public authorities and/or bridge owners should be responsible for bridge inspections and not the State. The Washington DOT noted that the majority of county and city bridges are inspected by their owners.

FHWA response: The present bridge inspection standards regulation requires the States to have a bridge inspection organization capable of performing the bridge inspections (23 CFR 650.303(a)). The part of the regulation that requires the actual inspection of all bridges on public roads (§ 650.305(a)) is written in the passive voice. Consequently, there might be some confusion as to who is responsible for inspecting each highway bridge in a State.

The FHWA believes, however, that the language of 23 U.S.C. 151 is clear that a State is ultimately responsible for the inspection of public highway bridges within the State, except for those that are federally owned or tribally owned. Subsection (a) of section 151 directs the Secretary, “in consultation with the State transportation departments and interested and knowledgeable private organizations,” to establish the bridge inspection standards for “all highway bridges.” In subsection (b) the Congress mandates that the standards shall, at a minimum, “specify, in detail, the method by which such inspections shall be carried out by the States.” The final rule clears up any ambiguity caused by the existing regulation.

The State DOT can delegate to a smaller unit of the State, for example, a city or county, the inspection of bridges owned or controlled by that unit. A State can direct smaller State units to conduct the NBIS inspections on bridges under its control and that would satisfy § 650.307. However, because of the fundamental relationship established in title 23 of the U.S. Code between the FHWA and a State DOT, if the inspections by a city or county were not done, the FHWA could withhold Federal-aid highway funds from the State.

The NACE commented on § 650.307(a) and asked why counties have to complete inspections using their own funds.

FHWA response: Federal Bridge Funds ( i.e. , Highway Bridge Replacement and Rehabilitation Program (HBRRP) funds) can be spent on bridge inspection activities, regardless of the agency performing the inspections. The use and distribution of HBRRP funds within the State is within the State's discretion.

The Wyoming DOT commented on § 650.307(c)(1) that all references to “quality assurance (QA)” be removed.

FHWA response: In the past, the FHWA addressed QA as part of a nonregulatory supplement to the Federal-aid program guide. QA is also addressed in the AASHTO Manual. Many States currently have active QA programs; some do not. The FHWA believes that it is imperative that a statewide or Federal agency wide QA program be in place to assure that bridge inspections are being conducted in accordance with these standards and to assure the quality of inspection data. We have included a definition of quality control (QC) and QA to reflect this in § 650.305.

The Washington DOT had a question regarding § 650.307(c) for acceptable roles of consultants based on the discussion in the preamble to the NPRM.

FHWA response: Consultants may perform § 650.307(c)(1) and/or (2) activities and functions. To ensure that all NBIS requirements are met, the State still needs a program manager, even when paragraph (c)(1) activities are performed by consultants.

The California DOT supports the changes contained in § 650.307(c).

The ADCI wanted to amend § 650.307(c) to add requirements for bridge inspection organizations to conduct dive operations in a safe manner by establishing dive team member qualifications and training for the conduct of safe diving operations that meet or exceed OSHA standards.

FHWA response: This comment was previously addressed in the discussion of § 650.305 regarding diving operations meeting or exceeding OSHA standards.

The Hillsdale County Road Commission (HCRC) in Michigan, commented that § 650.307(d) may enable the State to perform inspections of county bridges and was concerned about what will be charged and whether control will be lost regarding bridge postings.

FHWA response: States have always had the responsibility for inspections under the NBIS. Delegation of the NBIS functions to counties and other local agencies is a State issue.

The Missouri, Illinois, Kansas, and Michigan DOTs as well as the AASHTO commented on § 650.307(d) and the ramifications of entering in agreements with local agencies, stating such agreements should not be part of the NBIS. The Indiana DOT indicated that it would need additional resources ( i.e. , funding) in order to comply with this section and stated that the intent of clearly defining responsibilities was good, but did not require a regulatory change. The Illinois DOT and the IACE maintain that local agencies and the State have excellent working relationships and need no agreements or State statutes. The New Jersey DOT expressed concern that this section might be interpreted to mean that bridge inspections are discretionary and may limit delegation to public authorities. The Minnesota DOT suggested a rewrite to this section to indicate that delegation does not relieve the State of program oversight or quality assurance. The Alabama DOT commented that the FHWA should “acknowledge that States may delegate NBIS requirements (not responsibilities) in accordance with any laws, regulations or policies that the States may have in effect.” The California DOT supported the proposed change. The Marshal and Miami Counties in Kansas indicated that the States should be responsible to assure compliance and delegation should be by written agreement. The Miami County in Kansas further commented that the consequences of not following the NBIS should be strongly stated. Thirty-seven Kansas counties, seven Kansas cities, and one Kansas consultant commented that they did not want written agreements that were proposed in § 650.307(d) and that local agencies currently have a good working relationship with the State.

FHWA response: The FHWA has reconsidered its position on written agreements after reviewing the many comments provided. The proposed requirement that delegation must be according to State law or fully executed written agreements has been removed. However, State transportation departments are encouraged to use formal means in delegating these activities and it is essential that all parties involved have a clear understanding as to what requirements are and are not being delegated. The State is still ultimately responsible for the inspection of public highway bridges within the State, except for those that are federally owned or tribally owned.

The Indiana DOT, in response to § 650.307(e), stated it would need additional resources ( i.e. , funding) in order to comply with this section and argued that it did not require a regulatory change. The Illinois, Alabama, Kansas, Michigan and Oregon DOTs as well as the AASHTO were concerned regarding proposed language related to the requirement for “program manager.”

The Illinois DOT noted that many local agencies use consulting engineers and that the rule change prohibits “program managers” from being consultants. The NACE stated that program manager guidelines are sufficient; however, the expectation that the same experience be required of a town with one bridge is not practical. The Marshal County in Kansas commented that delegated authorities be allowed to hire consultants to act as “project” managers. The Iowa DOT commented that § 650.307(e) qualification standard would place more education, training and experience requirements onto the counties and cities. Thirty-seven Kansas counties, seven Kansas cities, and one Kansas consultant commented that local agencies should continue to have the option to hire a consultant to handle inspections. The Alcona County Road Commission (ACRC) in Michigan commented that program manager requirements applying to towns with only one bridge is cause for serious local agency concern and requires further discussion.

FHWA response: The FHWA has reconsidered its position regarding each organizational unit being led by a program manager. The program manager qualification requirement applies to the overall State or Federal agency program level. Each State transportation department or Federal agency is only required to have one statewide or Federal agency wide program manager. Applying the program manager requirement to organizational sub-units or delegated agencies is at the discretion of the State or Federal agency. However, State transportation departments remain responsible for the application of these standards to all highway bridges, even when inspections or other requirements are delegated. For this reason, State transportation departments should be cautious when delegating inspections or other requirements to local agencies that do not have a qualified bridge inspection program manager. In such cases, as in the example of the small town with one bridge and no qualified program manager, the State will assume a direct program manager role in the delegated inspection program.

Qualified consultants may be hired or contracted by State transportation departments, their delegated agencies, and Federal agencies to perform the activities and functions of these standards. However, to ensure that all of the requirements of these standards are met, the States or Federal agencies still need a program manager, even when consultants perform § 650.307(c)(1) activities and functions.

The Missouri DOT commented relative to § 650.309 (a)(1), that the NBIS should not specify the discipline of the professional engineer and that the States or Federal agencies can elect to adopt even more specific requirements. A private citizen noted that the professional engineer discipline should be specified as structural, and, that too much emphasis was placed on the professional engineer title rather than the amount and extent of experience and training. The New Jersey DOT stated that the program manager should be required to have field experience.

FHWA response: Our position remains as stated in the preamble to the NPRM that the laws governing licensure within each State or Federal agency ensure that professional engineers only practice engineering in the fields in which they are qualified and experienced. Furthermore, the State or Federal agency is responsible for ensuring that those individuals involved in the bridge inspection program meet the minimum qualifications defined in the NBIS. Although the regulations do not specify the engineering discipline of the professional engineer, individual States or Federal agencies can adopt requirements that are more stringent than the minimum requirements established by the NBIS.

The FHWA agrees that additional emphasis on training is needed. Recommendations from the June 2001 FHWA study of the “Reliability of Visual Inspection for Highway Bridges”  5 also support the need for further emphasis on training. Accordingly, the regulation includes comprehensive training and refresher training requirements for program managers and team leaders.

The South Dakota DOT indicated that they have a professional engineer exemption within their State and asked how the FHWA would address this issue.

FHWA response: Section 650.309 (a)(1) allows two ways of qualifying as a program manager, one of which is being a professional engineer. In those instances where the State exempts its staff from registration requirements, a program manager would have to either be a professional engineer, despite the exemption for State government employees, or have 10 years of bridge inspection experience.

Mr. Todd Hertel commented on § 650.309(a)(2), asking why the program manager is given 12 months to complete training and not the team leader.

FHWA response: Ideally, an individual will have completed the comprehensive bridge inspection training prior to becoming a team leader or program manager. Exceptions to this should be rare. In recognition of the fact that some flexibility is needed to accommodate employee turnover and scheduling of the training, we have removed the 12-month time frame from § 650.309(a)(2). As stated above, the expectation is that individuals will complete the comprehensive training prior to becoming program managers or team leaders. When this is not possible, those individuals will aggressively seek to obtain the training as soon as possible, preferably within 12 months of becoming a program manager or team leader. Prior successful completion of the FHWA approved comprehensive bridge inspection training is acceptable for individuals serving as program managers and team leaders at the time this regulation becomes effective.

The HCRC in Michigan asked if a county engineer would still be qualified to administer the county program that is performed by a consulting firm and if small consulting firms would be able to adhere to these personnel requirements.

FHWA response: The roles and responsibilities of a program manager have been clarified in § 650.307. The qualifications for a program manager or team leader apply regardless of the individual's employer, i.e. , State, county, city, consulting firm, etc.

The Missouri, Illinois, Maryland, Minnesota, Kansas, and Virginia DOTs as well as the AASHTO and the IACE in commenting on § 650.309(a)(2) do not agree with the requirement for “comprehensive bridge inspection training” for program managers particularly those who are professional engineers. The Massachusetts, South Dakota and California DOTs support the requirement for “comprehensive bridge inspection training” for program managers. The Pennsylvania DOT recommended that those currently serving as program managers be exempted from the comprehensive training requirement and that nonprofessional engineers should not be program managers. The IACE and the NACE stated that the “comprehensive bridge inspection training” would be burdensome on local agency resources. Thirty-six Kansas counties, six Kansas cities, and two Kansas consultants commented on the proposed § 650.309(a) that local agencies should continue to have the option to hire consultants to handle inspections, with the professional requirement for the program manager, but not the comprehensive training requirement.

FHWA response: The FHWA's position on comprehensive bridge inspection training for program managers has not changed from the previously proposed § 650.309(a)(2). We agree with the majority of commenters to the ANPRM, who were in favor of establishing training and experience requirements for the individual in charge of the bridge inspection program. A program manager needs to be thoroughly familiar with bridge inspection terminology and techniques along with data collection practices and procedures in order to ensure the consistency and reliability of the bridge inspection program. Completion of the same comprehensive training as required for team leaders is one method of addressing the consistency and reliability issues. These issues apply regardless of the program manager's experience level or professional engineer status.

We have clarified the roles and responsibilities of the program manager in part to address the concerns expressed by several localities regarding the burden imposed by the training requirement.

The current comprehensive training course offered by the National Highway Institute (NHI) is not the only option available. A few States have developed their own comprehensive training and certification programs. In recognition of the need to retain this flexibility, States or Federal agencies are permitted to develop their own “comprehensive inspection training” programs subject to approval by the FHWA. The FHWA will use the “comprehensive bridge inspection training” definition and the “Bridge Inspector's Reference Manual (BIRM)”  6 as criteria to apply when reviewing these programs. In addition, the NHI course material  7 is available for those who wish to deliver the training using their own resources.

Regarding the FHWA approval of comprehensive training proposals, it is anticipated that the local FHWA Division office, in consultation with the FHWA Headquarters Office of Bridge Technology, will review and approve proposals from the States. The FHWA Headquarters Office of Bridge Technology will review and approve submittals from Federal agencies.

The South Dakota and Virginia DOTs and Mr. Todd Hertel commented on § 650.309(b)(2)(i) asking what is meant by a bachelor's degree in “professional engineering” and recommended that it should say bachelor's degree in engineering.

FHWA response: The FHWA has reconsidered its position and has deleted the word “professional.”

The New Jersey and Massachusetts DOTs commented on § 650.309(b)(2)(i) and noted that the engineering specialty is too vague and needs to be specified. The Massachusetts DOT stated that a bachelor's degree in civil, structural or related engineering discipline that provides a background in structural analysis should be included.

FHWA response: The FHWA's position is that at a minimum, an individual with a bachelor's degree in engineering who has successfully completed the National Council of Examiners for Engineering and Surveying Fundamentals of Engineering examination and obtained two years of bridge inspection experience, would qualify as a team leader regardless of the specific discipline of the bachelor's degree. Although the phrase “bachelor's degree in engineering” is not specific to the discipline of engineering, individual States or Federal agencies can adopt requirements that are more stringent than the minimum established by the NBIS.

The New Jersey DOT commented on § 650.309(b)(2)(i) and indicated that engineers educated at foreign universities would not comply with the accreditation board requirement.

FHWA response: The Accreditation Board for Engineering and Technology (ABET) evaluates institutions outside of the United States. The evaluation is not the same as accreditation; however, an ABET evaluation can result in an assessment of “substantial equivalency.” The “substantial equivalency” determination implies reasonable confidence that the foreign institution's program has prepared its graduates to begin professional practice at the entry level. Information on the substantial equivalent programs, including a list of programs that have been assessed by ABET, is available at http://www.abet.org/international/sub_equ_prg1.html.

Additionally, in 1989, several countries including the United States entered an international agreement known as the “Washington Accord” which recognizes the substantial equivalency of engineering programs accredited by these countries. The accord further recommends that graduates of accredited undergraduate programs in any of the signatory countries be recognized by the other countries as having met the requirements for entry into the practice of engineering. Additional information, including a list of signatory countries, may be obtained at http://www.washingtonaccord.org.

In consideration of international engineering education programs, the regulation has been revised to reference the substantial equivalency options available through the ABET.

Mr. Todd Hertel commented on § 650.309(b)(2)(ii) and wanted to know why the engineer-in-training (EIT) is a requirement. The Miami County in Kansas commenter agreed with all provisions of § 650.309 especially the addition of an EIT as a team leader with two years experience. The Wyoming DOT and Mr. Jerry Fowler, private citizen, stated that the proposed qualifications for “team leader” were too stringent. The Illinois and Kansas DOTs, the IACE, and the AASHTO noted that §§ 650.309(b)(1) through 650.309(b)(4) were required for “team leaders”; however a team leader only needs to meet one of the qualifications, not all. The Maryland DOT stated that professional engineer team leaders with five years experience could be “grandfathered” with respect to the comprehensive training requirement. The Iowa DOT commented that the requirements of § 650.309(b) would place more education, training and inspection experience requirements onto counties and cities. The Pennsylvania DOT agreed with the proposed § 650.309(b); however, it argued that States with a rigorous training and certification program for inspectors should be allowed to substitute an acceptable combination of education, experience and training for the requirements in this section.

FHWA response: The EIT is not a requirement. It is a component of one of the options available for qualification as a team leader under § 650.309(b). The team leader requirements resulted in confusion among several commenters. Accordingly, the FHWA clarified the wording under § 650.309(b) and re-ordered the subparagraphs.

The FHWA's position on comprehensive bridge inspection training for team leaders has not changed from the previously proposed § 650.309(a)(2). We believe that an individual in a team leader position needs to be thoroughly familiar with bridge inspection terminology and techniques along with data collection practices and procedures regardless of the team leader's experience level or professional engineer status. With respect to “grandfathering” current team leaders who are professional engineers but have never completed comprehensive bridge inspection training, the expectation is that those individuals will aggressively seek to obtain the required training as soon as possible, preferably within 12 months of the effective date of this regulation. Prior successful completion of the FHWA approved comprehensive bridge inspection training is acceptable for individuals serving as team leaders at the time this regulation becomes effective.

As indicated in a previous response, the current comprehensive training course offered by the National Highway Institute is not the only option available. A few States have developed their own comprehensive training and certification programs. In recognition of the need to retain this flexibility, States and Federal organizations are permitted to develop their own “comprehensive inspection training” programs subject to approval by the FHWA. The FHWA will use the comprehensive bridge inspection training definition and the “Bridge Inspector's Reference Manual (BIRM)” as criteria to apply when reviewing these programs. In addition, the National Highway Institute course material is available for those who wish to deliver the training using their own resources.

The FHWA acknowledges the Pennsylvania DOT comment, that there are acceptable alternative combinations of education, experience and training for the requirements of “team leader.” Accordingly, we added § 650.309(b)(5) to provide another option to qualify as a team leader.

The Iowa DOT and the AASHTO commented on § 650.309(b)(3) as it relates to “bridge inspection experience” and noted that the term “predominant” used in the definition for this phrase be replaced with the word “substantial.” Mr. Todd Hertel commented that a “year's experience” is not defined.

FHWA response: The FHWA recognizes that there are many factors involved in evaluating an individual's bridge inspection experience level. We believe that the definition for “bridge inspection experience,” which includes the statement that “the predominate amount” of experience be “bridge inspection,” adequately addresses the intent that a preponderance of the experience for qualification should come from other than bridge design, bridge maintenance or bridge construction experience.

The New Jersey DOT commented on § 650.309(b)(4) indicating that the regulation should mandate that a team leader with a professional engineer license should have experience in the field in which they are practicing.

FHWA position: We believe that the laws governing licensure within each State or Federal agency ensure that professional engineers only practice engineering in the fields in which they are qualified and experienced. The process for obtaining a professional engineer license involves a requirement for a minimum number of years of engineering experience. It is the State or Federal agency's responsibility to ensure that the experience that qualified the individual for professional engineer status is relevant to bridge inspection activities. In addition, although the regulations do not specify a field inspection experience requirement for a team leader who is a professional engineer, individual States or Federal agencies can adopt requirements that are more stringent than the minimums established by the NBIS.

The Missouri, Illinois, South Dakota, Alabama, and Pennsylvania DOTs agreed with the requirement in the proposed § 650.309(c). The Maryland DOT indicated that the term “determining” should be changed to “certifies” or “reviews and approves.” The South Dakota DOT is concerned regarding the impact of the South Dakota exemption for State government professional engineers on this section. The Kansas DOT commented that a “structural engineer” might function in some States as the “professional engineer.” The Illinois DOT and the AASHTO provided language addressing the State of Illinois use of “structural engineers” as a “professional engineer” specialty used to perform structural evaluations.

The Virginia DOT did not agree with the proposed language and stated that a professional engineer license should not be required to fill out a computer data input form. The Pennsylvania DOT commented that responsibility for this individual should also include load-posting evaluations.

FHWA response: Bridge load rating calculations require engineering judgment in determining the safe load-carrying capacity of a bridge and arriving at posting and permitting decisions. Given the importance of these calculations, the person charged with the overall responsibility for load rating bridges should be a professional engineer. The licensing laws require that the professional engineer only practice engineering in areas where he/she is qualified and experienced. Although the discipline of the professional engineer is not specified in the regulation, States or Federal organizations may opt to require a more specific professional engineer discipline, such as structural engineering.

In some organizational structures, the overall responsibility for load ratings may rest with the program manager. In others, there may be several individuals responsible for determining load ratings, in which case each would have to be a professional engineer. The intent is not to require a professional engineer qualification for individuals who simply enter data into load rating computer programs, but rather require that the person(s) who provides the necessary engineering judgment and reviews and approves the actual load rating result be a professional engineer.

The posting of load restrictions on bridges is based in part on the load rating values provided by a professional engineer. As long as a professional engineer has accepted the load rating calculation, the FHWA does not see a need to require a professional engineer to make the posting decision as well. Again, a State or Federal agency may opt to require that the person responsible for load posting be a professional engineer.

The Massachusetts DOT and the U.S. Navy commented that they were in favor of bridge inspection refresher training. The Pennsylvania DOT strongly supports refresher training of inspectors and team leaders every two years with exams; however, they recommended that the “refresher course” should be defined in the NBIS. Mr. Michael Magner, private citizen, indicated that in order to keep his National Institute for Certification in Engineering Technologies (NICET) certification he must document continuing education and experience every four years; therefore, he agrees with not only continuing training but also certification. The Wisconsin DOT does not agree with the proposed § 650.309(d), however; it believes in the concept of refresher training and that it should be left up to the State to determine frequency, content, and duration.

The Missouri DOT does not agree with the proposed § 650.309(d) for program managers and opposes the refresher training requirement for team leaders; however, it recognizes some merit to refresher training if there has been a lapse in conduct of inspections of 2 or more years.

The Indiana DOT agrees that the intent of refresher training is good; however, the costs and logistics involved in executing this requirement would place a strain on State resources. The Wyoming DOT commented that this refresher training should not be a requirement for program managers, but should be required of team leaders as long as the training can be performed in-house. The Illinois DOT commented that because of the costs associated with refresher training they were reluctant to mandate this requirement especially for professional engineers.

The Minnesota DOT noted that the term “refresher training” is undefined, and as such may be overly burdensome and expensive and recommends that it be advisory and not mandatory. The Kansas DOT commented that training costs are significant and that they have no need for refresher training. The Washington DOT noted that the extent of refresher training needs clarification and that those who work full time in the inspection arena under an FHWA approved quality assurance program be exempted from this requirement.

The IACE indicated that the refresher-training requirement would be a burden on the local agency resources. The NACE thought the refresher training provision to be costly for local governments and proposed a tiered approach based on bridge type and complexity. They also recommended that turning the training development and deployment over to the local technical assistance programs (LTAPs) would be a more economical approach.

The Iowa DOT commented that refresher training would place more requirements on the counties and cities. The ACRC in Michigan supported refresher training, but thought that it should be carefully tailored to local needs, and also be relevant, economical and of short duration. The AASHTO recommended that the NBIS not mandate refresher training every five years for all program managers and team leaders. The Virginia DOT asked that the requirement for refresher training for program managers be removed.

FHWA response: The FHWA has reevaluated the refresher training requirement. First, we have determined that refresher training would be more appropriately addressed as part of quality control (QC) and quality assurance (QA) procedures. Accordingly, we have deleted the proposed § 650.309(d) and revised § 650.313 to include refresher training as part of QC and QA. For additional details regarding QC and QA procedures see § 650.313 preamble discussion.

Second, we recognize there are some differences in inspection programs across the nation and the need for flexibility in determining the frequency, duration, and to some extent, the content of refresher training. Accordingly, we have added a definition of “bridge inspection refresher training” under § 650.305 that allows for the necessary flexibility.

While the NHI Bridge Inspection Refresher 130053 training course  8 would be acceptable, it is not the only option. States or Federal agencies are permitted to develop their own refresher training programs. The details of these programs, such as training content, frequency, and method of delivery, would be defined in the QA and QC procedures that are periodically reviewed by the FHWA under § 650.313(g).

The Missouri and Massachusetts DOTs agreed with the proposed § 650.309(e) that requires either the comprehensive bridge inspection training or other FHWA approved training for underwater bridge inspection divers.

The Wyoming DOT disagreed with the proposed § 650.309(e) in regards to the option of having FHWA approved underwater bridge inspection training. The Illinois DOT argued that divers did not need this degree of training if a qualified team leader were on site and in communication with the divers during underwater inspection. The Minnesota, Illinois and Kansas DOT stated that the pool of firms meeting this requirement would be reduced. The Maryland DOT suggested that the training requirement should be waived for those divers certified by a national diving authority, divers who are engineers with 5 years of experience, and divers who are non engineers with 10 years experience with a provision for refresher training every 5 years.

Thirty-four Kansas counties, eleven Kansas cities, and two Kansas consultants commented on the proposed § 650.309(e) that as long as team leaders are on site during underwater inspections, the diver does not need this training; however, two Kansas counties agreed that divers should complete the comprehensive training. The Virginia DOT and the AASHTO were not in favor of the proposed § 650.309(e), particularly since a qualified team leader must be present during the inspection.

Collins Engineers noted that the comprehensive course should be preceded by 40 hour engineering concepts for bridge engineers course for those with little or no practical bridge experience or background in bridge technology.

FHWA Response: We have renumbered this section from the proposed § 650.309(e) to the final § 650.309(d). The FHWA does not concur with the commenters who argued that the presence of a team leader during the inspection negates the need for comprehensive training of the divers. During a typical underwater inspection, the divers are not under direct visual observation by the team leader. Divers need to be capable of conducting thorough inspections, recognizing defects and deterioration, and documenting and describing their observations using common terminology and techniques. For this reason, divers must complete the comprehensive training or alternate underwater diver bridge inspection training. States or Federal agencies are allowed to develop their own underwater diver bridge inspection training course. To provide additional clarification, a definition of “underwater diver bridge inspection training” has been added to § 650.305.

In situations where divers possess little or no experience in bridge inspection, training on basic engineering concepts and inspection techniques should be considered. The FHWA believes that the need for prerequisite training is an issue that must be evaluated on a case-by-case basis rather than specified in the regulation.

Collins Engineers noted that the comprehensive course currently offered by NHI does not address diving operations. The U.S. Navy and the ADCI recommended including reference to the OSHA regulations regarding diving operations within the NBIS.

FHWA response: The FHWA believes that safe diving practices as prescribed by the OSHA regulations should be employed during all bridge inspection diving, but we do not reference them. We believe that a reference would unnecessarily complicate this regulation. There are a number of OSHA regulations that pertain not only to underwater inspection but also above-water inspections, and any omission in this standard does not relieve diving inspectors of the requirement to follow OSHA regulations.

The Pennsylvania DOT commented on § 650.309 indicating that training needs to be coupled with certification tests. Furthermore, the Pennsylvania DOT stated that inspectors who have demonstrated prior knowledge through engineering degree or Fundamentals of Engineering exam should be provided an opportunity to waive training requirements via certification testing.

FHWA response: The regulation requires successful completion of comprehensive bridge inspection training. The FHWA has elected to leave the definition of “successful completion” to the States or Federal agencies. In some States, minimum passing grades on final examinations have been specified and the FHWA supports this concept.

We do not allow certification tests to substitute for comprehensive bridge inspection training. The FHWA believes that successful completion of the comprehensive bridge inspection training is appropriate regardless of an individual's education, experience, or professional engineer status.

The Massachusetts DOT supported clarification of the inspection frequency. The Kansas, Tennessee, Michigan and Colorado DOTs as well as the AASHTO, the ACRC in Michigan and the NACE recommended that more flexibility should be given to adjust to unexpected weather events, or to permanently move a bridge or group of bridges to a more logical inspection period. The AASHTO recommended that routine inspections be performed “within a calendar year and later or within 2 months later.” The NACE argued that a 90-day grace period would allow for efficient scheduling of inspections and personnel. The ACRC in Michigan and Arkansas DOT pointed out that the NPRM preamble discussed the 30-day grace period; however, the proposed regulation did not address this. The Arkansas DOT recommended a 45-day grace period.

FHWA response: The FHWA believes that the inspection frequency should not exceed 24 months. We recognize that severe weather, concern for bridge inspector safety, concern for inspection quality, the need to optimize scheduling with other bridges, or other unique situations may be cause to adjust the scheduled inspection date. The adjusted date should not extend more than 30 days beyond the scheduled inspection date, and subsequent inspections should adhere to the previously established interval.

Establishment of a formal inspection frequency grace period may have the unintended consequence of extending the inspection interval beyond twenty-four months. The twenty-four month interval has been used as the standard since the inception of the national bridge inspection program. Concern for safety makes us reluctant to take actions that may make bridges less safe, therefore we have not established a grace period.

The Michigan DOT commented on § 650.311(a)(2) that the program manager should put guidelines in place, but the ultimate responsibility for setting intervals less than 24-months should reside with the on-site inspector.

FHWA response: The FHWA believes criteria to determine the level and frequency of less than 24 month inspections should be established and implemented according to statewide or Federal agency wide procedures to ensure consistency throughout an entire State or Federal agency program. The term program manager was removed from this section to provide flexibility in how this provision is implemented.

The HCRC in Michigan in commenting on § 650.311(a)(3) applauded the opportunity for inspecting certain bridge types in up to 48-month intervals. The South Dakota DOT commented that they have been using the 48-month inspection frequency for certain structures and support this concept. The IACE commented that the proposed provision could be interpreted to prohibit local agencies from inspecting at greater than 24-month intervals. The Michigan DOT noted that the program should provide guidelines to let the States know factors being considered during the application process to lengthen the inspection interval otherwise each State might be treated differently depending on the local FHWA Division Office. The NACE and the ACRC in Michigan wanted to know if the 48-month option could be extended to local agency bridges. Thirty-seven Kansas counties, seven Kansas cities, and one Kansas consultant commented to the proposed § 650.311(a)(3) that the local agency should govern when bridges need inspection more than every 24 months.

FHWA response: In guidance published on September 16, 1988, the FHWA established consistent criteria for extending an inspection interval to 48 months, but maintains that approval be administered from the FHWA Office of Bridge Technology in order to maintain consistency across States and Federal agencies. Guidance on the 48-month inspection interval criteria can be found in the FHWA Technical Advisory T5140.21. 9 The FHWA acknowledges that further study is needed before consideration could be given to automatically allow certain bridges to be placed on a 48-month cycle. County bridges are also eligible; however, the State must support and submit the request for the extended inspection cycle to the FHWA for approval. The FHWA has removed the reference to State or Federal agencies in the proposed § 650.311(a)(3) to avoid confusion.

The Michigan DOT commented on § 650.311(b)(2) that the ultimate responsibility for setting interval less than 60 months should reside with the on-site inspector.

FHWA response: As with the routine inspection interval discussed earlier, the FHWA believes criteria to determine the level and frequency of less than 60-month inspections should be established and implemented according to statewide or Federal agency wide procedures to ensure consistency throughout an entire State or Federal agency program.

The Missouri DOT commented on § 650.311(b)(3) and agreed that they would like to see a 72-month interval. The New Jersey DOT argued that this was excessive and should remain at the 60-month interval. The Indiana DOT agreed with the change, but would like the maximum moved out to 120 months. The IACE commented that the proposed provision could be interpreted to restrict local agencies from inspecting at greater than 60-month intervals and that there is inconsistent treatment of local agencies. The Iowa DOT thought the proposed provisions too restrictive and that flexibility be given to bridge owners in the range of 6 to 10 years for various reasons. The U.S. Navy commented that it was not in favor of extending the underwater inspection interval beyond 60 months and currently inspect on a 48-month interval to coincide with successive biennial inspections.

FHWA response: The FHWA believes that underwater inspection intervals for certain bridges can be extended to 72 months, with FHWA approval. The FHWA believes that applying engineering judgment and approval on a case-by-case basis to bridges with little or no change from inspection cycle to cycle in benign environments provides an adequate margin of safety to the motoring public. Industry standards, such as those provided by the American Society of Civil Engineers (ASCE) in its “Underwater Investigations Standard Practice Manual, 2001,”  10 promote a degree of latitude in the maximum interval between routine underwater inspections up to 6 years. The guidance provided is tied to material, environment, scour and condition rating from previous inspections. While we are including an additional year beyond the current 60-month underwater inspection interval, we are taking into consideration these same factors of material composition (timber, steel, concrete, protected or unprotected steel or timber, composite), environment (benign or aggressive), scour (susceptibility to scour) and previous condition rating (excellent to failed). Based on our assessment, again on a case-by-case basis, the FHWA may approve requests not to exceed 72 months. This authorization can be rescinded at any time owing to structural degradation, adverse change in environment and presence of localized bridge scour.

An example of a situation that may warrant an extended interval may include a highway bridge supported by concrete piles with no degradation over a lined irrigation canal carrying fresh water. An example of a situation that would not warrant approval would be a highway bridge over a high flow saltwater or brackish water environment, with structural piles showing degradation and subject to localized scour. Four-year frequencies may be used, if desired, but retention of the 60-month frequencies allows more flexibility to program managers. The FHWA does not believe there is justification at this time to warrant extended intervals beyond 72 months, but acknowledges that further study in this area is needed. The FHWA has removed the reference to State or Federal agencies in the proposed § 650.311(b)(3) to avoid confusion.

The Massachusetts DOT in commenting on § 650.311(c) supports clarification of the inspection frequency being proposed, specifically with regard to fracture critical (FC) inspections. The Texas DOT commented on § 650.311(c)(1) and indicated that preliminary estimates of having a “not to exceed 24 months” interval would increase statewide inspection costs by $10 million per year, that the program manager should be allowed to set that interval based on sound engineering judgment and FHWA approval and the maximum approved frequency should not exceed 60 months. The Texas DOT also commented that routine and underwater inspection frequency can be extended, and questioned why this does not apply to fracture critical inspection frequency.

The Illinois DOT noted that the proposed § 650.311(c)(1) establishes a 24-month maximum frequency for fracture critical members and recommended a 24-month interval that allows States to have the latitude to establish criteria for inspecting bridges at intervals up to 60 months. The Minnesota DOT recommended that “routine inspection of FCMs shall be at intervals not to exceed 24 months.” The Kansas and Oregon DOTs argued that the 24-month interval was excessive and the Kansas, Wyoming, and New Mexico DOTs as well as the AASHTO recommended that States be allowed to establish intervals up to 60 months. The New Mexico DOT also urged that the discretion for an extension be left with the State bridge engineer or designee and not with the program manager.

The California DOT requested clarification regarding whether the proposed language applied to “fracture critical bridges” or to “bridges with fracture critical elements.” The Wyoming and Kansas DOTs as well as the AASHTO recommended deletion of the proposed § 650.311(c)(3). The Washington DOT wanted clarification as to the nondestructive evaluation (NDE) methods to be used on FCMs.

FHWA response: The inspection frequency for fracture critical bridges was first defined in the “Recording and Coding Guide for the Structure Inventory and Appraisal of the Nation's Bridges.”  11 The FHWA continues to believe that all FCMs or member components be given, at a minimum, a hands-on inspection as defined in § 650.305 at intervals not to exceed 24 months. The FHWA recognizes that the interval for use of NDE and other specialized techniques may be greater than 24 months. The FHWA also believes that some FCMs or member components should be inspected at more frequent intervals, and these inspections may require NDE or other specialized techniques.

The Michigan DOT commented on § 650.311(c)(2) and stated that the ultimate responsibility for setting intervals less than 24 months should reside with the on-site inspector.

FHWA response: As with other inspection intervals discussed above, criteria to determine the level and frequency of less than 24 month inspections should be established and implemented according to statewide or Federal agency wide procedures to ensure consistency throughout an entire State or Federal agency program.

The Missouri and Minnesota DOTs commented on § 650.311(d) and agreed that the program manager should be provided the discretion to determine the level and frequency of damage, in-depth and special inspections. The Michigan DOT argued that § 650.311(d) takes away all responsibility from the inspector in the field and places it in the hands of a person who has not likely to have seen the specific bridge.

FHWA response: The FHWA believes that although input from a team leader is an important consideration, the ultimate decision should rest with the program manager in order to ensure consistency throughout an entire State or Federal agency program.

The Indiana DOT noted that proposed § 650.311 does not include any reference to NBI item number 92C, 12 other special detail inspections and asked if it is covered by § 650.311(d) and whether the inspection frequencies are to be determined by the program manager.

FHWA response: NBI item number 92C, other special inspection, is addressed in § 650.311 (d) Damage, in-depth and special inspection. Definition for special inspection is covered in § 650.305. The inspection frequency is established by the program manager.

The Oregon DOT stated that the requirements of § 650.313 were very reasonable.

The Michigan DOT stated that § 650.313(a) contains conflicts with the AASHTO Manual that must be resolved.

FHWA response: The NBIS take precedence over the AASHTO Manual. The AASHTO Manual has excellent guidance that should be followed whenever it is not in conflict with the requirements of the NBIS.

The Massachusetts and South Dakota DOTs supported the proposed § 650.313(b). The Maryland, Kansas, and Michigan DOTs, as well as the AASHTO, do not support the requirement for having “team leader” on site at all times during inspection. The Tennessee DOT had questions regarding having a designated person act as “team leader” when the team leader is unavailable. Thirty-seven Kansas counties, seven Kansas cities, one Kansas consultant commented on the proposed § 650.313(b) and stated that there are too many structures to require the “team leader” at every inspection and that this requirement will likely increase local agency costs which would deplete funding available for bridge replacement and rehabilitation. The HCRC in Michigan commented on § 650.313(b) and asked whether this new requirement would mean that two people will have to perform inspections and, if so then there would be a costly increase for counties performing bridge inspections.

FHWA response: The requirement to have the team leader on site during the inspection is not new. However, the language requiring this was clarified in this section because the FHWA agrees there has been some misinterpretation of the NBIS in the past. The qualifications for team leader were established to ensure that those conducting the inspections meet specific minimum standards, not to establish qualifications of the supervisor of those who perform the inspection. This requirement does not mandate that two people are required to conduct an inspection. However, if only one person is conducting an inspection, that person must meet the qualifications of a team leader, as defined in the NBIS. Even though there is no requirement to have a minimum of 2 people on an inspection team, the FHWA highly recommends at least 2 people be present to ensure the safety of the inspectors, to improve the quality of the inspection data, and to provide opportunities to train new inspectors.

The Wyoming DOT commented on § 650.313(c) and stated that the new the AASHTO, Manual for load and resistance factor rating (LRFR) of Highway Bridges  13 could change some of this regulatory language if adopted by the AASHTO.

The Illinois DOT argued that the requirement to post bridges that are unable to carry routine permit loads not be applied to all structures under local agency jurisdiction, only those on local highways that are designated truck route system by the State for routine permit loads.

FHWA response: The FHWA agrees that the AASHTO, Manual for Condition Evaluation and LRFR of Highway Bridges uses new terminology. The phrase, “or equivalent rating factor” was included in the requirement to account for the differences. The FHWA also agrees that bridges under local jurisdiction on roads where unrestricted permit loads are not allowed, need not be posted for the permit loads. The FHWA believes the language in the requirement is consistent with that interpretation, since permit loads would be considered to be restricted from using those bridges. The FHWA agrees that bridge owners may post bridges for less than the operating load level, and the FHWA believes this final rule allows for that possibility.

When restricting routine or continuous permit loads from crossing specific bridges, States or Federal agencies may elect to erect posting signs or to issue restrictions to the permit holders to keep them from traveling specific routes with permit loads capacity problems. To account for different methods of controlling access for permit vehicles, the phrase, “Post or restrict” was added to § 650.313(c).

The Wyoming DOT commented on § 650.313(d) and indicated that maintaining inspection records for the life of the bridge, while ideal, may not be realistic or beneficial in all cases and therefore recommended that this requirement be deleted. The Indiana DOT pointed out the problems associated with availability and storage of bridge data and that maintaining such files would be labor intensive. The Michigan DOT indicated that records no longer relevant should be purged from the files and recommended that § 650.311(d) be modified to allow agencies to purge files. The Minnesota DOT noted that tracking “any action taken” would be very laborious and recommended that § 650.311(d) be changed to reflect that only “action(s) taken pursuant to the critical findings” be tracked. The Missouri, New Jersey and Michigan DOTs commented that “standard forms” or report documentation is somewhat confusing and can vary from State to State. The New Jersey DOT wants clarification whether electronic as well as paper documents would be included in the “bridge file.” The Miami County in Kansas noted that the recording and coding guide format is appropriate for most bridge data reporting.

FHWA response: The FHWA agrees with the commenters that maintaining bridge records could be misunderstood to apply to all data, even though it may not be relevant or necessary to properly assess the current condition. The language was revised to state the minimum requirement is to maintain data that is relevant. The determination of relevant data is made by the program manager following guidance contained in the AASHTO Manual. We have revised the wording of § 650.313(d) accordingly. The FHWA agrees that “standard forms” is not specific, but it does indicate that for a given State or Federal agency, the forms should be consistent to facilitate recording and interpretation of the data. The wording of § 650.313(d) has been revised accordingly. The FHWA agrees that records may be maintained in paper or electronic versions, or both. The NBIS does not specify or eliminate either method.

The Wyoming DOT commented on § 650.313(e) and argued that the agency, not the program manager, should be responsible for identifying and maintaining bridge lists. Wyoming DOT urged that this provision should be deleted. The Massachusetts DOT supports the requirement for maintaining lists and does so with relative ease using a computerized database. The Illinois DOT, the IACE, and the AASHTO stated that the requirement to list bridges “vulnerable to seismic damage” should not be included in the NBIS. The Kansas DOT sees no benefit in keeping bridge lists assuming data is readily available. The Washington DOT seeks clarification as to what qualifies a bridge as “seismically vulnerable.” The Michigan DOT viewed the bridge list requirement for multiple written documents and or plans for nearly every bridge in the inventory as an overwhelming work burden for State DOTs.

FHWA response: The FHWA agrees with the commenters that the program manager may not be the designated individual who actually identifies bridges in specific categories. However, the FHWA believes the program manager has overall responsibility to see that such work is done. The language was revised to eliminate any specific reference to the person who identifies the bridges. The FHWA also agrees that maintaining a paper list is not necessarily the only way this requirement can be met. Computerized data base lists or simply an identifier in the State's inventory would satisfy the requirement. However, it is necessary to identify bridges in at least the specific categories listed so their unique inspection requirements and potential needs can be assessed appropriately.

The proposed requirement to identify and evaluate bridges in high seismic risk areas has been removed. We believe that this is an important consideration for bridge safety, best addressed through a comprehensive evaluation of seismic risk through a bridge management program. The FHWA has previously advised States to identify bridges vulnerable to seismic damage, based on a State's site specific assessment.

The Missouri, Illinois, Minnesota, Kansas and Wyoming DOTs as well as the AASHTO commented on § 650.313(f) and recommended that it should be deleted. The New Jersey DOT indicated that an electronic record of such bridges would meet this requirement. The Texas DOT commented that generating an “action plan” would not be an efficient use of resources, would not add any benefit and may contain redundant information. The Massachusetts, California and Pennsylvania DOTs supported this section. The Maryland DOT recommended that in lieu of § 650.313(f), we should require States to follow procedures described in the FHWA's “Inspection of Fracture Critical Bridge Members.”  14 The Michigan DOT viewed the bridge list requirement for multiple written documents and or plans for nearly every bridge in the inventory as an overwhelming work burden for State DOTs. The Oklahoma DOT recommended adding a waiver to § 650.313(f) for bridges with an average daily traffic (ADT) less than 500. The Pennsylvania DOT recommended the addition of a fracture critical (FC) indicator to the NBI to identify FC bridges.

FHWA response: The FHWA did not intend the proposed language for an “inspection plan” to be substantially different than the current rule, which requires identification, description, frequency and procedures to be established for fracture critical members (FCMs). Those items essentially would constitute the “plan.” The FCM inspections should be done in accordance with FHWA-IP-86-26, “Inspection of Fracture Critical Bridge Members.” Therefore the reference to a plan has been eliminated and language similar to the existing rule has been adopted. The features of the FCM inspections can be shown in a listing, on the inspection records, or in an electronic database. The proposed § 650.313(f) has been redesignated as § 650.313(e)(1).

The Missouri, Wyoming, Illinois, Minnesota and Kansas DOTs as well as the AASHTO stated that § 650.313(g) should be deleted. The New Jersey DOT indicated that an electronic record of such bridges would meet this requirement, but stated that it is unclear. The Texas DOT commented that generating an action plan would not be an efficient use of resources, not add any benefit and may contain redundant information. The Massachusetts and California DOTs indicated support for this section. The Maryland DOT recommended that in lieu of § 650.313(g) the FHWA should require States to follow procedures described in the FHWA's Underwater Inspection of Bridges report. 15 The Alabama DOT argued that this requirement would pose a significant burden on those States with a large population of bridges requiring underwater inspections, and be unnecessary, wasteful, and a duplicative effort. The Michigan DOT viewed the bridge list requirement for multiple written documents and or plans for nearly every bridge in the inventory as an overwhelming burden for State DOTs.

FHWA response: The FHWA did not intend the proposed language for an “inspection plan” to be substantially different from the current rule, which requires identification, description, frequency and procedures to be established for members requiring underwater inspection. Those items essentially would constitute the “plan.” Therefore the reference to a plan has been eliminated and language similar to the existing rule has been adopted. Those four features of the underwater inspections can be shown in a listing, on the inspection records, or in an electronic database. The proposed § 650.313(g) has been redesignated as § 650.313(e)(2).

The Missouri DOT commented on § 650.313(h) and recommended that language regarding inspecting bridges after a “major flood” event should be changed to “consideration should be given to inspecting scour critical bridges after a major flood event.” The Missouri and Colorado DOTs also noted that the “major flood event” guidance would be addressed in the “action plan.”

The Texas DOT commented that generating an action plan would not be an efficient use of resources and, instead, proposed that generic guidelines be developed outlining appropriate evaluation milestones as well as monitoring criteria. The Indiana DOT indicated that at the State level there are scour plans; however, at the county level additional resources would be needed to develop scour plans. The Indiana, Wyoming, Illinois, Minnesota and Kansas DOTs as well as the AASHTO recommended deleting § 650.313(h). The Massachusetts DOT recommended that the requirement be changed to establishing a list of bridges that are vulnerable to events and developing monitoring and or inspection plans for such structures in the wake of a scour event. The South Dakota DOT asked for clarification of a “major flood event.” The Washington DOT indicated that its inspection of bridges after major flood events are performed by maintenance staff and asked if this section required that a team leader perform these inspections. The California DOT indicated support for this section.

The Michigan DOT viewed the bridge list requirement for multiple written documents and or plans for nearly every bridge in the inventory as an overwhelming burden on State DOTs. Thirty-seven Kansas counties, seven Kansas cities, one Kansas consultant commented on the proposed § 650.313(h) and indicated that the requirement to prepare an action plan is not justified, and that the local agency should decide proper actions based on degree of risk. The Virginia DOT understood the need to have lists of scour critical bridges to identify structures that needed inspection after a flood event; but did not agree that the NBIS covers retrofit guidelines.

FHWA response: Scour related deficiencies are the leading cause of serious bridge failures and closings. The requirements for scour evaluation and action plans are consistent with the existing requirement for evaluation of underwater members, with a renewed emphasis. The FHWA does agree with the commenters that the action plans for some bridges may be very similar and that monitoring and assessment after flood events may be done using different levels of effort depending on the degree of risk. The wording of this section was changed to reflect the need for some flexibility in the application of the action plans. Monitoring after flood events is described in the FHWA guidance manuals, “Evaluating Scour at Bridges”  16 and “Bridge Scour and Stream Instability.”  17 The proposed § 650.313(h) has been redesignated as § 650.313(e)(3).

The Missouri, Wyoming, Illinois, Minnesota, Kansas and Pennsylvania DOTs, the IACE and the AASHTO commented on § 650.313(i) and recommended that it should be deleted. The Colorado DOT urged that § 650.313(i) should be either deleted or rewritten to better define criteria for determining “seismic vulnerability” and expectation for the “action plan.” The New Jersey DOT commented that it does not believe that “the benefit of such a program in New Jersey would be consistent with the costs to develop it considering the historical lack of damage from seismic events.” The Indiana DOT indicated the proposed language is too vague, leaves too much for interpretation, and that additional resources would be needed at the county level.

The Massachusetts DOT recommended establishing a list of bridges that are vulnerable to events and developing monitoring and or inspection plans for such structures in the wake of a seismic event. The Illinois DOT and the IACE argued that this provision was an “unfunded mandate.” The Washington DOT wanted clarification as to what qualifies a bridge as “seismically vulnerable.” The California DOT supported this section. The Michigan DOT viewed this requirement for multiple written documents and or plans for nearly every bridge in the inventory as an overwhelming burden for State DOTs. Thirty-seven Kansas counties, seven Kansas cities, one Kansas consultant disagreed with § 650.313(i) because they believe the requirement to prepare an action plan is not justified, and that it should be a local agency decision based on degree of risk. The Virginia DOT understood the need to have lists of seismically vulnerable bridges to identify structures that needed inspection after a significant seismic event; however, it does not agree that the NBIS covers retrofit guidelines. The Pennsylvania DOT noted that the term “seismic vulnerability” was not defined in § 650.305 and that the inspection requirement in § 650.313(i) is an open ended assignment that could be very costly, particularly in States with low seismic event probabilities.

FHWA response: The proposed requirement has been eliminated. Although we believe that this is an important consideration for bridge safety, we believe that it is best addressed by a comprehensive evaluation of seismic risk through a bridge management process.

The Missouri DOT opposed the proposed § 650.313(j) because it believes States have sufficient knowledge to recognize inspection needs for unusual bridges or features. The Wyoming and Minnesota DOTs and the AASHTO recommended that this provision should be deleted. The Texas DOT indicated that generating an “action plan” for “complex” bridges is not an efficient use of resources, would not add benefit and would likely contain redundant information. The Washington DOT commented that it needed further clarification as to “inspection and training requirements.” The California DOT is unclear as to the level of effort needed to comply with preparation of the proposed complex bridge “inspection plan.”

FHWA response: The FHWA agrees that the content of the plan was not clear in the proposed requirement. The language was changed to specify that the minimum requirement is to establish specialized inspection needs, level of effort and additional inspector training and/or experience. These procedures are applied to the unique features of complex bridges that would not normally be covered in a routine inspection. We also clarified the definition for complex bridges. The proposed § 650.313(j) has been redesignated as § 650.313(f).

The Missouri DOT, regarding the proposed § 650.313(k), is opposed to the requirement of a formal QC and QA program. The Missouri DOT believes it would be redundant and not sufficiently enhance public safety compared to efforts expended to provide such a program. The Indiana DOT argued that they would need additional resources to comply with this requirement and also expressed concern over the subjectivity of the required FHWA approval. The Wyoming DOT urged that this provision should be deleted. The Massachusetts, South Dakota, California and Pennsylvania DOTs supported this provision.

The Illinois DOT was concerned about the FHWA having a more active role. The South Dakota DOT supports this concept, but believes that the program should be left up to the States.

The Minnesota DOT recommended rewording this section to say, “submit documentation of the QA program to the FHWA for review and comment.” Additionally, the Minnesota DOT suggested that if QC is retained both QA and QC should be defined and the difference between them explained.

The Kansas DOT wanted to improve the consistency of NBI data by having the FHWA improve the “Edit/Update program” and distribute the program for general use. The Washington DOT asked for clarification as to the level of effort intended for submittal of QC and QA program documentation to the FHWA and requested criteria for program expectations.

The Michigan DOT recommended that the FHWA provide guidelines to the States outlining the evaluation factors used to grant approval, and that the FHWA should provide a standard for national uniformity. The Iowa DOT and the AASHTO recommended that the requirement to review load calculations be eliminated.

The ACRC in Michigan noted that in instances where inspection responsibilities are delegated to local agencies, the required QC and QA program should be developed in cooperation with the local agencies. Thirty-seven Kansas counties, seven Kansas cities, one Kansas consultant commented on § 650.313(k) and the majority indicated that they disagreed with the provision because the current limited oversight is working well. They recommended that the FHWA develop and distribute software to collect QA and QC data to encourage consistency and uniformity nationwide. The Virginia DOT commented that the documentation of findings for the QC and QA program should be available for review and comment by the FHWA but should not be subject to FHWA approval.

FHWA response: We have added definitions for QC and QA that are consistent with the AASHTO Manual. An FHWA study, “Reliability of Visual Inspection for Highway Bridges,” found wide variations in the condition assessment of typical highway bridges by experienced and trained inspectors from a variety of States. The study concludes that formal quality assurance is needed to obtain better uniformity in assigning condition codes. The FHWA believes that using computer software tools to check data is an important part of obtaining data accuracy and consistency, but is not adequate alone as a QC and QA procedure. The FHWA believes many States have well-developed and effective QC and QA procedures, but others have very minimal programs. This requirement will help States or Federal agencies develop more uniform systems that will lead toward more accurate national data. Example QC and QA procedures from other States are available at URL: http://www.fhwa.dot.gov/bridge/index.htm. for review and consideration.

The FHWA agrees with commenters that methods of review of reports and computations may vary and the precise method should be done according to normal State or Federal agency procedures. The FHWA agrees that it is not necessary to include in the rule a specific requirement to submit the QC and QA procedure to the FHWA for approval. During NBIS program reviews  18 the FHWA will examine QC and QA procedures. The proposed § 650.313(k) has been redesignated as § 650.313(g).

The Wyoming, Iowa, Illinois and Pennsylvania DOTs and the AASHTO commented on § 650.313(l) and recommended that this provision be deleted. The Missouri DOT had no objections on this provision, but recommended annual reporting. The Texas and Pennsylvania DOTs sought clarification as to how often this information should be provided and recommended that the FHWA define the term “critical finding.” The Maryland DOT suggested a definition for “critical finding” as “any condition that affects the safe passage of any legal vehicle.” The South Dakota DOT supported this provision and also recommended that the States be allowed to set their own definition of “critical finding.” The Washington DOT requested more details on how States are to report the information to the FHWA. The IACE did not see a benefit to requiring such information be reported since it would require additional resources to generate the information. The California DOT supported the proposed provision on the basis that its current FHWA reporting procedure be used. The Michigan DOT indicated that “critical findings” is not defined; frequency of reporting is not delineated and workload would double when this provision is applied to local agencies. The Colorado DOT recommended the provision should be deleted and the subject left to the language contained in § 650.313(d).

Thirty-seven Kansas counties, seven Kansas cities, one Kansas consultant commented on the proposed § 650.313(l) and the majority disagreed with the provision because the cost of establishing a statewide procedure to address critical findings is not justified. The Oklahoma DOT suggested revising this section to require the program manager be responsible for determining a procedure to address critical findings and that the FHWA should define the term “program manager.”

FHWA response: The broad definition for “critical finding” was added to allow flexibility to establish, in cooperation with the FHWA, criteria and reporting procedures specific to a particular State or Federal agency. The FHWA noted that many States already have established procedures that are working well, and the rule was not meant to require significant changes in those procedures. “Notify the FHWA of actions taken to assure public safety” was changed to “Periodically notify the FHWA of the actions taken to resolve or monitor critical findings.” The period between notifications is to be agreed upon between the FHWA and the State or Federal agency. The proposed § 650.313(l) has been redesignated as § 650.313(h).

The Oregon DOT commented that § 650.315 requirements are very reasonable. The Texas and Oklahoma DOTs suggested that the first sentence of § 650.315(a) be rewritten as follows: “Each State and Federal agency must prepare and maintain an inventory of all bridges subject to the NBIS that are inspected according to § 650.307.” The Texas DOT asked if the States were required to maintain an inventory of federally owned bridges even though they are not inspected by the States.

The Kansas DOT recommended that the second sentence in § 650.315(a) be rewritten to say, “State and Federal agencies must collect, retain and submit certain * * *”.

The AASHTO recommended revising the first two sentences of § 650.315(a) as follows: “Each State must prepare and maintain an inventory of all bridges subject to the NBIS. Each Federal agency must prepare and maintain an inventory of all bridges subject to the NBIS.”

FHWA response: We have modified § 650.315(a) by removing the word “and” and replacing it with the word “or.” We do not require that States collect, report or retain the Federal bridge information. The FHWA annually provides a copy to each State of all the inspection information that was submitted by Federal agencies for each State. This is done so that the States may have a complete inventory and have access to Federal bridge data within the State.

The New Jersey DOT interpreted the proposed § 650.315(b) to apply only to major changes in NBI data rather than all inspection data which may not be available until the inspection report is complete. The Massachusetts DOT support the proposed changes. The Kansas DOT and the AASHTO recommended that inspection data from initial, routine, in-depth, fracture critical, special and underwater inspections be entered into the NBI within 120 days of inspection, rather than 90 days.

FHWA response: All inspection data is to be entered into the inventory whether it is new data or changed data. This is not always restricted to NBI item number 58  19 , NBI item number 59  20 and NBI item number 60  21 since other items such as bridge clearances and safety features, may also change during an inspection cycle. The FHWA believes that the 90 day (3 month) period for entering the data allows a reasonable amount of time for completion of the inspection report and data entry.

The FHWA believes that extending the time required for entering the data after inspection to 180 days (6 months) for States or Federal agencies is too long. The 90-day time period for entering the data is consistent with the current regulation. The FHWA only collects this data once a year and any delay in the data being properly inventoried would not provide the FHWA the most current data available. Up-to-date information is vital to the program oversight, management and stewardship for the State and the FHWA. It is also important that the FHWA have current data because this data is used to: (1) Distribute funds for the HBRRP program (23 U.S.C. 144), (2) provide reports to Congress, and (3) make critical decisions regarding the bridge program. This necessitates adherence to a firm 90-day collection period.

The Massachusetts DOT supported the changes proposed to § 650.315(c). The Minnesota DOT recommended extending timelines to provide more flexibility to inspection agencies entering data, “within one year not to exceed 90 days.” The Kansas DOT and the AASHTO recommended allowing 120 days rather than 90 days to enter the data. The Washington DOT recommended adding a qualifier, “open to traffic,” to appropriately consider bridges built in phased construction where only a portion of the bridge may be open.

FHWA response: The FHWA noted that extension of the time required for entering changed data because of bridge modifications or new bridge construction is not justified. The 90 day time frame for entering data is consistent with the current regulation. For the reasons listed in the FHWA response to § 650.315(b), up-to-date information is vital to the bridge program. If any part of a highway bridge is open to traffic it should be inspected and inventoried in accordance with the NBIS.

The Massachusetts DOT supported the changes proposed to § 650.315(d). The Minnesota DOT recommended extending timelines to provide more flexibility to inspection agencies entering data, “within one year not to exceed 90 days.” The Kansas DOT and the AASHTO recommended allowing 120 days rather than 90 days to enter the data. The Minnesota DOT indicated it did not want to see the requirement to develop QA and QC measures to enforce these timelines.

FHWA response: The FHWA noted that the time required for entering changed data due to load restriction or closure status being extended to 180 days (6 months) is too long. The 90-day time frame for entering data is consistent with the current regulation. The FHWA only collects this data once a year and any delay in the data being properly inventoried would not provide the FHWA the most current data available. For the reasons listed in the FHWA response to § 650.315(b), up-to-date information is vital to the bridge program. The FHWA is not requiring that a “QA and QC measure” be developed to enforce these timelines.

The South Dakota DOT supports § 650.317.

The Kansas DOT and the AASHTO recommended the FHWA combine § 650.317(a) and § 650.317(b). The Michigan DOT does not support the incorporation of the AASHTO Manual in § 650.317(a), reasoning that an overly detailed regulation could incur unnecessary liability for the States due to the difficulty of achieving 100 percent compliance. The AASHTO commented that the availability of a 2003 Interim revision to the AASHTO Manual would necessitate adding it to the reference manuals.

FHWA response: The FHWA does not agree with combining § 650.317(a) and § 650.317(b) since they are two distinct documents. The FHWA agrees that the 2003 Interim revision to the AASHTO Manual for Condition Evaluation of Bridges needs to be incorporated by reference and has made that change.

The FHWA is also in the process of reviewing 23 CFR part 650, subpart D, Highway Bridge Replacement and Rehabilitation Program (HBRRP). The FHWA published an advance notice of proposed rulemaking for the HBRRP on September 26, 2001, at 66 FR 49152. The FHWA also recently published a notice of proposed rulemaking for the HBRRP on June 21, 2004, at 69 FR 34314.

The FHWA has determined that this action is a significant regulatory action within the meaning of Executive Order 12866 and is significant within the meaning of the U.S. Department of Transportation regulatory policies and procedures. This action is considered significant because of the substantial public interest in the safety of highway bridges. The Office of Management and Budget (OMB) designated this regulation as a significant regulatory action and has reviewed it under E.O. 12866.

We have analyzed the costs associated with this rulemaking. We believe that the costs of the changes in this final rule will be minimal because we believe that most States already adhere to many of the inspection procedures set forth in this rule and, therefore, we believe these changes will add less than $1 million to the costs associated with a multi-billon dollar program. Additionally, the bridge program is part of the Federal-aid highway program and, thus, the costs associated with this rule are eligible for funding under this program. We believe the changes to the inspection program are minor and will not be costly to the States. Finally, we have carefully analyzed the costs associated with the information collection and we believe the cost associated with the minor increase in burden hours will be $52,000 or about $1000 per State (to include the District of Columbia and Puerto Rico); therefore, the total cost of the entire information collection will be approximately $13,552,000, or an average of $260,000 per State. These information collection costs also may be reimbursed under the Federal-aid highway program.

This final rule will not adversely affect, in a material way, any sector of the economy. In addition, these changes will not interfere with any action taken or planned by another agency and will not materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs. Consequently, a full regulatory evaluation is not required.

In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601-612) the FHWA has evaluated the effects of this action on small entities and has determined that the action will not have a significant economic impact on a substantial number of small entities. Since the regulatory changes are primarily directed to the States, which are not considered small entities for the purposes of the Regulatory Flexibility Act, the FHWA is able to certify that this final rule will not have a significant economic impact on a substantial number of small entities.

This rule does not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 1995, 109 Stat. 48). This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $120.7 million or more in any one year (2 U.S.C. 1532). The definition of “Federal mandate” in the Unfunded Mandates Reform Act excludes financial assistance of the type in which State, local or tribal governments have authority to adjust their participation in the program in accordance with changes made in the program by the Federal government. The Federal-aid highway program permits this type of flexibility to the States. Additionally, funding to inventory highway bridges, as well as Indian reservation and park road bridges, is currently provided under 23 U.S.C. 144, Highway Bridge Replacement and Rehabilitation Program (HBRRP). Bridge inspection is an eligible activity under the HBRRP and Federal funding is available to the States under the HBRRP.

This action meets applicable standards in section 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 action under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This final rule is not an economically significant rule and does not concern an environmental risk to health or safety that may disproportionately affect children.

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

This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132, and the FHWA has determined that this action will not have sufficient federalism implications to warrant the preparation of a Federalism assessment. The FHWA has also determined that this action does not preempt any State law or State regulation or affect the States' ability to discharge traditional State governmental functions.

The FHWA has analyzed this action under Executive Order 13175, dated November 6, 2000. The FHWA believes that this action will not have substantial direct effects on one or more Indian tribes; will not impose substantial direct compliance costs on Indian tribal governments; and will not preempt tribal law. Therefore, a tribal summary impact statement is not required.

Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program.

Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et seq. ), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct, sponsor, or require through regulations. The State reporting requirements related to the National Bridge Inspection Standards are covered by an existing FHWA information collection entitled Structure Inventory and Appraisal (SI&A) Sheet. The OMB control number for this collection is 2125-0501. The current annual burden imposed on the States under this information collection is 540,000 hours.

The SI&A sheets are used by the States and Federal agencies to provide to the FHWA the required information on annual bridge inspections. The FHWA has determined that the new requirements in this final rule will place an additional 2,080 burden hours on the States, which will result in a total annual burden of 542,080 hours. The additional burden is based on a review of the national bridge inspection data coupled with the additional NBIS requirements this rulemaking action imposes on the States. These requirements include the development of procedures for follow-up on critical findings.

In the NPRM published on September 9, 2003, the FHWA proposed a burden increase of 67,000 hours for the information collection, OMB control number 2125-0501, and invited interested parties to send comments regarding any aspect of these information collection requirements. Such comments could include, but were not limited to: (1) Whether the collection of information will be necessary for the performance of the functions of the FHWA, including whether the information will have practical utility; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the collection of information; and (4) ways to minimize the collection burden without reducing the quality of the information collected. The FHWA did not receive any comments in response to the proposed burden hour increase of 67,000 hours. The revision to the information collection, OMB control number 2125-0501, based on this final rule will increase the burden hours by only 2,080 hours, a much smaller amount than that originally proposed in the NPRM.

The agency has analyzed this action for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321) and has determined that this action will not have any effect on the quality of the environment.

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 although it is a significant regulatory action under Executive Order 12866 it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

A regulation identification 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.

Section 5318(h) of the Bank Secrecy Act, which is codified in subchapter II of chapter 53 of title 31, United States Code, requires every financial institution to establish an anti-money laundering program. The Bank Secrecy Act regulations define financial institution to include money service businesses. On April 29, 2002, FinCEN issued interim final rules-31 CFR 103.125-concerning the application of the anti-money laundering program requirement to money services businesses. 67 FR 21114.

The Essex Merrimack Bridge, at mile 5.8, across the Merrimack River, has a vertical clearance of 15 feet at mean high water, and 22 feet at mean low water in the closed position. The existing regulations are listed at 33 CFR § 117.605(c).

The bridge owner, Massachusetts Highway Department, requested a temporary deviation from the drawbridge operating regulations to facilitate necessary structural repairs to the balance wheels at the bridge.

This deviation to the operating regulations allows the bridge to remain in the closed position from 6 a.m. on December 13, 2004 through 6 p.m. on December 17, 2004.

This deviation from the operating regulations is authorized under 33 CFR § 117.35 and will be performed with all due speed in order to return the bridge to normal operation as soon as possible.

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

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

The security zone is necessary to provide security for, and prevent acts of terrorism against vessels loading or offloading at the NCSPA Wilmington facility during a military operation. It will include an area from 800 yards south of the Cape Fear River Bridge encompassing the southern end of Eagle Island, the Cape Fear River, and the grounds of the State Port Authority Terminal south to South Wilmington Terminal. The security zone will prevent access to unauthorized persons who may attempt to enter the secure area via the Cape Fear River, the North Carolina State Port Authority terminal, or use Eagle Island as vantage point for surveillance of the secure area. The security zone will protect vessels moored at the facility, their crews, others in the maritime community and the surrounding communities from subversive or terrorist attack that could cause serious negative impact to vessels, the port, or the environment, and result in numerous casualties.

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

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

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

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

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

This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit or anchor in a portion of the Cape Fear River that is within the security zone.

This security zone will not have a significant economic impact on a substantial number of small entities for the following reasons. Although the security zone will apply to the entire width of the river, traffic will be allowed to pass through the zone with the permission of the COTP or his or her designated representative. Before the effective period, we will issue maritime advisories widely available to users of the river.

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

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

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

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

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

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

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

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and 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 proposed 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.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES.

States which have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, States must change their programs and ask EPA to authorize the changes. Changes to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 266, 268, 270, 273 and 279.

We conclude that North Carolina's applications to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we grant North Carolina Final authorization to operate its hazardous waste program with the changes described in the authorization applications. North Carolina has responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs) within its borders (except in Indian Country) and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates under the authority of HSWA take effect in authorized States before they are requirements. Thus, EPA will implement those requirements and prohibitions in North Carolina, including issuing permits, until the State is granted authorization to do so.

The effect of this decision is that a facility in North Carolina subject to RCRA will now have to comply with the authorized State requirements instead of the equivalent Federal requirements in order to comply with RCRA. North Carolina has enforcement responsibilities under its State hazardous waste program for violations of such program, but EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to:

• Do inspections, and require monitoring, tests, analyses or reports

• Enforce RCRA requirements and suspend or revoke permits

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

This action does not impose additional requirements on the regulated community because the regulations for which North Carolina is being authorized by today's action are already effective, and are not changed by today's action.

EPA did not publish a proposal before today's rule because we view this as a routine program change and do not expect comments that oppose this approval. We are providing an opportunity for public comment now. In addition to this rule, in the proposed rules section of today's Federal Register we are publishing a separate document that proposes to authorize the State program changes.

If EPA receives comments that oppose this authorization, we will withdraw this rule by publishing a document in the Federal Register before the rule becomes effective. EPA will base any further decision on the authorization of the State program changes on the proposal mentioned in the previous paragraph. We will then address all public comments in a later final rule. You may not have another opportunity to comment. If you want to comment on this authorization, you must do so at this time.

If we receive comments that oppose only the authorization of a particular change to the State hazardous waste program, we will withdraw that part of this rule but the authorization of the program changes that the comments do not oppose will become effective on the date specified above. The Federal Register withdrawal document will specify which part of the authorization will become effective, and which part is being withdrawn.

North Carolina initially received final authorization on December 14, 1984, effective December 31, 1984 (49 FR 48694), to implement its base hazardous waste management program. We granted authorization for changes on March 25, 1986 (51 FR 10211), effective April 8, 1986, August 5, 1988 (53 FR 1988), effective October 4, 1988, February 9, 1989 (54 FR 6290), effective April 10,1989, September 22, 1989 (54 FR 38993), effective November 21, 1989, January 18, 1991 (56 FR 1929), effective March 19, 1991, April 10, 1991 (56 FR 14474), effective June 9, 1991, July 19, 1991 (56 FR 33206), effective September 17, 1991, April 27, 1992 (57 FR 15254), effective June 26, 1992, December 12, 1992 (57 FR 59825), effective February 16, 1993, June 3, 1993 (58 FR 31474) effective June 3, 1993, January 27, 1994 (59 FR 3792), effective March 28 1994, April 4, 1994 (59 FR 15633), effective June 3, 1994, June 23, 1994 (59 FR 32378), effective August 22, 1994, November 10, 1994 (59 FR 56000), effective January 9, 1995, September 27, 1995 (60 FR 49800), effective November 27, 1995, April 25, 1996 (61 FR 18284), effective June 24, 1996, October 23, 1998 (63 FR 56834), effective December 22, 1998, August 25 1999 (64 FR 46298), effective October 25, 1999. North Carolina most recently received authorization for revisions to its program on February 28, 2002 (67 FR 9219), effective April 29, 2002.

On April 27, 2001, and March 25, 2002, North Carolina submitted a final complete program revision application, seeking authorization of their changes in accordance with 40 CFR 271.21. North Carolina's provisions consists of provisions promulgated July 1, 1997, through June 30, 1998 (RCRA VIII), and July 1, 1998, through June 30, 2000, otherwise known as RCRA IX and X. The rule adoption for the provisions of RCRA VIII, IX, and X covered in this action became effective August 1, 2000, unless otherwise noted. North Carolina Statues at section 150B-21.6 and section 130A-294 allow the North Carolina Department of Environment and Natural Resources to administer the rules governing hazardous waste management. We now make an immediate final decision, subject to receipt of written comments that oppose this action, that North Carolina's hazardous waste program revisions satisfy all of the requirements necessary to qualify for Final authorization. Therefore, we grant North Carolina Final authorization for the following program changes:

There are no State requirements that are more stringent or broader in scope than the Federal requirements.

North Carolina will issue permits for all the provisions for which it is authorized and will administer the permits it issues. EPA will continue to administer any RCRA hazardous waste permits or portions of permits which we issued prior to the effective date of this authorization. We will not issue any more new permits or new portions of permits for the provisions listed in the Table above after the effective date of this authorization. EPA will continue to implement and issue permits for HSWA requirements for which North Carolina is not yet authorized.

North Carolina is authorized to carry out its hazardous waste program in Indian Country within the State, which includes the Cherokee Indian Nation. Therefore, this action has no effect on Indian Country. EPA will continue to implement and administer the RCRA program in these lands.

Codification is the process of placing the State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. We do this by referencing the authorized State rules in 40 CFR part 272. We reserve the amendment of 40 CFR part 272, subpart PP for this authorization of North Carolina's program changes until a later date.

The Office of Management and Budget has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993), and therefore this action is not subject to review by OMB. This action authorizes State requirements for the purpose of RCRA 3006 and imposes no additional requirements beyond those imposed by State law. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this action authorizes pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, this action also does not significantly or uniquely affect the communities of Tribal governments, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely authorizes State requirements as part of the State RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks. This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866.

Under RCRA section 3006(b), EPA grants a State's application for authorization as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for EPA, when it reviews a State authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272) do not apply. As required by Section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this document and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This action will be effective February 14, 2005.

EPA Region III is publishing this direct final deletion of the York County Solid Waste and Refuse Authority Superfund Site from the NPL.

The EPA identifies sites that appear to present a significant risk to public health or the environment and maintains the NPL as the list of those sites. As described in § 300.425(e)(3) of the NCP, sites deleted from the NPL remain eligible for remedial actions if conditions at a deleted site warrant such action.

Because EPA considers this action to be noncontroversial and routine, EPA is taking it without prior publication of a notice of intent to delete. This action will be effective February 14, 2005 unless EPA receives adverse comments by January 13, 2005 on this notice or the parallel notice of intent to delete published in the Proposed Rules section of today's Federal Register . If adverse comments are received within the 30-day public comment period on this notice or the notice of intent to delete, EPA will publish a timely withdrawal of this direct final deletion before the effective date of the deletion and the deletion will not take effect. EPA will, as appropriate, prepare a response to comments and continue with the deletion process on the basis of the notice of intent to delete and the comments already received. There will be no additional opportunity to comment.

Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses procedures that EPA is using for this action. Section IV discusses the York County Solid Waste and Refuse Authority Superfund Site and demonstrates how it meets the deletion criteria. Section V discusses EPA's action to delete the Site from the NPL unless adverse comments are received during the public comment period.

Section 300.425(e) of the NCP provides that releases may be deleted from the NPL where no further response is appropriate. In making a determination to delete a release from the NPL, EPA shall consider, in consultation with the State, whether any of the following criteria have been met:

i. Responsible parties or other persons have implemented all appropriate response actions required;

ii. All appropriate Fund-financed (Hazardous Substance Superfund Response Trust Fund) response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or

iii. The remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate.

Even if a site is deleted from the NPL, where hazardous substances, pollutants, or contaminants remain at the deleted site above levels that allow for unlimited use and unrestricted exposure, CERCLA Section 121(c), 42 U.S.C. 9621(c), requires that a subsequent review of the site be conducted at least every five years after the initiation of the remedial action at the deleted site to ensure that the action remains protective of public health and the environment. If new information becomes available which indicates a need for further action, EPA may initiate remedial actions. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system.

The following procedures apply to deletion of the Site:

(1) The EPA consulted with the Commonwealth of Pennsylvania on the deletion of the Site from the NPL prior to developing this direct final notice of deletion.

(2) The Commonwealth of Pennsylvania concurred with the deletion of the Site from the NPL.

(3) Concurrently with the publication of this direct final deletion, a notice of the availability of the parallel notice of intent to delete published today in the “Proposed Rules” section of the Federal Register is being published in a major local newspaper of general circulation at or near the Site and is being distributed to the appropriate federal, state, and local government officials and other interested parties; the newspaper notice announces the 30-day public comment period concerning the notice of intent to delete the Site from the NPL.

(4) The EPA placed copies of documents supporting the deletion in the Site information repositories identified above.

(5) If adverse comments are received within the 30-day public comment period on this notice or the companion notice of intent to delete also published in today's Federal Register, EPA will publish a timely withdrawal of this direct final notice of deletion before its effective date and will prepare a response to comments and continue with the deletion process on the basis of the notice of intent to delete and the comments already received.

Deletion of a Site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions, should future conditions warrant such actions.

The following information provides EPA's rationale for deleting the Site from the NPL:

The York County Solid Waste and Refuse Authority Superfund Site (Site) is located in Hopewell Township, York County, Pennsylvania, approximately two miles northwest of the center of Stewartstown Borough, Pennsylvania. The Site consists of a 135-acre inactive municipal landfill containing three unlined cells and a plume of contamination emanating from these cells. Adjacent to the former landfill is a currently operating, permitted landfill of approximately 45 acres that is not part of the NPL Site.

The York County Solid Waste and Refuse Authority (YCSWRA) was established in 1971 and commenced landfill operations at the Site by 1974. The landfill operated between 1974 and 1985 and received approximately 400 tons of waste daily. The landfill ceased operation in 1985 and was closed in accordance with a closure plan approved by the Pennsylvania Department of Environmental Resources (PADER, now the Pennsylvania Department of Environmental Protection or PADEP).

An investigation conducted by PADER between 1982 and 1984 revealed that volatile organic compounds (VOCs) were migrating from the landfill and contaminating adjacent residential wells. In 1984, YSCWRA entered into an Agreement for Amicable Action and Consent Decree with PADER (1984 PADER Agreement) which required YCSWRA to, among other things, construct a lined landfill, implement a ground water treatment and monitoring program for the Site, and provide potable water to the residents whose water was contaminated by the Site. In 1984 and 1985, YCSWRA installed additional ground water monitoring wells, constructed and started operating the adjacent lined landfill, and constructed and started operating the ground water contamination containment/extraction and treatment system for the Site. The treatment system currently in operation consists of seventeen pumping wells and three air stripping treatment towers. Effluent from the air stripping towers is discharged to two National Pollutant Discharge Elimination System (NPDES) permitted outfalls on streams adjacent to the former landfill. Additionally, YCSWRA currently supplies and maintains a point-of-entry carbon filter treatment system for eight residents and provides bottled drinking water to two residents whose domestic wells do not appear to have been impacted by the Site.

EPA completed a Preliminary Assessment/Site Investigation (PA/SI) for the Site in July 1984. The PA/SI confirmed the earlier findings that ground water beneath and beyond the landfill was contaminated with VOCs and that contamination had migrated to adjacent wells. EPA proposed the Site for inclusion on the National Priorities List (NPL) in April 1985. The Site was finalized on the NPL on July 22, 1987.

In December 1987, PADER and the YCSWRA entered into a Consent Order and Agreement requiring YCSWRA to perform a Remedial Investigation and Feasability Study (RI/FS) at the Site to ascertain the nature and extent of contamination and evaluate cleanup actions. The RI/FS was started in 1988 and was finalized in 1994. The Risk Assessment (RA) completed during the RI/FS identified ground water contamination beneath and beyond the boundaries of the Site as posing an unacceptable level of risk.

On December 29, 1994, EPA issued a Record of Decision (ROD) selecting remedial action for implementation at the Site. The selected remedy consisted of the following components:

1. Continued operation of the currently existing ground water extraction and air stripper treatment system at the landfill;

2. Continued operation and maintenance of the point of entry ground water carbon filter treatment systems and/or provision of bottled water for affected private wells as necessary;

3. Continued maintenance of the landfill's soil and vegetated cap and the passive gas venting system currently in place at the landfill;

4. Continued sampling of ground water and treated water to ensure that treatment components are effective and ground water remediation is progressing toward required cleanup levels;

5. Implementation of a monitoring program to assess the effectiveness of the ground water treatment system and its impact on down-gradient surface water and wetland habitat;

6. Implementation of a monitoring program to assess the impact of the treated effluent discharge on the environmental quality of surface waters and sediments in the streams where the outfalls are located;

7. Deed restrictions to prohibit the installation of new on-Site wells in areas of contamination that do not meet applicable or relevant and appropriate requirements (ARARs), which restrictions can be withdrawn when ARARs are achieved; and

8. Deed restrictions to prohibit the excavation or disturbance of the soil cap which results in exposing the fill materials.

In 1997, the YCSWRA entered into a Consent Order (1997 Consent Order) with EPA which required YCSWRA to implement a removal action consisting of certain actions selected by EPA in the ROD. The 1997 Consent Order did not expressly require that YCSWRA continue implementation of the pump and treat, maintenance, and sampling activities called for in the 1984 PADER Agreement; rather, the 1997 Consent Order required that YCSWRA describe to EPA, on a monthly basis, all actions undertaken at the Site to comply with that 1984 PADER Agreement. Since 1997, YCSWRA has complied with the 1997 Consent Order by, among other things, identifying all actions taken at the Site pursuant to the 1984 PADER Agreement, performed monitoring to assess the effectiveness of the actions taken pursuant to the 1984 PADER Agreement on down gradient surface water and wetland habitat and the impact of the treated effluent discharge on the environmental quality of surface waters where outfalls are located, implemented deed restrictions to prohibit the extraction of groundwater from the Site for drinking water and other residential uses; and implemented deed restrictions to prohibit all extraction or disturbance of the soil cap which may result in the exposure of fill material (except for certain limited exceptions). Deed restrictions were developed and placed in the deed to the Site by filing the restrictions with the Recorder of Deeds. The deed restrictions prohibit the use of ground water at the Site and prohibit unauthorized excavation or disturbance of the soil cap. The continued need for deed restrictions will be reevaluated during the Five-Year Reviews which will be conducted for the Site.

On September 27, 2004 EPA issued an Explanation of Significant Differences (ESD) which announced a significant, but not fundamental, change to the remedial action selected in the ROD. The ESD eliminated the items numbered 1-4 in the list above from the components of the remedial action. EPA made this change because (a) the 1984 PADER Agreement requires that YCSWRA conduct these actions under PADEP's oversight, (b) based on YCSWRA's past performance under the 1984 PADEP Agreement, EPA expects that YCSWRA will continue to conduct these actions under PADEP's oversight, and (c) YCSWRA is required, under the 1997 Consent Order with EPA, to report to EPA all actions taken to comply with the 1984 PADEP Agreement on a monthly basis. The ESD explained that EPA will continue to monitor YCSWRA's performance of these actions that are required by the 1984 PADEP Agreement through the monthly reports received pursuant to the 1997 Consent Order.

An assessment of the risk associated with the Site was conducted during the Remedial Investigation to characterize the current and potential threats to human health and the environment based on reasonable maximum exposures to contaminants in the ground water, soil, migration of contaminants to surface water, sediments, and exposure to the air. The Risk Assessment (RA) identified ground water contamination beneath and beyond the boundaries of the Site as posing an unacceptable level of risk. The RA was used to evaluate the need for remedial action and to determine the levels to which site related contaminants would need to be treated to ensure the protection of human health and the environment. Current land use in the vicinity of the Site is residential and agricultural and is expected to remain as such in the future. Ground water beneath the Site is classified as a source of drinking water and contaminants from the Site have migrated towards private drinking water wells through the ground water flow system. Residents who obtain water from private wells which have an in-place point of entry (POE) carbon filter treatment systems filter treatment system. The supply, maintenance and proper disposal of the filters is conduced by YCSWRA and is required by the 1984 PADER Agreement.

Currently there is a 3 1/2 -13 foot vegetated soil cover over the former landfill. As a result no risk to human health or the environment is currently present nor should any future risk occur as long as the cap integrity is maintained.

The YCSWRA maintains a permanent office at the landfill and performs regularly scheduled monitoring and response activities which include monitoring NPDES discharges, flow rates from remediation wells, depth-to-water in remediation wells, water quality in remediation and monitoring wells, water quality in residential wells, and groundwater flow; maintaining residential filters; and maintaining the cap and vegetative cover. Pumping and treating, which is being completed under the 1984 PADER Agreement, has been successful in containing contaminated ground water and in providing a potable water supply to residents with impacted wells. Pumping and treating will be continued until the maximum contaminant levels (MCLs) for each contaminant of concern or background, which ever is more stringent, is achieved and maintained throughout the entire plume of contamination for a period of 12 consecutive quarters. Residential filtration units will continue to be maintained for those residences whose wells are affected.

The NCP requires that if EPA selects remedial action that results in any hazardous substances remaining at a site above levels that allow for unlimited use and unrestricted exposure, EPA must conduct a review of such remedial action no less often than every five years following initiation of that remedial action to ensure that human health and the environment are being protected. EPA has determined as a matter of policy that such reviews will also be conducted if a removal action leaves hazardous substances on site above levels that allow for unlimited use and unrestricted exposure and no remedial action has taken or will take place. Since ground water contamination remains at the Site above levels that allow for unlimited use and unrestricted exposure, EPA will use the five-year review process to ensure protection of human health and the environment. EPA completed the first five-year review of the Site on September 30, 2002. In that five-year review, EPA determined that the immediate threats have been addressed and the actions taken have been protective of human health and the environment. EPA plans to complete the next five year review prior to September 30, 2009.

Public participation activities have been satisfied as required in CERCLA Section 113(k), 42 U.S.C. 9613(k), and CERCLA Section 117, 42 U.S.C 9617. Documents in the deletion docket which EPA relied on for recommendation of the deletion from the NPL are available to the public in the information repositories.

The EPA, with the concurrence of the Commonwealth of Pennsylvania, has determined that all appropriate responses under CERCLA have been completed, and that no further response actions, under CERCLA, other than O&M of the existing treatment system which will be completed under the 1984 PADER Agreement and five-year reviews, are necessary. Therefore, EPA is deleting the Site from the NPL.

Because EPA considers this action to be noncontroversial and routine, EPA is taking it without prior publication of a notice of intent to delete. This action will be effective February 14, 2005 unless EPA receives adverse comments by January 13, 2005 on a parallel notice of intent to delete published in the Proposed Rule section of today's Federal Register . If adverse comments are received within the 30-day public comment period on the proposal, EPA will publish a timely withdrawal of this direct final notice of deletion before the effective date of the deletion and the deletion will not take effect. EPA will prepare a response to comments and continue with the deletion process on the basis of the notice of intent to delete and the comments already received. There will be no additional opportunity to comment.

In 1981, Congress enacted the civil money penalty statute, section 1128A of the Social Security Act (the Act) (42 U.S.C. 1320a-7a), as one of several administrative remedies to combat increases in fraud and abuse. The civil money penalty (CMP) law authorized the HHS Secretary and the Inspector General to impose CMPs and program exclusions on individuals and entities whose wrongdoing caused injury to HHS programs or their beneficiaries. Since 1981, the CMP provisions have been expanded to apply by reference to numerous types of fraudulent and abusive activities.

Section 101 of the Medicare Prescription Drug, Improvement, and Modernization Act (MMA) of 2003, as enacted by Public Law 108-173 and codified in section 1860D-31 of the Act, provides for a voluntary prescription drug discount card program for Medicare beneficiaries entitled to benefits, or enrolled, under Part A or enrolled under Part B, excluding beneficiaries entitled to medical assistance for outpatient prescription drugs under Medicaid, including section 1115 waiver demonstrations. Eligible beneficiaries may access negotiated prices on prescription drugs by enrolling in drug discount card programs offered by Medicare-endorsed sponsors. 1 The Medicare drug discount card program is intended to serve as a transitional program providing immediate assistance to Medicare beneficiaries with prescription drug costs during calendar years 2004 and 2005 while preparations are made for implementation of the Medicare drug benefit under Medicare Part D in 2006.

The implementing regulations establishing the requirements for the MMA program were published in the Federal Register as an interim final rule with comment period by the Centers for Medicare & Medicaid Services (CMS) on December 15, 2003 (68 FR 69840). 2

Sections 1860D-31(b)(1) and (2) of the Act, and 42 CFR 403.810(a) and (b) of the CMS regulations, establish the eligibility criteria for the Medicare drug discount card program and for transitional assistance. Section 1860D-31(f)(1)(A) of the Act directs the Secretary to specify the procedures for determining a beneficiary's eligibility for the Medicare drug discount card program or transitional assistance, and section 1860D-31(c)(1) directs the Secretary to establish a process for eligible beneficiaries enrolling in, and disenrolling from, an endorsed program. These provisions have been codified, respectively, in 42 CFR 403.810 and 403.811 of the CMS regulations.

Section 1860D-31(a)(1)(A) of the Act requires the Secretary to endorse qualified applicants seeking to offer endorsed discount card programs to Medicare beneficiaries. MMA sets forth specific requirements that applicants must satisfy to be eligible for endorsement and that endorsed sponsors must meet to retain their endorsement. The obligations of endorsed sponsors related to eligibility determinations and enrollment are specifically set forth in section II.C.6. of the preamble to the interim final rule.

Under MMA, certain low-income Medicare beneficiaries enrolled in the Medicare drug discount card program are eligible to receive transitional assistance of up to $600 per year, which may be applied toward the cost of covered discount card drugs obtained under the program. Section 1860D-31(h)(1)(C) of the Act requires endorsed sponsors to administer the transitional assistance on behalf of CMS and to demonstrate to the Secretary that they have satisfactory arrangements to account for the transitional assistance provided to transitional assistance enrollees. These requirements are codified in 42 CFR 403.806(e).

Section 1860D-31(d)(2)(A) of the Act requires that each prescription drug card endorsed sponsor that offers an endorsed discount card program make available to beneficiaries eligible for the discount card program—through the internet and otherwise—information that the Secretary identifies as being necessary to promote informed choice among endorsed discount card programs, including information on enrollment fees and negotiated prices for covered discount card drugs. In addition, section 1860D-31(h)(7)(A) of the Act limits drug card endorsed sponsors to providing under their endorsements only products and services directly related to covered discount card drugs, or discounts on over-the-counter drugs; and section 1860D-31(h)(7)(B) prohibits endorsed sponsors from marketing, under their endorsements, any products and services other than those described in section 1860D-31(h)(7)(A). The requirements for information to be included in materials are contained in the CMS regulations at 42 CFR 403.806(g).

Section 1860D-31(i)(3) of the Act authorizes the imposition of CMPs against endorsed sponsors that knowingly engage in conduct that violates the requirements of section 1860D-31 of the Act or engage in false or misleading marketing practices. Section 403.820(b) of the CMS regulations interpreted this to mean that those endorsed sponsors that knowingly engage in conduct that violates the conditions of their endorsement agreement with the Department or that constitutes false or misleading marketing practices may be subject to CMPs.

The Department has divided the sanction authority between CMS and OIG. Where CMP authority is shared between CMS and OIG, the Department has assigned sanction authority to OIG for those violations that concern misleading or defrauding a beneficiary. The Department also assigned sanction authority to OIG for misuse of transitional assistance funds. 3 On the other hand, CMS has the authority to impose CMPs in those instances where the endorsed sponsor's conduct constitutes non-compliance with an operational requirement not directly related to beneficiary protection. (Section 403.820(b)(2) of the CMS regulations sets forth a full listing of the CMS CMP authorities related to the Medicare prescription drug card program.)

As a result, in accordance with CMS's Medicare prescription drug discount card implementing regulations (68 FR 69787; December 15, 2003), in addition to or in place of sanctions that CMS may impose, as set forth in 42 CFR 403.820(a), OIG has been authorized to impose CMPs against an endorsed sponsor whom it determines knowingly (as defined in 42 CFR 1003.102(e)):

• Misrepresented or falsified information in outreach material or comparable material provided to a program enrollee or other person;

• Charged a program enrollee in violation of the terms of the endorsement contract; or

• Used transitional assistance funds in any manner that is inconsistent with the purpose of the transitional assistance program.

OIG may impose CMPs of no more than $10,000 for each of these violations. A violation is deemed to occur in each instance when an endorsed sponsor (1) provides misleading information to a program enrollee or other person; (2) overcharges a program enrollee; or (3) misuses the transitional assistance funds of a program enrollee. Appeal rights will be afforded in accordance with the appeal procedures set forth in 42 CFR parts 1003 and 1005.

On May 19, 2004, we published in the Federal Register (69 FR 28842) an interim final rule with comment period to address these new OIG civil money penalty authorities. The interim final rule amended 42 CFR part 1003 as follows:

• In § 1003.100, Basis and purpose, we revised paragraphs (a) and (b) to state the broad purpose of these new CMP authorities.

• In § 1003.101, Definitions, we added a definition for the term “transitional assistance,” consistent with the definition in 42 CFR 403.802.

• In § 1003.102, Basis for CMPs and assessments, we added new paragraphs (b)(17), (b)(18) and (b)(19) to cross-reference the implementing CMS regulations and OIG's authority to impose penalties for violations.

• In § 1003.103, Amount of penalty, we added a new paragraph (k) to address the $10,000 maximum penalty amounts for each of these violations.

The interim final rule noted that in addition to the CMPs set forth above, a card sponsor's misuse of the Medicare name or emblem may subject them to CMPs in accordance with 42 U.S.C. 1320b-10 and OIG regulations at § 1003.102(b)(7), which prohibit the misuse of the Medicare name and emblem. In general, in accordance with the statute and the implementing regulations, OIG may impose penalties on any person who misuses the term “Medicare,” or other names associated with DHHS in any item constituting a communication in a manner which the person knows or should know gives the false impression that the item is approved, endorsed, or authorized by the Department. Violators are subject to fines of up to $5,000 per violation or, in the case of a broadcast or telecast violation, $25,000.

We received no public comments in response to the May 19, 2004 interim final rule.

The provisions of this final rule are identical to the provisions of the May 19, 2004 interim final rule with comment period.

We have examined the impacts of this rule as required by Executive Order 12866, the Regulatory Flexibility Act (RFA) of 1980, the Unfunded Mandates Reform Act of 1995, and Executive Order 13132.

Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulations are necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health, and safety effects; distributive impacts; and equity). A regulatory impact analysis must be prepared for major rules with economically significant effects ($100 million or more in any given year). This is not a major rule as defined at 5 U.S.C. 804(2), and it is not economically significant since it would not have a significant effect on program expenditures and there would be no additional substantive cost to implement the resulting provisions. OIG has significant experience in enforcing CMPs for a wide variety of violations and fraudulent conduct. Over the past three fiscal years (FYs), total CMPs levied by OIG for various violations and fraudulent conduct has averaged about $2.2 million annually ($1.1 million in FY 2001; $2.4 million in FY 2002; and $3.1 million in FY 2003). In addition, the revisions to 42 CFR part 1003 set forth in this rule are designed to further clarify statutory requirements, and hence the economic effect of these regulatory provisions should impact only those limited few endorsed sponsors that would perhaps engage in prohibited behavior in violation of the statute. Given OIG's enforcement history and the nature of the entities subject to CMPs, we do not believe that these regulations will result in a significant economic impact or have an appreciable effect on the economy or on Federal or State expenditures.

The RFA, and the Small Business Regulatory Enforcement and Fairness Act of 1996, which amended the RFA, require agencies to analyze options for regulatory relief of small businesses. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and government agencies. Most providers are considered to be small entities by having revenues of $6 million to $29 million or less in any one year. For purposes of the RFA, most physicians and suppliers are considered to be small entities. In addition, section 1102(b) of the Social Security Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural providers. This analysis must conform to the provisions of section 604 of the RFA.

Because of the requirements to be an endorsed sponsor, we anticipate that few, if any, endorsed sponsors will be small entities and none will be rural providers. However, even if some sponsored entities are small entities, we believe that the aggregate economic impact of this rulemaking is minimal since it is the nature of the conduct and not the size or type of the entity that would result in a violation of the statute and the regulations. As a result, we have concluded that this rulemaking rule should not have a significant impact on the operations of a substantial number of small or rural providers, and that a regulatory flexibility analysis is not required for this rulemaking.

Section 202 of the Unfunded Mandates Reform Act of 1995 (Public Law 104-4) also requires that agencies assess anticipated costs and benefits before issuing any rule that may result in expenditure in any one year by State, local, or tribal governments, in the aggregate, or by the private sector, of $110 million. As indicated, these proposed revisions comport with congressional and statutory intent and clarify the Department's legal authorities against those who defraud or otherwise act improperly against the Federal and State health care programs. As a result, we believe that there are no significant expenditures required by these revisions that would impose any mandates on State, local, or tribal governments, or the private sector that will result in an expenditure of $110 million or more (adjusted for inflation) in any given year, and that a full analysis under the Unfunded Mandates Reform Act is not necessary.

Executive Order 13132, Federalism, establishes certain requirements that an agency must meet when it promulgates a rule that imposes substantial direct requirements or costs on State and local governments, preempts State law, or otherwise has Federalism implications. In reviewing this rule under the threshold criteria of Executive Order 13132, we have determined that this proposed rule would not significantly affect the rights, roles, and responsibilities of State or local governments.

The Office of Management and Budget (OMB) has reviewed this final rule in accordance with Executive Order 12866.

The provisions of this rulemaking impose no express new reporting or recordkeeping requirements on health care providers or endorsed sponsors.

46 App. U.S.C. 1295b(e)(5) states that the Maritime Administrator, relying on a delegation of authority from the Secretary may defer the service obligation of any student graduating from the USMMA for up to two years provided that student is enrolled in an approved course of study.

46 CFR 310.58(g) states that the Maritime Administrator may grant a deferment of a service obligation contract, for up to two years only for graduate students enrolled in a marine or maritime-related graduate course of study approved by the Administrator.

The differences in the terms of 46 App. U.S.C. 1295b(e)(5) and 46 CFR 310.58 may hinder midshipmen with superior credentials from pursuing postgraduate scholarships and fellowships. Specifically, since service obligations may be deferred only if postgraduate course work involves a marine or maritime-related course of study, graduate studies are limited.

The Administrator's discretion to defer the service obligations of USMMA midshipmen recipients of scholarships is not limited by the U.S. Code. Therefore, we are amending 46 CFR 310.58(g) to reflect the terms of 46 App. U.S.C. 1295b(e)(5) so that the amended regulation will not condition the Administrator's ability to defer the service obligations of recipients of scholarships and fellowships of national significance on enrollment in a marine or maritime-related course of study.

On May 20, 2004, MARAD published the interim final rule that preceded this action in the Federal Register (69 FR 29079). While MARAD solicited public comments on the interim rule, no comments were received. Accordingly, MARAD adopts the interim final rule as a final rule without change.

This final rule is not considered 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 likely to result in an annual effect on the economy of $100 million or more. This final rule is also not significant under the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034, February 26, 1979). The costs and overall economic impact of this rulemaking are so minimal that no further analysis is necessary.

The Administrative Procedure Act (5 U.S.C. 553) provides an exception to notice and comment procedures when they are unnecessary or contrary to the public interest. MARAD finds that under 5 U.S.C. 553(b)(3)(B), good cause exists for not providing notice and comment since this final rule only expands the subject area of courses of study that may be approved by the Maritime Administrator. Under 5 U.S.C. 553(d)(3), MARAD finds that, for the same reason listed above, good cause exists for making this rule effective less than 30 days after publication in the Federal Register .

We analyzed this final rule in accordance with the principles and criteria contained in E.O. 13132 (“Federalism”) and have determined that it does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. The regulations have no substantial effect on the States, the current Federal-State relationship, or the current distribution of power and responsibilities among local officials. Therefore, consultation with State and local officials was not necessary.

The Maritime Administrator certifies that this final rule will not have a significant economic impact on a substantial number of small entities. This final rule merely broadens the area of consideration for courses of study that may allow deferred service obligations.

MARAD does not believe that this final rule will significantly or uniquely affect the communities of Indian tribal governments when analyzed under the principles and criteria contained in Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments). Therefore, the funding and consultation requirements of this Executive Order do not apply.

We have analyzed this final rule for purposes of compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ) and have concluded that under the categorical exclusions provision in section 4.05 of Maritime Administrative Order (MAO) 600-1, “Procedures for Considering Environmental Impacts,” 50 FR 11606 (March 22, 1985), neither the preparation of an Environmental Assessment, an Environmental Impact Statement, nor a Finding of No Significant Impact for this rulemaking is required. This rulemaking has no environmental impact.

This rulemaking contains no new or amended information collection or recordkeeping requirements that have been approved or require approval by the Office of Management and Budget.

This final rule will not impose an unfunded mandate under the Unfunded Mandates Reform Act of 1995. It will not result in costs of $100 million or more, in the aggregate, to any of the following: State, local, or Native American tribal governments, or the private sector. This final rule is the least burdensome alternative that achieves this objective of U.S. policy.

Federal regulations at 50 CFR part 679 implementing the Fishery Management Plan (FMP) for Groundfish of the GOA govern the groundfish fisheries in the GOA. The North Pacific Fishery Management Council (Council) prepared the FMP, and NMFS approved it under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). General regulations that also pertain to the U.S. fisheries appear at subpart H of 50 CFR part 600.

In June 2004, the Council unanimously recommended revisions to the Steller sea lion protection measures in the GOA to alleviate some of the economic burden on coastal communities while maintaining protection for Steller sea lions and their critical habitat. These revisions would adjust pollock and Pacific cod fishing closures near four Steller sea lion haulouts and would revise seasonal management of pollock harvest. NMFS concluded in an Endangered Species Act, section 7, informal consultation, dated August 26, 2004, that fishing under the proposed revisions is not likely to adversely affect Steller sea lions beyond those effects already considered in the 2001 Biological Opinion on the Steller sea lion protection measures and its June 19, 2003, supplement (see ADDRESSES ). To implement these provisions, NMFS published a proposed rule on September 21, 2004 (69 FR 56384), inviting comments through October 21, 2004. The final rulemaking is expected before the beginning of the 2005 fishing year. If adopted, the pollock harvest management revisions would affect the annual specifications by extending the pollock A and C season dates from January 20 through February 25 to January 20 through March 10 and by providing clarification as to how the Regional Administrator would rollover under harvested amounts of pollock between seasons.

The Council met in October 2004 to review scientific information concerning groundfish stocks, including the 2003 SAFE report and the EA (see ADDRESSES ), and to recommend proposed 2005 and 2006 specifications. The Council recommended and NMFS proposed a total acceptable biological catch (ABC) of 514,864 mt and a TAC of 264,265 mt for the 2005 fishing year and a total ABC of 514,240 mt and a TAC of 253,867 mt for the 2006 fishing year. The proposed TAC amounts for each species were based on the best available biological and socioeconomic information.

Under § 679.20(c)(1)(ii), NMFS published in the Federal Register proposed harvest specifications for groundfish in the GOA for the 2005 and 2006 fishing years (December 7, 2004; 69 FR 70605). That document contains a detailed discussion of the proposed 2005 and 2006 TACs, groundfish reserves, apportionments of TAC, ABC amounts, overfishing levels (OFLs), PSC amounts, and apportionments of the GOA groundfish fishery.

This action provides interim harvest specifications and apportionments for the 2005 fishing year that will become available on January 1, 2005, and will remain in effect until superseded by the final 2005 and 2006 harvest specifications. Background information concerning the 2005 groundfish harvest specification process, upon which this interim action is based, is provided in the above mentioned proposed specification document.

Section 679.20(c)(2)(i) requires that one-fourth of each proposed TAC and apportionment (not including the reserves and the first seasonal allowance of pollock and Pacific cod) and one-fourth of the halibut PSC amounts become effective at 0001 hours, A.l.t., January 1, on an interim basis and remain in effect until superseded by the final harvest specifications. As stated in the proposed specifications (December 7, 2004; 69 FR 70605), no harvest of groundfish is authorized before the effective date of this action implementing the interim harvest specifications.

Section 679.20(a)(6)(i) and (ii) allocates 100 percent of the pollock TAC to vessels catching pollock for processing by the inshore component, 90 percent of the Pacific cod TAC to vessels catching Pacific cod for processing by the inshore component, and 10 percent to vessels catching Pacific cod for processing by the offshore component.

The reserves for the GOA are 20 percent of the TAC amounts for pollock, Pacific cod, flatfish species, and the “other species” category (§ 679.20(b)(2)). The GOA groundfish TAC amounts have been utilized fully since 1987, and NMFS expects this trend to continue in 2005. Therefore, NMFS has proposed reapportioning all the reserves to TAC. The interim TAC amounts contained in Table 1 reflect the reapportionment of reserves to the TAC.

Table 1 provides interim TAC amounts, the first seasonal allowance of pollock in the combined Western and Central Regulatory Areas, the first seasonal allowance of Pacific cod in the Western and Central Regulatory Areas, interim TAC allocations of Pacific cod to the inshore and offshore components, and interim sablefish TAC apportionments to hook-and-line and trawl gear. These interim TAC amounts and apportionments become effective at 0001 hours, A.l.t., January 1, 2005.

Under § 679.21(d), annual halibut PSC limits are established for trawl and hook-and-line gear and may be established for pot gear. The Council recommended and NMFS proposed to reestablish the 2004 halibut mortality limits for 2005 because no new information was available. Consistent with 2004, the Council recommended and NMFS proposed exemptions for pot gear, jig gear, and the sablefish hook-and-line fishery from halibut PSC limits for 2005. The fishery specific interim PSC allowances for halibut are in effect at 0001 hours, A.l.t., January 1, 2005, and remain in effect until superseded by the final 2005 harvest specifications. The interim halibut PSC limits are (1) 500 mt to trawl gear, (2) 72.5 mt to hook-and-line gear for fisheries other than demersal shelf rockfish, and (3) 2.5 mt to hook-and-line gear for the demersal shelf rockfish fishery in the Southeast Outside District.

Section 679.21(d)(3)(iii) authorizes apportionments of the trawl halibut PSC limit as bycatch allowances to a deep-water species complex, comprised of rex sole, sablefish, rockfish, deep-water flatfish, and arrowtooth flounder, and a shallow-water species complex, comprised of pollock, Pacific cod, shallow-water flatfish, flathead sole, Atka mackerel, skates, and “other species.” The interim 2005 apportionment for the shallow-water species complex is 409 mt, and for the deep-water species complex is 91 mt.

Section 679.64 established groundfish harvesting and processing sideboard limits on AFA catcher/processors and catcher vessels in the GOA. These sideboard limits are necessary to protect the interests of fishermen and processors who do not directly benefit from the AFA from fishermen and processors who have received exclusive harvesting and processing privileges under the AFA. In the GOA, listed AFA catcher/processors are prohibited from fishing for any species of fish (§ 679.7(k)(1)(ii)) and from processing any groundfish harvested in Statistical Area 630 of the GOA (§ 679.7(k)(1)(iv)). The Council recommended and NMFS concurs that certain AFA catcher vessels in the GOA be exempt from groundfish sideboard limits. Section 679.64(b)(2)(ii) exempts AFA catcher vessels in the GOA less than 125 ft (38.1 m) length overall (LOA) whose annual Bering Sea and Aleutian Islands management area pollock landings totaled less than 5,100 mt and that made 40 or more GOA groundfish landings from 1995 through 1997.

For non-exempt AFA catcher vessels in the GOA, sideboard limits are based upon their traditional harvest levels of TAC in groundfish fisheries covered by the GOA FMP. Section 679.64(b)(3)(iii) establishes the groundfish sideboard limits in the GOA based on the retained catch of non-exempt AFA catcher vessels of each sideboard species from 1995 through 1997 divided by the TAC for that species over the same period. These amounts are listed in Table 2. All catch of sideboard species made by non-exempt AFA catcher vessels, whether as targeted catch or as incidental catch, will be deducted from the sideboard limits in Table 2.

In accordance with § 679.64(b)(4), PSC bycatch limits for the non-exempt AFA catcher vessels in the GOA are based on the ratio of aggregate retained groundfish catch by non-exempt AFA catcher vessels in each PSC target category from 1995 through 1997, relative to the retained catch of all vessels in that fishery from 1995 through 1997. These amounts are shown in Table 3.

In accordance with § 679.20(d)(1)(i), if the Regional Administrator determines that any allocation or apportionment of a target species or “other species” category apportioned to a fishery or, with respect to pollock and Pacific cod, to an inshore or offshore component allocation will be reached, the Regional Administrator may establish a directed fishing allowance for that species or species group. If the Regional Administrator establishes a directed fishing allowance and that allowance is or will be reached before the end of the fishing year, NMFS will prohibit directed fishing for that species or species group in the specified GOA regulatory area or district (§ 679.20(d)(1)(iii)).

The Regional Administrator has determined that the following TAC amounts in Table 4 are necessary as incidental catch to support other anticipated groundfish fisheries for the 2005 fishing year.

In accordance with § 679.20(d)(1)(i), the Regional Administrator establishes the directed fishing allowances for the above species or species groups as zero. Therefore, in accordance with § 679.20(d)(1)(iii), NMFS is immediately prohibiting directed fishing for those species, areas, gear types, and components listed in Table 4. These closures will remain in effect until superceded by the final 2005 harvest specifications.

Section 679.64(b)(5) provides for management of AFA catcher vessel groundfish harvest limits and PSC bycatch limits using directed fishing closures and PSC closures according to procedures set out at §§ 679.20(d)(1)(iv), 679.21(d)(8), and 679.21(e)(3)(v). The Regional Administrator has determined that, in addition to the closures listed above, many of the non-exempt AFA catcher vessel sideboard limits listed in Table 2 are necessary as incidental catch to support other anticipated groundfish fisheries for the 2005 fishing year. In accordance with § 679.20(d)(1)(iv), the Regional Administrator establishes these amounts as directed fishing allowances. The Regional Administrator finds that many of these directed fishing allowances will be reached before the end of the year. Therefore, in accordance with § 679.20(d)(1)(iii), NMFS is prohibiting directed fishing by non-exempt AFA catcher vessels in the GOA for the species and specified areas in Table 5. These closures will remain in effect until superceded by the final 2005 harvest specifications.