The FAA has determined that notice and opportunity for prior public comment is impractical because these procedures would significantly delay issuance of approval and thus delivery of the affected aircraft. In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. 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 CE225.” The postcard will be date stamped and returned to the commenter.

On May 24, 2005, Adam Aircraft Industries applied for a type design change, to include the new Adam Aircraft Industries Model A500 airplane for the installation of an AMSAFE four-point safety belt restraint system incorporating an inflatable airbag for the pilot and co-pilot seats. The Adam Model A500 is a twin engine, six-place airplane, currently approved under Type Certificate No. A00009DE.

The inflatable restraint system is four-point safety belt restraint system consisting of a lap belt and dual shoulder harnesses. An inflatable airbag is attached to one of the shoulder harnesses, and the other shoulder harness is of conventional construction. The inflatable portion of the restraint system will rely on sensors to electronically activate the inflator for deployment. The inflatable restraint system will be installed on both the pilot and co-pilot seats.

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 one of the shoulder harnesses. While airbags and inflatable restraints are standard in the automotive industry, the use of an inflatable four-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 Adam Aircraft Industries Model A500 occupant restraint systems. 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 latter point has the potential to be the more rigorous of the requirements. An unexpected deployment while conducting the takeoff or landing phases of flight may result in an unsafe condition. The unexpected deployment may either startle the pilot or generate a force sufficient to cause a sudden movement of the control yoke. Either action could result in a loss of control of the airplane, the consequences of which are magnified due to the low operating altitudes during these phases of flight. The FAA has considered this when establishing these special conditions.

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. Adam Aircraft Industries 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.

Any tendency for the firing mechanism to activate as a result of these loads or acceleration levels is unacceptable.

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 Adam Aircraft Industries Model A500 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 model A500 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.

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, Adam Aircraft Industries may show that such deployment is not hazardous to the occupant and will still provide the required protection.

The cabins of the Adam Model A500 airplanes identified in these special conditions are confined areas, and the FAA is concerned that noxious gases 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 a reasonable time. This time limit will offer a level of protection throughout the impact event.

Under the provisions of § 21.101, Adam Aircraft Industries, must show that the Adam Aircraft Model A500, as changed, continues to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A00009DE 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 in Type Certificate No. A00009DE are as follows:

Adam A500: Title 14, Code of Federal Regulations, Part 23, dated February 1, 1965, as amended by Amendment 23-1 through 23-55.

For the model 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 this Adam Aircraft Industries model 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 Adam Aircraft Industries Model A500 will incorporate the following novel or unusual design feature:

The AMSAFE, Inc., Four-Point Safety Belt Restraint System incorporating an inflatable airbag for the pilot and co-pilot seats. 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 one shoulder harness, in a manner similar to an automotive airbag. The airbag will deploy between the head of the occupant and airplane interior structure. Therefore, this will 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 the Adam Aircraft Industries models equipped with the AMSAFE, Inc., four-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 Adam Aircraft Industries Model A500 equipped with the AMSAFE, Inc., four-point inflatable restraint system. Should Adam Aircraft Industries, at a later date, request to modify any other model on the Type Certificate 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 Adam model. 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, the substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. For this reason, and because a delay would significantly affect the certification of the airplane, which is imminent, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

The FAA proposed to amend 14 CFR part 39 with an AD for certain AvCraft Dornier Model 328-100 and -300 airplanes. That action, published in the Federal Register on April 6, 2005 (70 FR 17370), proposed to require operators to install colored identification strips on the pulley brackets, fairlead bracket assemblies, operational assemblies, and flight control cables.

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

We have revised the applicability of the proposed AD to identify model designations as published in the most recent type certificate data sheet for the affected models.

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

The following table provides the estimated costs for U.S. operators to comply with this AD.

The following table provides the estimated costs for operators to comply with this AD if they have airplanes that are subject to the concurrent requirements.

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 regulatory evaluation of the estimated costs to comply with this AD. See the ADDRESSES section for a location to examine the regulatory evaluation.

The FAA proposed to amend 14 CFR part 39 with an AD for certain Avcraft Dornier Model 328-100 and -300 series airplanes. That action, published in the Federal Register on April 6, 2005 (70 FR 17357), proposed to require a pressure test and detailed inspection of each fuselage drain line to determine if there is a blockage, and related investigative/corrective actions if necessary.

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

We have revised the applicability of the proposed AD to identify model designations as published in the most recent type certificate data sheet for the affected models. In addition, we noticed that we had inadvertently reversed the qualifiers of the airplane models specified in the applicability of the proposed AD. The applicability for this AD has been corrected for this AD and now reads, “This AD applies to Avcraft Dornier Model 328-100 series airplanes having serial numbers 3005 through 3119 inclusive, and Avcraft Dornier Model 328-300 series airplanes without option 033F003 “Extended Range” installed; certificated in any category.”

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

We estimate that this AD affects about 53 Model 328-100 airplanes and 57 Model 328-300 airplanes of U.S. registry. The following table provides the estimated costs for U.S. operators to comply with this AD.

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 regulatory evaluation of the estimated costs to comply with this AD. See the ADDRESSES section for a location to examine the regulatory evaluation.

The FAA proposed to amend 14 CFR part 39 with an AD for certain BAE Systems (Operations) Limited Model BAe 146 and Avro 146-RJ airplanes. That action, published in the Federal Register on March 30, 2005 (70 FR 16185), proposed to require modifying the auxiliary power unit (APU) exhaust duct in the environmental control system bay; installing new, improved insulation on this APU exhaust duct; and replacing the existing drain pipe with a new exhaust drain pipe blank.

We have revised the applicability of the proposed AD to identify model designations as published in the most recent type certificate data sheet for the affected models.

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

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

This AD will affect about 65 airplanes of U.S. registry. The actions will take about 1 work hour per airplane, at an average labor rate of $65 per work hour. Required parts will cost about $3,766 per airplane. Based on these figures, the estimated cost of the AD for U.S. operators is $249,015, or $3,831 per airplane.

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 regulatory evaluation of the estimated costs to comply with this AD. See the ADDRESSES section for a location to examine the regulatory evaluation.

What events caused previous FAA AD action? The FAA has received a report of a Rockwell International Model SNJ-6 (AT-6F) airplane crash that occurred on May 9, 2005, resulting in two fatalities. The investigation revealed a large fatigue crack in the failed lower inboard wing attach angle. The aircraft was used for hire in aerobatic training.

On June 8, 2005, we issued emergency AD 2005-12-51 to require immediate and repetitive inspections of the inboard and outboard, upper and lower wing attach angles (except for the nose angles) of both wings for fatigue cracks; and, if any crack is found, replacement of the cracked angle with a new angle.

Why is it important to publish this AD? The FAA found that immediate corrective action was required, that notice and opportunity for prior public comment were impracticable and contrary to the public interest, and that good cause existed to make the AD effective immediately by individual letters issued on June 8, 2005, to all known U.S. operators of Rockwell International (Aircraft Specification No. A-2-575 previously held by North American and recently purchased by Boeing) Models AT-6 (SNJ-2), AT-6A (SNJ-3), AT-6B, AT-6C (SNJ-4), AT-6D (SNJ-5), AT-6F (SNJ-6), BC-1A, SNJ-7, and T-6G airplanes; and Autair Ltd. (Aircraft Specification No. AR-11 previously held by Noorduyn Aviation Ltd.) Model Harvard (Army AT-16) airplanes. These conditions still exist, and the AD is published in the Federal Register as an amendment to section 39.13 of the Federal Aviation Regulations (14 CFR 39.13) to make it effective to all persons.

Will FAA take future rulemaking action on this subject? The National Transportation Safety Board (NTSB) is still investigating the accident. When all information from the investigation becomes available, FAA may take additional AD action to address continued operational safety of the affected airplanes. This could include, but is not limited to, inspections, modifications, and/or replacement of critical components.

Will I have the opportunity to comment before you issue the rule? This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to submit any written relevant data, views, or arguments regarding this AD. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2005-24163; Directorate Identifier 2005-CE-30-AD” in the subject line of your comments. If you want us to acknowledge receipt of your mailed comments, send us a self-addressed, stamped postcard with the docket number written on it; we will date-stamp your postcard and mail it back to you. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify it. If a person contacts us through a nonwritten communication, and that contact relates to a substantive part of this AD, we will summarize the contact and place the summary in the docket. We will consider all comments received by the closing date and may amend the AD in light of those comments.

What authority does FAA have for issuing this rulemaking action? 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 AD.

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

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

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

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

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

We prepared a summary of the costs to comply with this AD (and other information as included in the Regulatory Evaluation) 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 “Docket No. FAA-2005-24163; Directorate Identifier 2005-CE-30-AD” in your request.

GE has informed us that cracks have been found in some retired stage 1 disk and shafts which were removed from military T64 engines and are equivalent to the CT64-820-4 P/Ns 6004T47P03 and 4921T10P02. The cracks were located at “small feature” locations. A “small feature” location is any rotating hardware feature with drawing radii less than 0.020-inch, that could become potentially life limiting. These cracks were difficult to find due to the nature of their geometry and location on the part. The cracks were confirmed upon metallurgical evaluation of cut-up sections of those parts. This condition, if not corrected, could result in an uncontained failure of the stage 1 turbine disk and shaft, resulting in damage to the airplane.

GE is aware of about 50 engines that are in service. Three of these engines have the affected parts. GE has coordinated the compliance plan with the operator of these three certain serial number engines. The specific compliance times for these engines minimize adverse operator impact, yet maintain the interests of safety. GE is aware of approximately 90 additional engines for which GE does not know if the engines are in service or if they have the affected parts. GE has established the additional removal-from-service compliance times for these other engines in the event that any are still in service. We are using GE's compliance times in this AD.

Although no airplanes that are registered in the United States use these engines, the possibility exists that the engines could be used on airplanes that are registered in the United States in the future. The unsafe condition described previously is likely to exist or develop on other CT64-820-4 turboprop engines of the same type design. We are issuing this AD to prevent uncontained failure of the stage 1 turbine disk and shaft, resulting in damage to the airplane. This AD requires removing from service stage 1 turbine disk and shafts, P/Ns 6004T47P03 and 4921T10P02 at reduced compliance times.

Since there are currently no domestic operators of this engine model, notice and opportunity for public comment before issuing this AD are unnecessary. A situation exists that allows the immediate adoption of this regulation.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to send us any written relevant data, views, or arguments regarding this AD. Send your comments to an address listed under ADDRESSES. Include “AD Docket No. FAA-2005-21586; Directorate Identifier 2005-NE-16-AD” in the subject line of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify it.

We will post all comments we receive, without change, to http://dms.dot.gov , including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this AD. Using the search function of the DMS Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78) or you may visit http://dms.dot.gov .

You may examine the docket that contains the AD, any comments received, and any final disposition in person at the DMS Docket Offices between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone (800) 647-5227) is located on the plaza level of the Department of Transportation Nassif Building at the street address stated in ADDRESSES . Comments will be available in the AD docket shortly after the DMS receives them.

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 the regulation:

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

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

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

We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary at the address listed under ADDRESSES.

On April 27, 2005, a notice proposing to amend Part 71 of the Federal Aviation Regulations (14 CFR Part 71) by establishing a Class E airspace area at Sutton, WV, was published in the Federal Register (70 FR 21695-21696). The proposed action would provide controlled airspace to accommodate Standard Instrument Approach Procedures (SIAP), based on area navigation (RNAV), to Braxton County Airport. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA on or before May 27, 2005. No comments to the proposal were received. The rule is adopted as proposed. The coordinates for this airspace docket are based on North America Datum 83. Class E airspace area designations for airspace extending upward from the surface of the earth are published in paragraph 6005 of FAA Order 7400.9M, dated August 30, 2004, and effective September 16, 2004, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published in the Order.

This amendment to Part 71 of the Federal Aviation Regulations (14 CFR Part 71) provides controlled Class E airspace extending upward from 700 feet above the surface for aircraft conducting IFR operations within an 8-mile radius of Braxton County Airport, Sutton, WV.

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. Therefore, this regulation: (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. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

On May 5, 2005, a notice proposing to amend Part 71 of the Federal Aviation Regulations (14 CFR Part 71) by establishing Class E-2 airspace area at Bar Harbor, ME, was published in the Federal Register (70 FR 23810-23811). The proposed action would provide controlled airspace to accommodate Standard Instrument Approach Procedures (SIAP) to Hancock County-Bar Harbor Airport. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA on or before June 6, 2005. No comments to the proposal were received. The rule is adopted as proposed.

The coordinates for this airspace docket are based on North American Datum 83. Class E airspace area designations for airspace extending upward from the surface of the earth are published in paragraph 6005 of FAA Order 7400.9M, dated August 30, 2004, and effective September 16, 2004, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published in the Order.

This amendment to Part 71 of the Federal Aviation Regulations (14 CFR Part 71) provides controlled Class E airspace extending upward from the surface for aircraft conducting IFR operation into Hancock County-Bar Harbor Airport, Bar Harbor, ME.

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. Therefore, this regulation: (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. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Section 201(b)(1) of Public Law 106-395, the Child Citizenship Act of 2000, amended section 212(a)(10) of the Immigration and Nationality Act (INA) by adding an exception to the ground of inadmissibility, INA 212(a)(10)(D), for aliens who voted in violation of U.S. law.

Under new INA 212(a)(10)(D), in general, an alien will continue to be inadmissible, and therefore ineligible for a visa, if the alien has voted in violation of any Federal, State, or local constitutional provision, statute, ordinance, or regulation. Nevertheless, pursuant to the new exception, the alien shall not be considered to be inadmissible under any provision of this subsection based on such violation if each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturalization), the alien permanently resided in the United States prior to attaining the age of 16, and the alien reasonably believed at the time of such violation that he or she was a citizen.

Publication of this regulation as an interim rule is based upon the “good cause” exceptions found 5 U.S.C. 553(b). The amendment to the regulation simply implements a legislative mandate without interpretation and codifies current practices. Therefore, we determined that it is appropriate to publish this rule as an interim rule. Nevertheless, we will solicit comments from the public.

The Department of State, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities.

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

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

The Department of State does not consider this rule to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. In addition, the Department is exempt from Executive Order 12866 except to the extent that it is not promulgating regulations in conjunction with a domestic agency that are significant regulatory actions. The Department has nevertheless reviewed the regulation to ensure its consistency with the regulatory philosophy and principles set forth in that Executive Order.

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

This rule does not impose any new reporting or record-keeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Logistical details surrounding the event were not finalized and presented to the Coast Guard in time to draft and publish an NPRM. As such, the event would occur before the rulemaking process was complete. Because of the dangers posed by the pyrotechnics used in this fireworks display, special local regulations are necessary to provide for the safety of event participants, spectator craft, and other vessels transiting the event area. For the safety concerns noted, it is in the public interest to have these regulations in effect during the event.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Any delay in the effective date of this rule would expose mariners to the dangers posed by the pyrotechnics used in this fireworks display.

The San Francisco Giants Baseball Team is sponsoring a brief fireworks display on July 19, 2005 on the waters of San Francisco Bay near SBC Park. The fireworks display is meant for entertainment purposes in support of the San Francisco Giants Baseball Team. These special local regulations are being issued to establish a temporary regulated area in San Francisco Bay around the fireworks launch barge during loading of the pyrotechnics, during the transit of the barge to the display location, and during the fireworks display. This regulated area around the launch barge is necessary to protect spectators, vessels, and other property from the hazards associated with the pyrotechnics on the fireworks barge. The Coast Guard has granted the event sponsor a marine event permit for the fireworks display.

The Coast Guard is establishing temporary special local regulations on specified waters off of the San Francisco waterfront. During the loading of the fireworks barge, while the barge is being towed to the display location, and until the start of the fireworks display, the special local regulations apply to the navigable waters around and under the fireworks barge within a radius of 100 feet. During the 15-minute fireworks display, the area to which these special local regulations apply will increase in size to encompass the navigable waters around and under the fireworks barge within a radius of 1,000 feet. Loading of the pyrotechnics onto the fireworks barge is scheduled to commence at 9 a.m. on July 19, 2005, and will take place at Pier 50 in San Francisco. Towing of the barge from Pier 50 to the display location is scheduled to take place between 8 p.m. and 10 p.m. on July 19, 2005. During the fireworks display, scheduled to commence immediately after the baseball game, the fireworks barge will be located approximately 1,000 feet off of Pier 48 in position 37°46′57.2″ N, 122°23′58.07″ W.

The effect of the temporary special local regulations will be to restrict general navigation in the vicinity of the fireworks barge while the fireworks are loaded at Pier 50, during the transit of the fireworks barge, and until the conclusion of the scheduled display. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the regulated area. These regulations are needed to keep spectators and vessels a safe distance away from the fireworks barge to ensure the safety of participants, spectators, and transiting vessels.

Pursuant to 33 U.S.C. 1236, persons violating these special local regulations may be liable as follows: suspension or revocation of the license of a licensed officer for incompetence or misconduct; civil penalty of $6,500 for any person in charge of the navigation of a vessel other than a licensed officer; civil penalty of $6,500 for the owner of a vessel (including any corporate officer of a corporation owning the vessel) who is actually on board; and $2,750 for any other person.

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 prevents traffic from transiting a portion of San Francisco Bay during the event, the effect of this regulation will not be significant due to the small size and limited duration of the regulated area. The entities most likely to be affected are pleasure craft engaged in recreational activities and sightseeing.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may effect owners and operators of pleasure craft engaged in recreational activities and sightseeing. This rule will not have a significant economic impact on a substantial number of small entities for several reasons: (i) Vessel traffic can pass safely around the area, (ii) vessels engaged in recreational activities and sightseeing have ample space outside of the effected portion of San Francisco Bay to engage in these activities, (iii) this rule will encompass only a small portion of the waterway for a limited period of time, and (iv) the maritime public will be advised in advance of these special local regulations via public notice to mariners.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. If the rule will affect your small business, organization, or government jurisdiction and you have questions concerning its provisions, options for compliance, or assistance in understanding this rule, please contact Ensign Trevor Parra, U.S. Coast Guard Marine Safety Office San Francisco Bay, at (510) 437-5873.

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

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

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

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

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

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

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

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

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

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

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

We have analyzed this rule under Commandant Instruction M16475.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)(h), of the Instruction, from further environmental documentation. Special local regulations issued in conjunction with a regatta or marine parade permit are specifically excluded from further analysis and documentation under those sections.

Under figure 2-1, paragraph (34)(h), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule.

Regulatory Information

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Logistical details surrounding the event were not finalized and presented to the Coast Guard in time to draft and publish an NPRM. As such, the event would occur before the rulemaking process was complete. Because of the dangers posed by the pyrotechnics used in this fireworks display, special local regulations are necessary to provide for the safety of event participants, spectator craft, and other vessels transiting the event area. For the safety concerns noted, it is in the public interest to have these regulations in effect during the event.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Any delay in the effective date of this rule would expose mariners to the dangers posed by the pyrotechnics used in this fireworks display.

The San Francisco Giants Baseball Team is sponsoring a brief fireworks display on June 21, 2005 in the waters of San Francisco Bay near SBC Park. The fireworks display is meant for entertainment purposes in support of the San Francisco Giants Baseball Team. These special local regulations are being issued to establish a temporary regulated area in San Francisco Bay around the fireworks launch barge during loading of the pyrotechnics, during the transit of the barge to the display location, and during the fireworks display. This regulated area around the launch barge is necessary to protect spectators, vessels, and other property from the hazards associated with the pyrotechnics on the fireworks barge. The Coast Guard has granted the event sponsor a marine event permit for the fireworks display.

The Coast Guard is establishing temporary special local regulations on specified waters off of the San Francisco waterfront. During the loading of the fireworks barge, while the barge is being towed to the display location, and until the start of the fireworks display, the special local regulations apply to the navigable waters around and under the fireworks barge within a radius of 100 feet. During the 20-minute fireworks display, the area to which these special local regulations apply will increase in size to encompass the navigable waters around and under the fireworks barge within a radius of 1,000 feet. Loading of the pyrotechnics onto the fireworks barge is scheduled to commence at 9 a.m. on June 21, 2005, and will take place at Pier 50 in San Francisco. Towing of the barge from Pier 50 to the display location is scheduled to take place between 8 p.m. and 10 p.m. on June 21, 2005. During the fireworks display, scheduled to commence immediately after the baseball game, the fireworks barge will be located approximately 1,000 feet off of Pier 48 in position 37° 46′57.2″ N, 122° 23′58.0″ W.

The effect of the temporary special local regulations will be to restrict general navigation in the vicinity of the fireworks barge while the fireworks are loaded at Pier 50, during the transit of the fireworks barge, and until the conclusion of the scheduled display. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the regulated area. These regulations are needed to keep spectators and vessels a safe distance away from the fireworks barge to ensure the safety of participants, spectators, and transiting vessels.

Pursuant to 33 U.S.C. 1236, persons violating these special local regulations may be liable as follows: suspension or revocation of the license of a licensed officer for incompetence or misconduct; civil penalty of $6,500 for any person in charge of the navigation of a vessel other than a licensed officer; civil penalty of $6,500 for the owner of a vessel (including any corporate officer of a corporation owning the vessel) who is actually on board; and $2,750 for any other person.

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 prevents traffic from transiting a portion of San Francisco Bay during the event, the effect of this regulation will not be significant due to the small size and limited duration of the regulated area. The entities most likely to be affected are pleasure craft engaged in recreational activities and sightseeing.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule is not expected to have a significant economic impact on a substantial number of entities, some of which may be small entities. This rule may effect owners and operators of pleasure craft engaged in recreational activities and sightseeing. This rule will not have a significant economic impact on a substantial number of small entities for several reasons: (i) Vessel traffic can pass safely around the area, (ii) vessels engaged in recreational activities and sightseeing have ample space outside of the effected portion of San Francisco Bay to engage in these activities, (iii) this rule will encompass only a small portion of the waterway for a limited period of time, and (iv) the maritime public will be advised in advance of these special local regulations via public notice to mariners.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. If the rule will affect your small business, organization, or government jurisdiction and you have questions concerning its provisions, options for compliance, or assistance in understanding this rule, please contact Lieutenant Doug Ebbers, U.S. Coast Guard Marine Safety Office San Francisco Bay, at (510) 437-2770.

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

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

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

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

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

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

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

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

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

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

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

We have analyzed this rule under Commandant Instruction M16475.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)(h), of the Instruction, from further environmental documentation.

Special local regulations issued in conjunction with a regatta or marine parade permit are specifically excluded from further analysis and documentation under those sections. Under figure 2-1, paragraph (34)(h), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. A notice of proposed rulemaking (NPRM) was not published for this regulation because the logistics with respect to the fireworks presentation were not determined with sufficient time to draft and publish an NPRM. Publishing an NPRM was impracticable; any delay encountered in this regulation's effective date would be contrary to the public interest since the safety zone is needed to prevent traffic from transiting a portion of Salem Harbor during the fireworks event and to provide for the safety of life on navigable waters

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Any delay encountered in this regulation's effective date would be contrary to public interest since the safety zone is needed to prevent traffic from transiting a portion of Salem Harbor during the fireworks display thus ensuring that the maritime public is protected from any potential harm associated with such an event. The zone should have minimal negative impact on vessel transits due to the fact that vessels will be excluded from the area for only 1.5 hours, and vessels will be able to transit in the majority of Salem Harbor during the event.

This temporary rule establishes a safety zone in Salem Harbor within a four hundred yard radius of the fireworks launch site located on Derby Wharf.

The zone will temporarily restrict movement within this portion of Salem Harbor and is needed to protect the maritime public from the dangers posed by a fireworks display. Marine traffic may transit safely outside of the zone during the effective period. The Captain of the Port does not anticipate any negative impact on vessel traffic due to this event. Public notifications will be made prior to the effective period via safety marine information broadcasts and local notice to mariners.

The safety zone is in effect from 8:30 p.m. EDT until 10 p.m. EDT July 4, 2005. Marine traffic may transit safely outside of the safety zone during the event thereby allowing navigation in the majority of Salem Harbor except the portion effected by the zone described herein. Because of the limited time-frame of the effective period and because the zone leaves the majority of Salem Harbor open for navigation, the Captain of the Port anticipates minimal negative impact on vessel traffic due to this event. Public notifications will be made prior to the effective period via Local Notice to Mariners and marine information broadcasts.

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).

The Coast Guard expects the economic impact of this rule to be so minimal that a full Regulatory Evaluation of the regulatory policies and procedures of DHS is unnecessary.

Although this rule prevents traffic from transiting a portion of Salem Harbor during the effective period, the effects of this rule will not be significant for several reasons: Vessels will be excluded from the area of the safety zone for only 1.5 hours, vessels will be able to operate in the majority of Salem Harbor during the effective period and advance notifications will be made to the local maritime community by marine information broadcasts and Local Notice to Mariners.

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 Salem Harbor from 8:30 p.m. EDT to 10 p.m. EDT on July 4, 2005.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: this rule will be in effect for only 1.5 hours, vessel traffic can safely pass around the safety zone, and advance notifications will be made to the local maritime community by marine information broadcasts and Local Notice to Mariners.

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

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

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

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

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

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

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

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

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

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

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

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

We have analyzed this rule under Commandant Instruction M16475.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. This rule fits the category selected from paragraph (34)(g), as it would establish a safety zone.

A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” will be available in the docket where indicated under ADDRESSES .

On April 11, 2005, we published a notice of proposed rulemaking (NPRM) entitled “Safety Zone: Macy's July 4th Fireworks, East River and Upper New York Bay, NY” in the Federal Register (70 FR 18343). We received no letters commenting on the proposed rule. No public meeting was requested, and none was held.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . This rule governs an annual July 4th event and is necessary to provide for the safety of life and property on navigable waters during a large-scale fireworks display.

The Coast Guard is revising 33 CFR 165.166, the permanent safety zone for the annual Macy's July 4th fireworks displays in the East River and Upper New York Bay, to protect a third fireworks discharge location near Liberty Island, which was not anticipated by the original regulation. The safety zone previously encompassed a portion of the East River from Roosevelt Island to Governor's Island and was defined as all waters of the East River east of a line drawn from the Fireboat Station Pier, Battery Park City, in approximate position 40°42′15.4″ N 074°01′06.8″ W (NAD 1983) to Governors Island Light (2) (LLNR 35010), in approximate position 40°41′34.4″ N 074°01′10.9″ W (NAD 1983); north of a line drawn from Governors Island, in approximate position 40°41′25.3″ N 074°00′42.5″ W (NAD 1983) to the southwest corner of Pier 9A, Brooklyn; south of a line drawn from East 47th Street, Manhattan through the southern point of Roosevelt Island to 46 Road, Brooklyn, and all waters of Newtown Creek west of the Pulaski Bascule Bridge. The revised regulation increases the size of the safety zone to include all waters of the Upper New York Bay south of a line drawn from Pier A (Fireboat Station Pier), Battery Park City, in approximate position 40°42′15.4″ N 074°01′06.8″ W (NAD 1983) to the easternmost corner of the Ellis Island Security Zone, in approximate position 40°41′57.6″ N 074°02′06.7″ W (NAD 1983); and north of a line drawn from Pier 7, Jersey City, NJ, in approximate position 40°41′26.4″ N 074°03′17.3″ W (NAD 1983) to Liberty Island Lighted Gong Buoy 29 (LLNR 34995), in approximate position 40°41′02.2″ N 074°02′24.7″ W (NAD 1983), on to Governor's Island Extension Light (LLNR 35000), in approximate position 40°41′08.3″ N 074°01′35.4″ W (NAD 1983).

The activation period for this expanded safety zone remains unchanged from the previous regulation. The expanded safety zone will remain effective from 6:30 p.m. until 11:30 p.m. on July 4th. If the event is cancelled due to inclement weather, then this safety zone will be effective from 6:30 p.m. until 11:30 p.m. on July 5th. The expanded safety zone prevents vessels from transiting these portions of the East River, Hudson River, and Upper New York Bay, and is needed to protect mariners from the hazards associated with fireworks launched from 6 barges in the area. No vessel may enter the safety zone without permission from the Captain of the Port, New York.

This safety zone covers the minimum area needed and imposes the minimum restrictions necessary to ensure the protection of all vessels and the fireworks handlers aboard the barges.

Public notifications will be made prior to the event via the Local Notice to Mariners, marine information broadcasts, facsimile, and Macy's waterways telephone hotline. In previous years this telephone hotline has been established in early June.

One minor change will be made to the description of the northern boundary of the safety zone on the East River. The regulation text currently indicates the eastern reference point for this boundary as “46 Road, Brooklyn,” and is changed to properly identify this reference point as “46 Road, Queens.”

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).

This safety zone temporarily closes a major portion of the East River and Upper New York Bay to vessel traffic. There is a regular flow of traffic through this area; however, the impact of this regulation is expected to be minimal for the following reasons: the limited duration of the event; the extensive, advance advisories that will be made to allow the maritime community to schedule transits before and after the event; the event takes place at a late hour on a national holiday; the event has been held for twenty-three years in succession and is therefore anticipated annually; small businesses may experience an increase in revenue due to the event; advance notifications will be made to the local maritime community by the Local Notice to Mariners, marine information broadcasts, facsimile, and the event sponsor establishes and advertises a telephone hotline which waterways users may call prior to the event for details of the safety zone. This telephone number will be published via the Local Notice to Mariners and facsimile. The number is normally activated in early June each year.

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 proposed rule would affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit or anchor in a portion of the East River or Upper New York Bay during the times these zones are activated.

This safety zone would not have a significant economic impact on a substantial number of small entities for the same reasons that the impact is expected to be minimal, listed under Regulatory Evaluation.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking. No such assistance was requested.

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

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

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

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

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

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

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

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

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

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

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

We have analyzed this rule under Commandant Instruction M16475.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. This rule fits paragraph 34(g) as it increases the size of an existing safety zone. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES .

Background

Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA) (16 U.S.C. 3111-3126) requires that the Secretary of the Interior and the Secretary of Agriculture (Secretaries) implement a joint program to grant a preference for subsistence uses of fish and wildlife resources on public lands in Alaska, unless the State of Alaska enacts and implements laws of general applicability that are consistent with ANILCA and that provide for the subsistence definition, preference, and participation specified in Sections 803, 804, and 805 of ANILCA. In December 1989, the Alaska Supreme Court ruled that the rural preference in the State subsistence statute violated the Alaska Constitution and, therefore, negated State compliance with ANILCA.

The Department of the Interior and the Department of Agriculture (Departments) assumed, on July 1, 1990, responsibility for implementation of Title VIII of ANILCA on public lands. The Departments administer Title VIII through regulations at Title 50, Part 100 and Title 36, Part 242 of the Code of Federal Regulations (CFR). Consistent with Subparts A, B, and C of these regulations, as revised January 8, 1999 (64 FR 1276), the Departments established a Federal Subsistence Board to administer the Federal Subsistence Management Program. The Board's composition includes a Chair appointed by the Secretary of the Interior with concurrence of the Secretary of Agriculture; the Alaska Regional Director, U.S. Fish and Wildlife Service; the Alaska Regional Director, National Park Service; the Alaska State Director, Bureau of Land Management; the Alaska Regional Director, Bureau of Indian Affairs; and the Alaska Regional Forester, USDA Forest Service. Through the Board, these agencies participate in the development of regulations for Subparts A, B, and C, which establish the program structure and determine which Alaska residents are eligible to take specific species for subsistence uses, and the annual Subpart D regulations, which establish seasons, harvest limits, and methods and means for subsistence take of species in specific areas. Subpart D regulations for the 2005 fishing seasons, harvest limits, and methods and means were published on March 21, 2005 (70 FR 13377).

Because this action relates to public lands managed by an agency or agencies in both the Departments of Agriculture and the Interior, identical closures and adjustments would apply to 36 CFR part 242 and 50 CFR part 100.

The Alaska Department of Fish and Game (ADF&G), under the direction of the Alaska Board of Fisheries (BOF), manages sport, commercial, personal use, and State subsistence harvest on all lands and waters throughout Alaska. However, on Federal lands and waters, the Federal Subsistence Board implements a subsistence priority for rural residents as provided by Title VIII of ANILCA. In providing this priority, the Board may, when necessary, preempt State harvest regulations for fish or wildlife on Federal lands and waters.

These adjustments are necessary because of the need to maintain the viability of salmon stocks in the Copper River based on in-season run assessments. These actions are authorized and in accordance with 50 CFR 100.19(d-e) and 36 CFR 242.19(d-e).

In December 2001, the Board adopted regulatory proposals establishing a new Federal subsistence fishery in the Chitina Subdistrict of the Copper River. This fishery is open to Federally qualified users having customary and traditional use of salmon in this Subdistrict. The State conducts a personal use fishery in this Subdistrict that is open to all Alaska residents.

Management of the fishery is based on the numbers of salmon returning to the Copper River. A larger than predicted salmon run will allow additional fishing time. A smaller than predicted run will require restrictions to achieve upriver passage and spawning escapement goals. A run that approximates the pre-season forecast will allow fishing to proceed similar to the pre-season schedule with some adjustments made to fishing time based on in-season data. Adjustments to the preseason schedule are expected as a normal function of an abundance-based management strategy. State and Federal managers, reviewing and discussing all available in-season information, will make these adjustments.

While Federal and State regulations currently differ for this Subdistrict, the Board indicated that Federal in-season management actions regarding fishing periods were expected to mirror State actions. The State established a preseason schedule of allowable fishing periods based on daily projected sonar estimates. This preseason schedule is intended to distribute the harvest throughout the salmon run and provide salmon for upriver subsistence fisheries and the spawning escapement. The salmon season is closed until the first open period scheduled for June 4, 2005, at 12:01 pm. Shown below are the fishing schedule openings for the Chitina Subdistrict of the Copper River:

State personal use and Federal subsistence fisheries in this Subdistrict close simultaneously by regulation on September 30, 2005. No deviation from this date is anticipated.

In December 2000, the Board adopted a regulatory proposal opening the Glennallen Subdistrict of the Copper River to Federally qualified users May 15. This allowed Federally qualified users to harvest salmon prior to the State subsistence fishing season that opens June 1. This fishery is open to Federally qualified users having customary and traditional use of salmon in this Subdistrict. The State conducts a personal use fishery in this Subdistrict that is open to all Alaska residents. Salmon migrating through the Glennallen Subdistrict during this period are likely to spawn in upper river tributaries based on prior studies conducted by the Alaska Department of Fish and Game. In 2003, Federally-qualified users harvested approximately 750 salmon in the Glennallen Subdistrict during May. None of this harvest appears to have occurred upstream of the Gakona River.

The State has briefly delayed the opening of the commercial fishery near the mouth of the Copper River predicated on the pre-season forecast. Production from the early portion of the natural run may be weak because of low inriver escapements prior to mid June in brood years 1999 and 2000. If Miles Lake sonar estimates are substantially below the forecasted levels, both the State and the Board will reduce the open periods in the Chitina Subdistrict as described in the Copper River Salmon Management Plan (5 AAC 24.360). Management of the fishery is based on the numbers of salmon returning to the Copper River. A larger than predicted salmon run will allow additional fishing time. A smaller than predicted run will require restrictions to achieve upriver passage and spawning escapement goals.

In May of 2004, Federally qualified users that harvest salmon upstream of the Gakona River strongly expressed concerns that their harvest is declining and that one of the causes of this decline is harvest of salmon downstream. Harvest data from 1996 through 2003 suggest that this may be a valid concern. No data regarding early run escapement is available until the Miles Lake sonar is operational and salmon passing the sonar site have arrived within the Glennallen Subdistrict (approximately 3 weeks' travel time). Therefore, this action utilizes a conservative approach and restricts the fishery until data from the Miles Lake sonar are available.

The Glennallen Subdistrict of the Copper River will be closed to the harvest of salmon until June 1, 2005.

Federally qualified users downstream of the Gakona River are not expected to be significantly impacted by this action because they have ample opportunity to harvest additional salmon stocks that enter the Subdistrict later to spawn in tributaries downstream of the Gakona River.

State and Federal subsistence fisheries in this Subdistrict close simultaneously by regulation on September 30, 2005. No deviation from this date is anticipated.

The Board finds that additional public notice and comment requirements under the Administrative Procedure Act (APA) for these adjustments are impracticable, unnecessary, and contrary to the public interest. Lack of appropriate and immediate conservation measures could seriously affect the continued viability of fish populations, adversely impact future subsistence opportunities for rural Alaskans, and would generally fail to serve the overall public interest.

Therefore, the Board finds good cause pursuant to 5 U.S.C. 553(b)(3)(B) to waive additional public notice and comment procedures prior to implementation of these actions and pursuant to 5 U.S.C. 553(d)(3) to make this rule effective as indicated in the DATES section.

A Final Environmental Impact Statement (FEIS) was published on February 28, 1992, and a Record of Decision on Subsistence Management for Federal Public Lands in Alaska (ROD) was signed April 6, 1992. The final rule for Subsistence Management Regulations for Public Lands in Alaska, Subparts A, B, and C (57 FR 22940, published May 29, 1992), implemented the Federal Subsistence Management Program and included a framework for an annual cycle for subsistence hunting and fishing regulations. A final rule that redefined the jurisdiction of the Federal Subsistence Management Program to include waters subject to the subsistence priority was published on January 8, 1999 (64 FR 1276.)

The intent of all Federal subsistence regulations is to accord subsistence uses of fish and wildlife on public lands a priority over the taking of fish and wildlife on such lands for other purposes, unless restriction is necessary to conserve healthy fish and wildlife populations. A Section 810 analysis was completed as part of the FEIS process. The final Section 810 analysis determination appeared in the April 6, 1992, ROD, which concluded that the Federal Subsistence Management Program, under Alternative IV with an annual process for setting hunting and fishing regulations, may have some local impacts on subsistence uses, but the program is not likely to significantly restrict subsistence uses.

The adjustment and emergency closures do not contain information collection requirements subject to Office of Management and Budget (OMB) approval under the Paperwork Reduction Act of 1995.

The adjustments have been exempted from OMB review under Executive Order 12866.

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq. ) requires preparation of flexibility analyses for rules that will have a significant effect on a substantial number of small entities, which include small businesses, organizations, or governmental jurisdictions. The exact number of businesses and the amount of trade that will result from this Federal land-related activity is unknown. The aggregate effect is an insignificant economic effect (both positive and negative) on a small number of small entities supporting subsistence activities, such as boat, fishing gear, and gasoline dealers. The number of small entities affected is unknown; however, the effects will be seasonally and geographically-limited in nature and will likely not be significant. The Departments certify that the adjustments will not have a significant economic effect on a substantial number of small entities within the meaning of the Regulatory Flexibility Act. Under the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801 et seq. ), this rule is not a major rule. It does not have an effect on the economy of $100 million or more, will not cause a major increase in costs or prices for consumers, and does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

Title VIII of ANILCA requires the Secretaries to administer a subsistence preference on public lands. The scope of this program is limited by definition to certain public lands. Likewise, the adjustments have no potential takings of private property implications as defined by Executive Order 12630.

The Service has determined and certifies pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq. , that the adjustments will not impose a cost of $100 million or more in any given year on local or State governments or private entities. The implementation is by Federal agencies, and no cost is involved to any State or local entities or Tribal governments.

The Service has determined that the adjustments meet the applicable standards provided in Sections 3(a) and 3(b)(2) of Executive Order 12988, regarding civil justice reform.

In accordance with Executive Order 13132, the adjustments do not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. Title VIII of ANILCA precludes the State from exercising subsistence management authority over fish and wildlife resources on Federal lands. Cooperative salmon run assessment efforts with ADF&G will continue.

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and 512 DM 2, we have evaluated possible effects on Federally recognized Indian tribes and have determined that there are no effects. The Bureau of Indian Affairs is a participating agency in this rulemaking.

On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, or use. This Executive Order requires agencies to prepare Statements of Energy Effects when undertaking certain actions. As these actions are not expected to significantly affect energy supply, distribution, or use, they are not significant energy actions and no Statement of Energy Effects is required.

Bill Knauer drafted this document under the guidance of Thomas H. Boyd, of the Office of Subsistence Management, Alaska Regional Office, U.S. Fish and Wildlife Service, Anchorage, Alaska. Taylor Brelsford, Alaska State Office, Bureau of Land Management; Rod Simmons, Alaska Regional Office, U.S. Fish and Wildlife Service; Nancy Swanton, Alaska Regional Office, National Park Service; Dr. Glenn Chen, Alaska Regional Office, Bureau of Indian Affairs; and Steve Kessler, USDA-Forest Service, provided additional guidance.

The modified BFEs are not listed for each community in this interim rule. However, the address of the Chief Executive Officer of the community where the modified BFE determinations are available for inspection is provided.

Any request for reconsideration must be based upon knowledge of changed conditions, or upon new scientific or technical data.

The modifications are made pursuant to Section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq. , and with 44 CFR part 65.

For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.

The modified BFEs are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).

These modified elevations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, state or regional entities.

The changes in BFEs are in accordance with 44 CFR 65.4.

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

Regulatory Flexibility Act. The Mitigation Division Director of the Emergency Preparedness and Response Directorate certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because modified BFEs are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are required to maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.

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

Executive Order 12612, Federalism. This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

Executive Order 12778, Civil Justice Reform. This rule meets the applicable standards of Section 2(b)(2) of Executive Order 12778.

FEMA makes the final determinations listed below of modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Mitigation Division Director of the Emergency Preparedness and Response Directorate has resolved any appeals resulting from this notification.

The modified BFEs are not listed for each community in this notice. However, this rule includes the address of the Chief Executive Officer of the community where the modified base flood elevation determinations are available for inspection.

The modifications are made pursuant to Section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq. , and with 44 CFR Part 65.

For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.

The modified BFEs are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).

These modified elevations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, state or regional entities.

These modified elevations are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings.

The changes in BFEs are in accordance with 44 CFR 65.4.

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

Regulatory Flexibility Act . The Mitigation Division Director of the Emergency Preparedness and Response Directorate certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because modified BFEs are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are required to maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.

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

Executive Order 12612, Federalism. This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

Executive Order 12778, Civil Justice Reform. This rule meets the applicable standards of Section 2(b)(2) of Executive Order 12778.

FEMA makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Mitigation Division Director of the Emergency Preparedness and Response Directorate, has resolved any appeals resulting from this notification.

This final rule is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67.

The Agency has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.

Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community.

The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.

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

Regulatory Flexibility Act. The Mitigation Division Director of the Emergency Preparedness and Response Directorate certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because final or modified BFEs are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and are required to establish and maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.

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

Executive Order 12612, Federalism. This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

Executive Order 12778, Civil Justice Reform. This rule meets the applicable standards of Section 2(b)(2) of Executive Order 12778.

This final rule amends the DFARS to standardize the use of geographic terms, for consistency with the definitions of the following terms found in section 2.101 of the Federal Acquisition Regulation: “United States”; “contiguous United States”; “customs territory of the United States”; and “outlying areas”.

DoD published a proposed rule at 69 FR 65121 on November 10, 2004. DoD received no comments on the proposed rule. DoD has adopted the proposed rule as a final rule, with the following exceptions:

○ The proposed changes to DFARS 204.670-1 and 253.204-70 are not included in the final rule. These changes will be addressed in a separate DFARS case relating to the DD Form 350, Individual Contracting Action Report.

○ The proposed change to DFARS 236.602-1(a)(i)(6)(A)( 2 ) is not included in the final rule. This text was removed from the DFARS in the final rule published at 69 FR 75000 on December 15, 2004.

○ The proposed revision to the clause at DFARS 252.225-7039, Restriction on Acquisition of Totally Enclosed Lifeboat Survival Systems, is not included in the final rule. This clause was proposed for deletion in the proposed rule published at 70 FR 14628 on March 23, 2005.

○ The final rule includes technical amendments at DFARS 247.571 to update cross-references.

○ The final rule includes changes to the clause at DFARS 252.212-7001, Contract Terms and Conditions Required to Implement Statutes or Executive Orders Applicable to Defense Acquisitions of Commercial Items, to update referenced clause dates.

○ The final rule reflects the revisions to DFARS 252.225-7003 and 252.225-7004, and the addition of DFARS 252.225-7006, included in the final rule published at 70 FR 20838 on April 22, 2005.

This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

DoD certifies that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. , because the rule standardizes DFARS terminology, but makes no substantive change to policy.

The Paperwork Reduction Act does not apply because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

A. Background

On December 5, 2003, NASA published in the Federal Register (68 FR 67995—67998) a proposed revision to the NFS prescribing policy, procedures, and clauses to address how NASA will acquire services to support management activities and administrative functions when performing those services requires the service provider to have access to “confidential” information submitted by other contractors. One of the comments that NASA received in response to this publication relates to a fundamental concept and demands attention at the outset. As published, the proposed rule used the word “confidential” to describe the types of information that required special attention when turned over to a service provider. NASA intended this word to describe a general class of information, largely of a business or management nature, the value of which arose mostly from the fact that it was not readily known to the public. NASA never intended this word to refer to one of the standard classifications of information for national security purposes, as in “confidential-secret-top secret.” Nevertheless, concerns have arisen that using the word might cause confusion with national security information. To avoid possible confusion, we have replaced the word “confidential” with the word “sensitive.” This revision should clarify that the proposed rule deals with business and management information, the value of which lies primarily in the fact that is not generally known to the public. The proposed rule does not implement or refer to the classification of information for national security purposes.

With regard to more general background information, NASA's essential procurement operations generate large amounts of “sensitive information,” both from offerors and contractors. Traditionally, NASA civil servants received, analyzed, and used this information to ensure that the Agency spent tax dollars in a responsible and consistent manner. The Trade Secrets Act and other statutes have for years imposed criminal liabilities on government employees who disclosed this type of information to unauthorized outside parties. Offerors and contractors have willingly provided sensitive information about their operations, costs, business practices, and other matters, knowing that NASA would not provide another contractor (“service provider”) access to this information without first ensuring that the parties had complied with FAR 9.505-4. As a condition to allowing a service provider access to another contractor's proprietary information, FAR 9.505-4 would require that the parties execute a satisfactory protection/use agreement. Central to this process were notice to the owner of the information before any access occurred and the opportunity to develop acceptable terms and conditions governing the service provider's use of the information. From a practical standpoint, this approach could work only after the Government had selected a service provider to perform clearly defined tasks using identified information from a known source that could consent to terms and conditions governing the access.

With many more contractor personnel supporting government operations, NASA must find ways to accommodate the increasing number of situations requiring non-government personnel to safeguard contractor sensitive information. Multiple, inter-related third-party protection agreements between service providers and other contractors that submit information they claim to be “sensitive” will simply not work on a large scale. To establish a more efficient, realistic, modern, across-the-board solution, the NFS revisions, published for public comment in the Federal Register on December 5, 2003 (68 FR 67995—67998), proposed a self-executing system of procurement policy, procedures, and clauses to allow NASA activities to rely routinely on private sector service providers to support day-to-day operations throughout the Agency.

The published NFS revisions proposed two new clauses to implement this self-executing system of policies and procedures. The first clause at 1852.237-72, Access to Sensitive Information, would go into all solicitations and contracts for services to allow access to sensitive information, whenever it is needed to support NASA's management activities and administrative functions. As published, this “Access” clause delineated the service provider's responsibilities to limit to the purposes specified in the contract its use of any sensitive information, to safeguard the information from unauthorized outside disclosure, and to train employees and obtain their written commitments to use the information in an authorized manner, only. Because of concerns under the Paperwork Reduction Act, NASA has revised the proposed “Access” clause to require that the service provider obtain only a simple affirmation from each employee that he/she has received training and will comply with the lessons learned regarding the use and protection of sensitive information under the contract.

The second clause at 1852.237-73, Release of Sensitive Information, goes into all solicitations and contracts, and notifies offerors and contractors that NASA may, subject to the enumerated protections mandated by the “Access” clause at 1852.237-72, release their sensitive information to service providers that support NASA activities and functions. This “Release” clause assures offerors and contractors, by reciting the express protections incorporated into the service provider's contract through the “Access” clause, that their information will remain sensitive. Essentially, the “Release” clause announces NASA's broad intent to make necessary sensitive information available to service providers, but only in accordance with strict limitations enumerated in the companion “Access” clause. These enumerated limitations mandate strict, specific, and express safeguards and procedures to protect that information.

Comments on the proposed rule were received from an industry association and NASA field installations. The comments received were considered in formulation of this final rule. This final rule adopts the proposed rule with changes. The changes are made to clarify contractor roles, to emphasize the protection of sensitive information, and to provide the owners of sensitive information assurance that their data will continue to receive protection. The changes include revising the term “receiving contractor” to “service provider;” providing a sample legend to identify sensitive information; and identifying the serious consequences for unauthorized use or disclosure.

The following summarizes the comments received from NASA's publication of the proposed rule and provides responses.

1. Comment: Was it necessary for the NASA Assistant Administrator for Procurement to waive in its entirety FAR 9.505-4, Obtaining Access to Proprietary Information? Could a less drastic solution help NASA without impacting the owners of sensitive information by simply revising the NFS to relieve contracting officers of overseeing a multitude of third party protection agreements and leave the terms of protection and their enforcement to the service providers and owners, themselves? Under this approach, the contracting officer would only identify each NASA service provider to the owners of needed sensitive information and then leave these parties free to arrange for acceptable terms of protection.

Response: In a real world, competitive environment, it was necessary for NASA to waive FAR 9.505-4 in its entirety. Implicitly, FAR 9.505-4 assumes an agency has already awarded a contract to a service provider that needs access to specific information owned by another contractor. In this scenario, the protections that the owner will demand before granting access to specific sensitive information are the only significant unknowns. The assumptions behind FAR 9.505-4 are simply not valid in the early phases of a competitive procurement. Even without burdening the contracting officer to oversee third-party protection agreements, FAR 9.505-4 would require each potential service provider in a competitive procurement to know in advance of submitting a proposal, the exact information needed to perform as specified in the solicitation, what contractors own that information, and what protections those owners deemed acceptable as a condition to granting access to the information. This level of pre-proposal information would simply not be available in a competitive procurement. As a more realistic and useful alternative, the revised NFS relies not on individual third-party protection agreements, but rather prescribes standardized, reciprocal contract clauses to protect sensitive information. A “Release” clause goes into the information owner's contract to document consent to release and to delineate the extensive, specific protections that the service provider will implement. A reciprocal “Access” clause goes into the service provider's contract to place strict controls over its activities. Under the new “Release” clause, the owner of sensitive information expressly consents to access, as needed by NASA service providers. To gain this necessary access, however, the service provider must have expressly agreed, through the new “Access” clause, to comply with and implement an extensive number of binding and enumerated protections.

2. Comment: NASA has received a large quantity of “sensitive information” in connection with solicitations and contracts that did not contain the new “Release” clause. The offerors and contractors that submitted this information are not bound by the clause and have not expressly agreed that NASA service providers may have access to their sensitive information. In view of the broad waiver of FAR 9.505-4, how will NASA contracting officers avoid violating the Trade Secrets Act by giving service providers access to sensitive information that was not subject to the “Release” clause?

Response: This point may be valid in those situations when a service provider requests access to information that NASA has received pursuant to contracts that did not contain the “Release” clause. To address contracts that did not contain the clause at 1852.237-73, the NFS will provide internal guidance for NASA contracting officers and requiring activities instructing them to examine all requests from service providers for access to sensitive information. This examination should first determine whether NASA possesses responsive information. If so, the requiring activity should next assess whether access to that information is crucial to the service provider's ability to perform. If the requiring activity possesses the requested information and it is crucial to performing the needed services, then the contracting officer must try to identify and contact the owner of the information to determine whether it claims that the information is “sensitive.” At this point, the contracting officer should attempt to negotiate a modification to the owner's contract to incorporate the “Release” clause and proceed from there. Because the service provider's contract will contain extensive protections for the sensitivity of the information, NASA expects that most owners will agree to incorporate the “Release” clause into their existing contracts. If the owner refuses to modify its contract to include the “Release” clause, but persists in claiming the information is sensitive, the requiring activity should prepare a preliminary assessment for the contracting officer addressing whether the claim has a valid factual basis. This analysis should address whether NASA might have persuasive grounds to challenge the claim. If there appears to be persuasive basis for challenging the owner's claim, the contracting officer should seek advice from Center counsel before taking any further action. If, on the other hand, the claim appears to be valid, the requiring activity should re-examine the relationship of the information to the services needed. The service provider may be able to perform acceptably without the requested information. Additionally, the contracting officer may be able to facilitate reaching an agreement on acceptable terms of protection. The contracting officer and the requiring activity should examine all alternatives to obtain the needed support. But, without clear evidence that the owner of the sensitive information has consented to release, NASA will not expose its employees to the risk of violating 18 USC. 1905.

3. Comment: One comment blankly asserted that the proposed rule might violate 41 USC. 418a with respect to “technical data.” Although not clearly articulated, NASA assumes the comment is referring to the following language in 41 USC. 418a:

Response: This prohibition deals with how Federal agencies define their procurement requirements for information. An agency may not require a company to forfeit private intellectual property rights in technical data as a condition to receiving a government contract. NASA notes simply that the proposed rule has nothing to do with defining procurement requirements for information. Rather, the proposed rule focuses on how NASA manages information that offerors and contractors have already delivered to the Government as part of submitting proposals or performing contracts. The assertion that the proposed rule might violate 41 USC. 418a appears to flow from two faulty premises. First, the proposed rule is not concerned primarily with “technical data” of a “scientific or technical nature,” but instead focuses on “information incidental to contract administration, such as financial, administrative, cost or pricing or management information.” The FAR expressly excludes this latter type of information from the definition of “technical data.” Second, the proposed rule is not concerned with how NASA defines procurement requirements for information owned by its contractors. The proposed rule simply enables service providers to obtain access to information they need to support Agency management activities and administrative functions. In most cases, the owners will have already submitted this information as a matter incidental to contract administration.

4. Comment: NASA intends to rely more and more heavily on the private sector to support essential management activities and administrative functions. Most of these activities and functions involve access to sensitive information submitted by offerors in the process of competing for awards, or by contractors as part of performance. Asking the owners of sensitive information to provide access to other contractors, some of which may be business rivals, is an inherently difficult issue and could seriously discourage competition. To promote trust, the NFS should, as a minimum, prescribe standard terms and conditions for the organizational conflicts of interest (OCI) avoidance plan and require the contracting officer to approve each offeror's proposed approach to this important document.

Response: Logically, there can be no standard approach to avoiding OCI's, which are by their nature unique to the individual contractor. The service provider must thoroughly analyze its own situation, including the services to be rendered, the information needed to perform those services, other procurements for which the service provider may intend to compete, and specific mechanisms the service provider is willing to implement to mitigate, neutralize, or eliminate foreseeable possible conflicts of interest. In addition to recognizing that each service provider's OCI's are essentially unique, any avoidance plan must flow from performance-based contracting principles to be acceptable today. As such, the buyer defines only the final outcomes to be achieved, not the methods of getting there. Consequently, the NFS will leave the details of any OCI avoidance plan to the service provider that must live by it. The contracting officer in concert with Center counsel is responsible for receiving and reviewing the plan for reasonable completeness and communicating any substantive weaknesses and omissions discovered to the service provider for necessary revisions. The contracting officer will incorporate the accepted plan into the contract as a compliance document. If the service provider fails to mitigate all potential conflicts and/or unauthorized disclosures and uses occur, the service provider must take adequate corrective actions. If the corrective actions are not adequate, the contracting officer may terminate the contract.

5. Comment: The Assistant Administrator for Procurement's broad waiver of FAR 9.505-4 could cause NASA employees to violate the Trade Secrets Act, 18 U.S.C. 1905, because not all of the information owners would have expressly consented to release through the new “Release” clause. Moreover, with respect to technical data, the proposed rule might also violate 41 U.S.C. 418a, which requires the FAR to prescribe regulations governing the allocation of rights in data developed through contracts using tax dollars. The Assistant Administrator's authority to waive rules relating to Organizational Conflicts of Interest does not extend the requirements of other statutes.

Response: The Trade Secrets Act prohibits government employees from releasing trade secret information to any extent not authorized by law. The Office of Federal Procurement Policy Act authorized NASA to issue the NFS. NASA is adding the new “Release” clause to the NFS in accordance with the OFPP Act. Therefore, releasing information pursuant to the “Release” clause would be “authorized by law” and not violate the Trade Secrets Act. Presumably, therefore, this comment relates to sensitive information that NASA received under contracts or other agreements that did not contain the new “Release” clause. The NFS will contain detailed procedural guidance instructing requiring activities and contracting officers how to deal with this type of information. This procedural guidance will first instruct the contracting officer/requiring activity to contact the owner of the information to evaluate its claim to be entitled to protection and to seek agreement to incorporate the new “Release” clause. Alternatively, the contracting officer should try to facilitate an individualized agreement on acceptable terms of protection. If the information appears to be entitled to protection, but the owner is unwilling to accept the “Release” clause or to negotiate specific, tailored terms of protection, the contracting officer/requiring activity should examine on a more detailed level how much access the service provider actually needs. On closer examination, it may be possible that different, less comprehensive services could satisfy the requiring activity.

In accordance with 41 U.S.C. 418a, both the FAR and the NFS have promulgated regulations dealing with how agencies acquire and allocate rights to data developed under government contracts. The Assistant Administrator for Procurement's waiver of FAR 9.505-4 does not, however, relate to how NASA acquires and allocates rights in data. The waiver relates, instead, to information submitted in support of proposals or in the course of performing contracts. Most of this information is not “technical data,” which the Government procures for its own value. Rather, the revised NFS generally uses the term “sensitive information” to refer to financial and administrative information that is incidental to contract administration. As such, the Assistant Administrator for Procurement's waiver of FAR 9.505-4 does not affect 41 U.S.C. 418a or the requirements of any other statute or binding instruction.

6. Comment: The proposed rule does not define the term “sensitive information” clearly and, as a result, fails to exclude from the operation of the clauses cost or pricing data, other financial information, administrative or management information, and the like. The term “sensitive information” should not be broader in scope than “data” as defined in FAR Part 27, which specifically excludes information incidental to contract administration.

Response: NASA understands that FAR Part 27 specifically excludes information incidental to contract administration from the definition of “data.” In contrast, the new NFS coverage focuses primarily on information incidental to contract administration, not technical data. As the published proposed rule noted, the primary purpose of the new coverage is to allow a service provider access to information necessary to support NASA activities and functions, as civil servants did in the past.

7. Comment: The proposed rule implies that NASA need only protect data “developed at private expense.” The definition of “trade secret” does not depend on the concept of development costs. A trade secret covers a variety of forms of information that derive economic value, actual or potential, from not being generally known to the public. NASA needs to continue to protect any trade secret or it will compromise the property rights of companies, with which it currently does business. FAR 27.402 instructs agencies to avoid doing so.

Response: NASA agrees that the term “trade secret” extends to many types of information that derive economic value from not being generally known to the public. But, with regard to protecting contractors” legitimate property rights, FAR 27.402 establishes the following policy: “* * * the Government recognizes that its contractors may have a legitimate proprietary interest ( e.g. , a property right or other valid economic interest) in data resulting from private investment. ” (Emphasis added.) It seems fairly clear from this language, that FAR 27.402 envisions protecting only sensitive or proprietary information that a contractor has developed at private expense. Without meeting this simple test, the FAR implicitly does not recognize as “legitimate” a contractor's claim for trade secret protection.

8. Comment: The revised NFS would require the holders of “ordinary procurement” contracts to identify “sensitive information,” but provides no instructions on how to do so. Moreover, NASA will continue to obtain sensitive information under contracting vehicles, such as “Space Act Agreements,” that are not covered by the new “Release” clause. What will tell these contractors how to identify “sensitive information?”

Response: The revised NFS deals with how service providers obtain access to the information they need to support NASA operations, not with particular property rights resulting from the expenditure of tax dollars. As such, the NFS does not need to prescribe a particular legend to instruct contractors on how to identify their own sensitive information. For the contractor's convenience, however, the revised “Release” clause provides a sample notice identifying sensitive information. The new “Access” clause prescribes what service providers must do to protect the information they receive to support NASA operations. The NFS governs NASA contracts, not “other transactions” authorized by the Space Act. Generally, however, NASA does not acquire property and services for the expenditure of tax dollars under “other transactions.”

9. Comment: Under the new “Access” clause, a service provider can allow access to sensitive information only to employees that need it to perform the specified support. Yet, the clause does not prescribe any process for determining which employees have a “need-to-know” sensitive information or what sanctions NASA may impose for unauthorized use.

Response: Performance-based contracting principles call for NASA to define only the final performance outcomes, not how the contractor is to achieve those objectives. The revised NFS allows the contractor to define how it will achieve the specified outcomes for NASA. Assigning work and functions among its employees is certainly within the contractor's discretion. The revised section 1837.203-70 does instruct the contracting officer to monitor the effectiveness of the contractor's system for encouraging employees to avoid unauthorized uses and disclosures. The revised clause at 1852.237-72 also describes the administrative remedies available to the contracting officer to encourage service providers to comply with their new obligations to protect sensitive information and avoid unauthorized uses or disclosures.

10. Comment: The new “Access” clause requires service providers to obtain express, binding written use agreements from their employees to protect sensitive information and use it only for the purposes of performing the specified services. Doing so is likely to be a tremendous administrative burden. Additionally, the service provider has no obligation to keep different companies' information segregated.

Response: As published, the new “Access” clause did require contractors to obtain express, binding written agreements from their employees to protect sensitive information and use it only for performing the services specified. After considering comments on this language, NASA decided to revise the clause to require contractors to obtain written acknowledgements from their employees that they have received training in how to protect sensitive information and will adhere to the lessons learned in providing services under the contract. This simple acknowledgement does not require contractors to collect information. Certainly, a much more onerous burden would flow from a greatly expanded system of interrelated third party non-disclosure agreements among all the entities that provide sensitive information in the course of submitting competitive proposals or performing contracts for NASA. With regard to segregating different companies' information, that responsibility is implicit in the obligation to use information only to perform the specified services.

11. Comment: A potentially tremendous burden on the contracting officer, far exceeding any imposed by FAR 9.505-4, will be determining what information in NASA's possession is “sensitive” and who owns it. Moreover, NASA has information from companies that may no longer do business with the Government, or may no longer be in operation, at all; others have gone on to other businesses; and some may never have a contract containing the new “Release” clause. These situations, effectively, deprive NASA of the owner's consent to release sensitive information and expose government employees to possible violations of 18 U.S.C. 1905. If breaches and unauthorized disclosures occur, the NFS does not provide guidelines to the contracting officer on what actions are appropriate and/or effective.

Response: While some of these observations may be valid, none requires regulatory coverage beyond internal guidance for NASA operations. With regard to contracts that do not contain the “Release” clause, we are developing NFS internal guidance that begins by recognizing that in the course of proposing, the service provider will delve into the solicitation requirements to determine what information is needed to perform. The service provider should then request access to specifically identified information from the contracting officer/requiring activity. At that point, the requiring activity should try to determine whether NASA possesses the identified information, who owns it, and whether that owner claims to be entitled to protection. The contracting officer should then contact the owner to discuss incorporating the new “Release” clause. If the owner asserts the identified information is sensitive and entitled to protection, but resists incorporating the “Release” clause, the contracting officer should attempt to negotiate satisfactory, alternate terms of protection. The contracting officer should try to include the owner and the service provider in this process. At the same time, the contracting officer, with the assistance of Center counsel, should evaluate whether there is a valid factual basis for claiming that the information is sensitive and entitled to protection. If the owner continues to resist access, the contracting officer should, next, explore whether some reduced level of support, not requiring access to sensitive information, might be satisfactory. With regard to a service provider's unauthorized uses or disclosures, the clause at 1852.237-72 describes some of the administrative responses available to the contracting officer.

12. Comment: 1852.237-73(c) should specify whether and how the parties may challenge the sensitivity of information, including the process to follow and the owner's rights to redress.

Response: The new NFS purposely defines “sensitive information” to exclude “technical data,” as defined in the FAR. Sensitive information is incidental to contract administration and, generally, does not have independent value to its owners. Consequently, a highly structured, formalistic challenge process seems neither necessary nor desirable. Any challenge would have to show the following basic elements:

(a) Private investment developed the information or the Government generated it and it qualifies for an exception to the Freedom of Information Act.

(b) The information must not currently be in the public domain.

(c) The information may embody trade secretes or commercial or financial information.

(d) The information may be sensitive or privileged.

The NFS will provide only general guidance in this area, recognizing these are very difficult judgments. Until the contracting officer decides for sound reasons to challenge an owner's claim that information is sensitive and entitled to protection, NASA and its service provider will comply with the owner's assertions.

This final rule does not meet the definition of “significant” under Executive 12866. NASA certifies that this final rule will not have a significant economic impact on a substantial number of small business entities within the meaning of the Regulatory Flexibility Act (5 U.S.C. 601, et. seq. ), because the new, streamlined approach of having each service provider implement specific safeguards and procedures should offer the same or better protection for sensitive information belonging to small business entities than does the current system of third party agreements, envisioned by FAR 9.505-4. Moreover, this final rule should ease the burden on small business entities by not requiring them to enter multiple, interrelated third party agreements with numerous service contractors that support NASA's management activities and administrative functions.

The proposed NFS revisions simply amplify and clarify NASA's implementation of FAR 9.504, coverage that has existed for nearly 20 years. NASA has published these NFS revisions for public comment and received no challenges, objections, or concerns regarding the information collection requirements associated with providing services that will entail access to sensitive information. Because access to sensitive information is necessary to perform the specified services, solicitations will require all bidders and offerors to submit preliminary analyses of potential conflicts of interests. Further, each awarded contract that will entail access to sensitive information will also require the service provider to submit a comprehensive organizational conflicts of interest avoidance plan, as a deliverable report during performance.

Over the years, NASA has requested and OMB has approved various information collections necessary to evaluate bids and proposals submitted for the award of contracts, as well as for contract reports required to manage approved programs and projects. The OMB approval numbers currently in effect for these various categories of information collections are as follows:

1. OMB No. 2700-0085, bids and proposals with an estimated value more than $500,000.

2. OMB No. 2700-0089, reports required for contracts with an estimated value more than $500,000.

3. OMB No. 2700-0087, bids and proposals with an estimated value less than $500,000.

4. OMB No. 2700-0088, reports required on contracts valued at less than $500,000.

5. OMB No. 2700-0086, purchase orders for goods and services with an estimated value of $100,000 or less.

Our requests for OMB approval for these information collections have noted that NASA prepares solicitations for bids and proposals and defines requirements for contract deliverables in accordance with the OFPP Policy Act, as amended by Pub. L. 96-83, the National Aeronautics and Space Act of 1958, as amended, the Federal Acquisition Regulation (FAR), the NASA FAR Supplement, and approved mission requirements. In seeking OMB approval, NASA has described and administratively tracked these information collections in generic, functional terms, and categorized the requests based on the estimated dollar values of the purchase orders or contracts supporting the procurements in question.

As described above, these information collections cover broad functional procurement needs, at all dollar values relevant to NASA's current contracting practices. Consequently, OMB's current approvals adequately cover the proposed rule's requirements that, during the evaluation phase of each procurement, all bids and offers must contain preliminary analyses of potential conflicts of interest and that after award each new service provider must submit a comprehensive conflicts of interest avoidance plan for inclusion in the contract as a compliance document. In our view, the Paperwork Reduction Act does not require any further action in support of this final rule.

In several regulations, NHTSA specifies that vehicle manufacturers, child seat manufacturers, or automobile dealers must provide the telephone number for our Vehicle Safety Hotline so that consumers concerned about safety recalls or potential defects could contact this agency. That telephone number has changed. This document amends the relevant sections of the CFR to correct the telephone number and to add our web address so that consumers can access the safety recall and defect information online. We are also changing the text in the Part 582 information form to reflect our current New Car Assessment Program efforts.

This technical amendment will not impose or relax any substantive requirements or burdens on manufacturers. Except for Part 577, we are providing a lead-time of one year in order to afford affected parties time to update the relevant contact information where necessary. Therefore, NHTSA finds for good cause that any notice and opportunity for comment on these correcting amendments are not necessary.

In consideration of the foregoing, this document amends the CFR by updating the contact information for the Vehicle Safety Hotline.

Regulations governing the summer flounder fishery are found at 50 CFR part 648. The regulations require annual specification of a commercial quota that is apportioned among the coastal states from North Carolina through Maine. The process to set the annual commercial quota and the percent allocated to each state are described in § 648.100.

The ASMFC adopted Addendum XV to the FMP in November 2004. The Addendum is being implemented under the adaptive management and framework procedures that are part of the FMP. Addendum XV establishes a program, for 2005 and 2006, that allocates the increase in commercial summer flounder quota (from the 2004 amount) differently than the existing allocation scheme, in order to reduce the amount of fish that must be discarded as bycatch in the commercial fishery in states with relatively low summer flounder quotas. The transfer of quota from donor states will allow recipient states to marginally increase trip limits, thereby decreasing the amount of summer flounder discarded at sea.

The final rule implementing Amendment 5 to the FMP that was published on December 17, 1993 (58 FR 65936), provided a mechanism for summer flounder quota to be transferred from one state to another. Two or more states, under mutual agreement and with the approval of the Administrator, Northeast Region, NMFS (Regional Administrator), can transfer or combine summer flounder commercial quota under § 648.100(d). The Regional Administrator is required to consider the criteria set forth in § 648.100(d)(3) in the evaluation of requests for quota transfers or combinations. The Regional Administrator has reviewed those criteria and approved the quota transfer requests submitted by the State of Rhode Island.

Consistent with Addendum XV, Rhode Island, a designated “donor state,” has voluntarily employed the quota transfer provisions of the FMP to transfer a total of 50,186 lb (22,764 kg) to be allocated as follows: Maine 937 lb (425 kg); Connecticut 13,095 lb (5,940 kg); New York 9,763 lb (4,428 kg); Delaware 2,887 lb (1,310); Maryland 13,230 lb (6,001 kg); and Massachusetts 10,274 lb (4,660 kg) (see Table 1).

In addition, this action corrects a previous quota transfer involving North Carolina and Maryland published on June 7, 2005 (70 FR 33042). This previous quota transfer notice effected an Addendum XV transfer from North Carolina to Maine, Massachusetts, Connecticut, New York, and Maryland. In agreeing to this previous transfer, Maryland accepted only half of the quota offered by North Carolina, but the transfer published on June 7, 2005, inadvertently transferred to Maryland the full amount offered by North Carolina (23,153 lb (10,502 kg)). Therefore, this action deducts half of this amount (11,577 lb (5,251 kg)) from Maryland and restores the same amount to North Carolina. The corrected quotas involved in that transfer are listed in Table 1.

This action is taken under 50 CFR part 648 and is exempt from review under Executive Order 12866.

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

In the Aleutian Islands subarea, the 2005 A season allowance of non-CDQ pollock is 9,800 metric tons (mt), the ICA of pollock is 1,200 mt, and the CDQ pollock is 760 mt, as established by the 2005 and 2006 final harvest specifications for groundfish in the BSAI (70 FR 8979, February 24, 2005), for the period 1200 hrs, A.l.t., January 1, 2005, through 1200 hrs, A.l.t., June 10, 2005.

As of May 21, 2005, the Administrator, Alaska Region, NMFS, (Regional Administrator) has determined that the following A season apportionments of pollock in the Aleutian Islands subarea will not be harvested: 9,600 of non-CDQ pollock, 460 mt of ICA pollock and 760 mt of CDQ pollock. Therefore, in accordance with § 679.20(a)(5)(iii)(B)( 4 ), NMFS reallocates 9,600 mt of non-CDQ pollock and 760 mt of CDQ pollock from the Aleutian Islands subarea to the Bering Sea subarea B season allocations. In accordance with § 679.20(a)(5)(iii)(B)( 2 )( ii ), NMFS reallocates 460 mt from the Aleutian Islands subarea pollock ICA to the B season non-CDQ directed pollock fishery.

Also, the Regional Administrator has determined that the B season ICA is in excess of the necessary amount and is reallocating the excess B season apportionment of the ICA to the directed pollock fishery. In accordance with § 679.20(a)(5)(iii)(B)( 2 )( ii ), NMFS reallocates 140 mt from the B season apportionment of the Aleutian Islands subarea pollock ICA to the B season non-CDQ directed pollock fishery.

Furthermore, the Regional Administrator has determined through consultation with the Aleut Corporation and the CDQ groups that 4,900 mt of the B season non-CDQ pollock and 1,140 mt of the B season CDQ pollock allocations in the Aleutian Islands subarea will not be harvested. Therefore, in accordance with § 679.20(a)(5)(iii)(B)( 4 ), NMFS apportions 4,900 mt of non-CDQ pollock and 1,140 mt of CDQ pollock from the Aleutian Islands subarea to the Bering Sea subarea B season allocations. Table 3 has been revised to reflect this reallocation.

The harvest specifications for pollock in the Aleutian Islands subarea included in the harvest specifications for groundfish in the BSAI (70 FR 8979, February 24, 2005) are revised as follows: 200 mt to the A season allowance of non-CDQ pollock, 740 mt to the A season allowance of ICA pollock, 0 mt to the A season allowance of CDQ pollock, 1,000 mt to the B season allowance of non-CDQ pollock, 660 to the B season allowance of ICA pollock, and 0 mt to the B season allowance of CDQ pollock.

Pursuant to § 679.20(a)(5), Tables 3 and 10 are revised for the 2005 B season consistent with this reallocation. Footnote 1 continues to state the allocations under regulations at § 679.20(a)(5).