Section 218(a) of the Nuclear Waste Policy Act of 1982, as amended (NWPA), requires that “[t]he Secretary [of the Department of Energy (DOE)] shall establish a demonstration program, in cooperation with the private sector, for the dry storage of spent nuclear fuel at civilian nuclear power reactor sites, with the objective of establishing one or more technologies that the [Nuclear Regulatory] Commission may, by rule, approve for use at the sites of civilian nuclear power reactors without, to the maximum extent practicable, the need for additional site-specific approvals by the Commission.” Section 133 of the NWPA states, in part, that “[t]he Commission shall, by rule, establish procedures for the licensing of any technology approved by the Commission under Section 218(a) for use at the site of any civilian nuclear power reactor.”

To implement this mandate, the NRC approved dry storage of spent nuclear fuel in NRC-approved casks under a general license by publishing a final rule in 10 CFR Part 72 entitled, “General License for Storage of Spent Fuel at Power Reactor Sites” (55 FR 29181; July 18, 1990). This rule also established a new Subpart L within 10 CFR Part 72, entitled “Approval of Spent Fuel Storage Casks” containing procedures and criteria for obtaining NRC approval of spent fuel storage cask designs. The NRC subsequently issued a final rule on April 7, 1993 (58 FR 17948), that approved the VSC-24 cask design and added it to the list of NRC-approved cask designs in § 72.214 as CoC No. 1007.

On November 2, 2004, and as supplemented on April 27, 2005, the certificate holder, BNG Fuel Solutions Corporation, submitted an application to the NRC to amend CoC No. 1007 for the VSC-24 System to change the certificate holder's name from Pacific Sierra Nuclear Associates (PSNA) to BNG Fuel Solutions Corporation (BFS). The requested change did not require any changes to the VSC-24 Final Safety Analysis Report (FSAR) nor its TS. PSNA, the current certificate holder of CoC No. 1007 for the VSC-24 System, is jointly owned by BFS and Sierra Nuclear Corporation (SNC). BNG, Inc., the parent company of BFS and SNC, intends to have SNC transfer all of its assets and liabilities to BFS, and then dissolve SNC. Given that BFS will have sole ownership of PSNA, the applicant has requested that the certificate holder be changed from PSNA to BFS. No other changes to the VSC-24 System were requested in this application. Due to the administrative nature of the change requested, this amendment does not require any changes to the VSC-24 FSAR nor its TS. In addition, the NRC staff has determined that there continues to be reasonable assurance that public health and safety and the environment will be adequately protected.

This direct final rule revises the VSC-24 cask design listing in § 72.214 by adding Amendment No. 5 to CoC No. 1007. As discussed above, the amendment does not require any changes to the FSAR nor its TS.

The amended VSC-24 System, when used in accordance with the conditions specified in the CoC, the TS, and NRC regulations, will meet the requirements of Part 72; thus, adequate protection of public health and safety will continue to be ensured.

Certificate No. 1007 is revised by adding the effective date of Amendment Number 5.

This rule is limited to the change contained in Amendment 5 to CoC No. 1007 and does not include other aspects of the VSC-24 cask design. The NRC is using the “direct final rule procedure” to issue this amendment because it represents a limited and routine change to an existing CoC that is expected to be noncontroversial. Adequate protection of public health and safety continues to be ensured. The amendment to the rule will become effective on September 13, 2005. However, if the NRC receives significant adverse comments by August 1, 2005, then the NRC will publish a document that withdraws this action and will address the comments received in response to the proposed amendments published elsewhere in this issue of the Federal Register , in a subsequent final rule.

A significant adverse comment is a comment where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. A comment is adverse and significant if:

(1) The comment opposes the rule and provides a reason sufficient to require a substantive response in a notice-and-comment process. For example, in a substantive response:

(a) The comment causes the NRC staff to reevaluate (or reconsider) its position or conduct additional analysis;

(b) The comment raises an issue serious enough to warrant a substantive response to clarify or complete the record; or

(c) The comment raises a relevant issue that was not previously addressed or considered by the NRC staff.

(2) The comment proposes a change or an addition to the rule, and it is apparent that the rule would be ineffective or unacceptable without incorporation of the change or addition.

(3) The comment causes the NRC staff to make a change (other than editorial) to the CoC or TS.

The National Technology Transfer Act of 1995 (Pub. L. 104-113) requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this direct final rule, the NRC is revising the VSC-24 listing in § 72.214 (List of NRC-approved spent fuel storage cask designs). This action does not constitute the establishment of a standard that establishes generally applicable requirements.

Under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs” approved by the Commission on June 30, 1997, and published in the Federal Register on September 3, 1997 (62 FR 46517), this rule is classified as Compatibility Category “NRC.” Compatibility is not required for Category “NRC” regulations. The NRC program elements in this category are those that relate directly to areas of regulation reserved to the NRC by the Atomic Energy Act of 1954, as amended (AEA), or the provisions of Title 10 of the Code of Federal Regulations. Although an Agreement State may not adopt program elements reserved to NRC, it may wish to inform its licensees of certain requirements via a mechanism that is consistent with the particular State's administrative procedure laws but does not confer regulatory authority on the State.

The Presidential Memorandum dated June 1, 1998, entitled “Plain Language in Government Writing,” directed that the Government's writing be in plain language. The NRC requests comments on this direct final rule specifically with respect to the clarity and effectiveness of the language used. Comments should be sent to the address listed under the heading ADDRESSES above.

The NRC has determined that this direct final rule is the type of action described in categorical exclusion 10 CFR 51.22(c)(2). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this direct final rule.

This direct final rule does not contain a new or amended information collection requirement subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). Existing requirements were approved by the Office of Management and Budget (OMB), Approval Number 3150-0132.

The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting document displays a currently valid OMB control number.

A regulatory analysis has not been prepared for this direct final rule because this rule is considered a minor, nonsubstantive amendment that has no economic impact on NRC licensees or the public.

In accordance with the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the NRC certifies that this rule will not, if issued, have a significant economic impact on a substantial number of small entities. This direct final rule consists of an administrative change to the company name and does not affect any small entities.

The NRC has determined that the backfit rule (10 CFR 50.109 or 10 CFR 72.62) does not apply to this direct final rule because this amendment does not involve any provisions that would impose backfits as defined. Therefore, a backfit analysis is not required.

In accordance with the Small Business Regulatory Enforcement Fairness Act of 1996, the NRC has determined that this action is not a major rule and has verified this determination with the Office of Information and Regulatory Affairs, Office of Management and Budget.

The Bipartisan Campaign Reform Act of 2002 (“BCRA”), Pub. L. 107-155, 116 Stat. 81 (2002), limits the amounts and types of funds that can be raised in connection with Federal and non-Federal elections by Federal officeholders and candidates, their agents, and entities directly or indirectly established, financed, maintained, or controlled by, or acting on behalf of Federal officeholders or candidates (“covered persons”). See 2 U.S.C. 441i(e). Covered persons may not “solicit, receive, direct, transfer or spend” non-Federal funds in connection with an election for Federal, State, or local office except under limited circumstances. See 2 U.S.C. 441i(e); 11 CFR part 300, subpart D.

Section 441i(e)(3) of FECA states that “notwithstanding” the prohibition on raising non-Federal funds, including Levin funds, in connection with a Federal or non-Federal election in section 441i(b)(2)(C) and (e)(1), “a candidate or an individual holding Federal office may attend, speak, or be a featured guest at a fundraising event for a State, district, or local committee of a political party.” Id . During its 2002 rulemaking to implement this provision, the Commission considered competing interpretations of this provision. The Commission decided to promulgate rules at 11 CFR 300.64(b) construing the statutory provision to permit Federal officeholders and candidates to attend, speak, and appear as featured guests at fundraising events for a State, district, and local committee of a political party (“State party”) “without restriction or regulation.” See Final Rules on Prohibited and Excessive Contributions: Non-Federal Funds or Soft Money, 67 FR 49064, 49108 (July 29, 2002).

In Shays v. FEC , the district court held that the Commission's Explanation and Justification for the fundraising provision in 11 CFR 300.64(b) did not satisfy the reasoned analysis requirement of the Administrative Procedure Act, 5 U.S.C. 553 (2000) (“APA”). See 337 F. Supp. 2d 28, 93 (D.D.C. 2004), appeal pending No. 04-5352 (D.C. Cir.). The court held, however, that the regulation did not necessarily run contrary to Congress's intent in creating the fundraising exemption, was based on a permissible construction of the statute, and did not “unduly compromise[] the Act's purposes.” Id . at 90-92 (finding the regulation survived Chevron review). 1 The Commission did not appeal this portion of the district court decision.

To comply with the district court's order, the Commission issued a Notice of Proposed Rulemaking to provide proposed revisions to the Explanation and Justification for the current rule in section 300.64. See Notice of Proposed Rulemaking on Candidate Solicitation at State, District and Local Party Fundraising Events, 70 FR 9013, 9015 (Feb. 24, 2005) (“NPRM”). As an alternative to providing a new Explanation and Justification for the current rule, the NPRM also proposed revisions to current section 300.64 that would prohibit Federal officeholders and candidates from soliciting or directing non-Federal funds when attending or speaking at State party fundraising events. See id . at 9015-16. The NPRM sought public comment on both options.

The public comment period closed on March 28, 2005. The Commission received eleven comments from sixteen commenters in response to the NPRM, including a letter from the Internal Revenue Service stating “the proposed explanation and the proposed rules do not pose a conflict with the Internal Revenue Code or the regulations thereunder.” The Commission held a public hearing on May 17, 2005 at which six witnesses testified. The comments and a transcript of the public hearing are available at http://www.fec.gov/law/law_rulemakings.shtml under “Candidate Solicitation at State, District and Local Party Fundraising Events.” For the purposes of this document, the terms “comment” and “commenter” apply to both written comments and oral testimony at the public hearing.

The commenters were divided between those supporting the current exemption in section 300.64 and those supporting the alternative proposed rule. Several commenters urged the Commission to retain the current exemption as a proper interpretation of 2 U.S.C. 441i(e)(3). One commenter argued that section 441i(e)(3) created a total exemption because Congress knew that State and local parties requested Federal officeholders and candidates to speak at these fundraisers to increase attendance, but that these appearances do not create any quid pro quo contributions for the speaker. Some commenters stressed the importance of the relationship between Federal and State candidates and stated that the current exemption properly recognizes the need for Federal officeholders and candidates to participate in State party fundraising events.

Some commenters viewed the alternative proposed rule requiring a candidate to avoid “words of solicitation” as problematic because it would necessitate Commission review of speech at such events. These commenters asserted that the alternative rule would cause Federal officeholders and candidates to refuse to participate in State party fundraising events for fear that political rivals will attempt to seize on something in a speech as an impermissible solicitation. One commenter noted that Federal officeholders and candidates, who are attending State party fundraisers, are expected to thank attendees for their past and continued support for the State party, and without a complete exemption, such a courtesy could be treated as a solicitation.

Another commenter noted that party committees and campaign staff have worked hard over the past two years doing training, following Commission meetings and advisory opinions, and absorbing enforcement cases as they have developed. Another commenter noted that State parties have already had to adjust their fundraising practices during the 2004 election cycle to comply with BCRA. Two commenters argued that further regulatory changes at this point would only increase the costs of compliance and fundraising for State parties that already operate on a small budget.

In contrast, some commenters supported the alternative proposed rule that would bar Federal candidates and officeholders from soliciting non-Federal funds when appearing and speaking at State party fundraising events. Some commenters argued that the Shays opinion, while upholding section 300.64 under Chevron , criticized the Commission's interpretation as “likely contraven[ing] what Congress intended * * * as well as * * * the more natural reading of the statute * * *.” ( Quoting Shays , 337 F. Supp. 2d at 91.) Thus, these commenters argued that the structure of section 441i(e) as a whole, as well as the specific wording of section 441i(e)(3), when compared to the exceptions for candidates for State and local office and certain tax-exempt organizations (sections 441i(e)(2) and (e)(4), respectively), demonstrate that section 441i(e)(3) should not be construed as a total exemption from the soft money solicitation prohibitions. Accordingly, these commenters argued that the legislative history of BCRA better supports the interpretation in the alternative proposed rule. These commenters also argued that the Commission's proposed Explanation and Justification did not sufficiently address the district court's concern as to why the Commission believed that monitoring speech at State party fundraising events is more difficult or intrusive than in other contexts where solicitations of non-Federal funds are almost completely barred. Shays , 337 F. Supp. 2d at 93. Finally, these commenters noted that Federal officeholders and candidates should be able to distinguish speaking from “soliciting,” as they are required to do in other situations such as charitable activity governed by the Senate Ethics Rules or political activity regulated by the Federal Hatch Act, 5 U.S.C. 7323, and could properly tailor their speeches to comply with the alternative proposed rule.

The Commission has decided, after carefully weighing the relevant factors, to retain the current exemption in section 300.64 permitting Federal officeholders and candidates to attend, speak, or be featured guests at State party fundraising events without restriction or regulation. The reasons for this decision are set forth below in the revised Explanation and Justification for current section 300.64.

The introductory paragraph in 11 CFR 300.64 restates the general rule from the statutory provision in section 441i(e)(3): “[n]otwithstanding the provisions of 11 CFR 100.24, 300.61 and 300.62, a Federal candidate or individual holding Federal office may attend, speak, or be a featured guest at a fundraising event for a State, district, or local committee of a political party, including but not limited to a fundraising event at which Levin funds are raised, or at which non-Federal funds are raised.”

The Commission clarifies in section 300.64(a) that State parties are free within the rule to publicize featured appearances of Federal officeholders and candidates at these events, including references to these individuals in invitations. However, Federal officeholders and candidates are prohibited from serving on “host committees” for a party fundraising event at which non-Federal funds are raised or from signing a solicitation in connection with a party fundraising event at which non-Federal funds are raised, on the basis that these pre-event activities are outside the statutory exemption in section 441i(e)(3) permitting Federal candidates and officeholders to “attend, speak, or be a featured guest” at fundraising events for State, district, or local party committees.

In promulgating 11 CFR 300.64(b), the Commission construes 2 U.S.C. 441i(e)(3) to exempt Federal officeholders and candidates from the general solicitation ban, so that they may attend and speak “without restriction or regulation” at State party fundraising events. The Commission bases this interpretation on Congress's inclusion of the “notwithstanding paragraph (1)” phrase in section 441i(e)(3), which suggests Congress intended the provision to be a complete exemption. See Cisneros v. Alpine Ridge Group , 508 U.S. 10, 18 (1993) (“[T]he Courts of Appeals generally have “interpreted similar “notwithstanding” language * * * to supercede all other laws, stating that a clearer statement is difficult to imagine.’ ”) (internal citation omitted).

Although some commenters argue that section 441i(e)(3) of FECA does not permit solicitation because Congress did not include the word “solicit” in that exception, the Shays court stated: “[w]hile it is true that Congress created carve-outs for its general ban in other provisions of BCRA utilizing the term ‘solicit’ or ‘solicitation,’ see 2 U.S.C. 441i(e)(2), (4) , these provisions do not conflict with the FEC's reading of Section (e)(3).” See Shays , 337 F. Supp. 2d at 90; see also Shays at 89 (“However, as Defendant observes, ‘if Congress had wanted to adopt a provision allowing Federal officeholders and candidates to attend, speak, and be featured guests at state party fundraisers but denying them permission to speak about soliciting funds, Congress could have easily done so.’ ”).

Furthermore, construing section 441i(e)(3) to be a complete exemption from the solicitation restrictions in section 441i(e)(1) gives the exception content and meaning beyond what section 441i(e)(1)(B) already permits. Section 441i(e)(1)(A) establishes a general rule against soliciting non-Federal funds in connection with a Federal election. Section 441i(e)(1)(B) permits the solicitation of non-Federal funds for State and local elections as long as those funds comply with the amount limitations and source prohibitions of the Act. In contrast to assertions by commenters that without section 441i(e)(3) candidates would not be able to attend, appear, or speak at State party events where soft money is raised, the Commission has determined that under section 441i(e)(1)(B) alone, Federal officeholders and candidates would be permitted to speak and solicit funds at a State party fundraiser for the non-Federal account of the State party in amounts permitted by FECA and not from prohibited sources. See Advisory Opinions 2003-03, 2003-05 and 2003-36. Section 441i(e)(3) carves out a further exemption within the context of State party fundraising events for Federal officeholders and candidates to attend and speak at these functions “notwithstanding” the solicitation restrictions otherwise imposed by 441i(e)(1). Interpreting section 441i(e)(3) merely to allow candidates and officeholders to attend or speak at a State party fundraiser, but not to solicit funds without restriction, would render it largely superfluous because Federal candidates and officeholders may already solicit up to $10,000 per year in non-Federal funds from non-prohibited sources for State parties under section 441i(e)(1)(B).

The Commission agrees with one commenter who stated that the “more natural” interpretation of 2 U.S.C. 441i(e)(3) is that found in current section 300.64. The Commission also believes that such an interpretation is more consistent with legislative intent. Section 300.64(b) effectuates the careful balance Congress struck between the appearance of corruption engendered by soliciting sizable amounts of soft money, and preserving the legitimate and appropriate role Federal officeholders and candidates play in raising funds for their political parties. Just as Congress expressly permitted these individuals to raise and spend non-Federal funds when they themselves run for non-Federal office ( see 2 U.S.C. 441i(e)(2)), and to solicit limited amounts of non-Federal funds for certain 501(c) organizations ( see 2 U.S.C. 441i(e)(4)), Congress also enacted 2 U.S.C. 441i(e)(3) to make clear that Federal officeholders and candidates could continue to play a role at State party fundraising events at which non-Federal funds are raised. The limited nature of this statutory exemption embodied in 11 CFR 300.64 is evident in that it does not permit Federal officeholders and candidates to solicit non-Federal funds for State parties in written solicitations, pre-event publicity or through other fundraising appeals. See 11 CFR 300.64(a).

The commenters also stressed the importance of the unique relationship between Federal officeholders and candidates and their State parties. They emphasized that these party fundraising events mainly serve to energize grass roots volunteers vital to the political process.

By definition, the primary activity in which persons attending or speaking at State party fundraising events engage is raising funds for the State parties. It would be contrary to BCRA's goals of increasing integrity and public faith in the campaign process to read the statute as permitting Federal officeholders and candidates to speak at fundraising events, but to treat only some of what they say as being in furtherance of the goals of the entire event. As one commenter noted regarding Federal candidate appearances at State party fundraising events, “the very purpose of the candidate's invited involvement—or at least a principal one—is to aid in the successful raising of money. So there is little logic, and undeniably the invitation to confusion, in allowing candidates to speak and appear in aid of fundraising purposes, while insisting that the candidate's speech be free of apparent fundraising appeals.” Determining what specific words would be merely “speaking” at such an event without crossing the line into “soliciting” or “directing” non-Federal funds raises practical enforcement concerns. See 11 CFR 300.2(m) (definition of “to solicit”) and 300.2(n) (definition of “to direct”). A regulation that permitted speaking at a party event, the central purpose of which is fundraising, but prohibited soliciting, would require candidates to perform the difficult task of teasing out words of general support for the political party and its causes from words of solicitation for non-Federal funds for that political party. As the U.S. Supreme Court stated in Buckley v. Valeo :

A complete exemption in section 300.64(b) that allows Federal officeholders and candidates to attend and speak at State party fundraising events without restriction or regulation avoids these significant concerns. A number of commenters noted the potential impact of these concerns if the Commission did not retain current 11 CFR 300.64(b). For example, one commenter “strongly urge[d] the Commission not to adopt a ‘speak but don't solicit’ rule. As noted in the NPRM itself, such a rule would ‘require candidates to tease out’ appropriate words from inappropriate ones.” This commenter further stated that he “also fear[s] the outcome if a ‘middle ground’ is adopted, wherein federal officeholders and candidates could attend fundraisers but not use words that might be deemed solicitation for money. This would, first and foremost, open up a whole new battleground in politics, as every statement made by a Congressman at his party's Jefferson/Jackson day (or Lincoln Day) dinner will be scrutinized to see if it complies with requirements.” Another commenter noted that current 11 CFR 300.64 “applies only to the speeches that a Federal officeholder or candidate may give at a State or local party event. It reflects the practical realities of these events. As a featured speaker, an officeholder is expected to thank the attendees for their past and continued support of the party. Without the current exemption, this common courtesy might well be treated as a violation of the ban on the solicitation of non-Federal funds. The Commission would then be placed in the position of determining whether a normal and expected expression of gratitude or request for support crosses some indeterminate line and violates the law.” Another commenter urged the Commission to retain the current regulation so that Federal officeholders and candidates would not be exposed to “legal jeopardy” because the proposed alternative rule would leave “too much opportunity for someone to second guess and misinterpret a speech made at this type of event.” The same commenter stated that the Commission is faced with the question of whether or not to adopt a rule “that allows candidates and officeholders to be placed at the mercy of those who would misinterpret or mischaracterize the speech they give.”

At the hearing, the Commission explored a number of scenarios involving a Federal officeholder or candidate speaking at a party fundraising event. The discussion illustrates the difficulty for not only the Commission, but also Federal officeholders and candidates, in parsing speech under the alternative proposed rule. For example, when asked whether statements like “I'm glad you're here to support the party,” and “thank you for your continuing support of the party,” constitute solicitation, the commenters who favor the alternative proposed rule could not give definitive answers. They acknowledged that the word “support” may be construed as a solicitation when spoken at a fundraising event but not when spoken at other types of events. Likewise, commenters who favored the current rule expressed uncertainty as to whether these phrases would be construed as solicitations when spoken at a fundraising event.

The commenters disagreed as to whether a Federal officeholder or candidate delivering a speech under a banner hung by the State party reading “Support the 2005 State Democratic ticket tonight” would be construed as impermissible solicitation unless explicit disclaimers were included in the speech. Some commenters noted that even a “pure policy” speech, otherwise permissible at a non-fundraising event, could constitute an impermissible solicitation in the context of a State party fundraising event. Finally, many commenters could not provide a clear answer as to whether a policy speech that included a statement of support for the “important work” of the State party chairman on a particular issue (such as military base closures in the state) could be construed as an impermissible solicitation. In each of these examples the commenters stated that an analysis of the particular facts and circumstances surrounding the speech would be required in order to determine whether a speech would be solicitation. However, the commenters analyzed the facts and circumstances differently, and when presented with the same facts and circumstances, they could not come to agreement on whether the speech was a solicitation.

The inability of the commenters to provide clear answers to these scenarios demonstrates how parsing speech at a State party fundraising event is more difficult than in other contexts and why it would be especially intrusive for the Commission to enforce the alternative proposed rule. As illustrated during the discussion at the hearing and observed by one of the commenters, whether a particular message is a solicitation may depend on the person hearing the message—what one person interprets as polite words of acknowledgement may be construed as a solicitation by another person. The likelihood of this misinterpretation occurring increases at a State party fundraising event because of the Federal officeholders' and candidates' unique relationship to, and special identification with, their State parties.

The Commission believes that the alternative rule would, as a practical matter, make the statutory exception at 2 U.S.C. 441i(e)(3) for appearances at State and local party fundraising events a hollow one. Given that the Federal officeholder's appearance would be, by definition, at a fundraising event, it would be exceedingly easy for opposing partisans to file a facially plausible complaint that the candidate or Federal officeholder's words or actions at the event constituted a “solicitation.” In such circumstances, the Commission believes that Federal officeholders and candidates would be reluctant to appear at State party fundraising events, as doing so would risk complaints, intrusive investigations, and possible violations based on general words of support for the party.

Some commenters argued that Federal officeholders and candidates should be able to distinguish between permissible speech and an impermissible solicitation under the alternative rule because Federal employees are already required to make such judgments when involved in political activity pursuant to the Hatch Act. See 5 U.S.C. 7323; 5 CFR 734.208(b). Under the Hatch Act and its implementing regulations, a Federal employee “may give a speech or keynote address at a political fundraiser * * * as long as the employee does not solicit political contributions.” See 5 CFR 734.208, Example 2. However, there are significant differences between the requirements of the Hatch Act and the Commission's regulations which make it much easier for Federal employees to know which words are words of solicitation under the Hatch Act scheme, than under the alternative proposed rule.

Although the Hatch Act restriction appears similar to the proposed alternative rule banning Federal officeholders and candidates from soliciting money when speaking at State party fundraising events, the Hatch Act is a narrower standard that provides clear guidance to speakers to distinguish permissible speech. First, the implementing regulations for the Hatch Act contain a narrow definition of “solicit” meaning “to request expressly” that another person contribute something. See 5 CFR 734.101. Thus, for example, the Hatch Act regulations explain that an employee may serve as an officer or chairperson of a political fundraising organization so long as they do not personally solicit contributions, see 5 CFR 734.208, Example 7, while Federal officeholders and candidates may not serve in such capacity under 2 U.S.C. 441i(e) and 11 CFR 300.64. Moreover, in order to violate the Hatch Act, a Federal employee must “knowingly” solicit contributions—a higher standard than that employed in FECA and Commission regulations. Thus, a Federal employee would not be penalized for unintentionally crossing the line into “solicitation” under the Hatch Act, whereas the alternative proposed rule would reach situations where the Federal officeholder or candidate speech could be construed as an impermissible solicitation, regardless of the speaker's knowledge or intent.

A commenter cited the Senate Ethics Manual explaining Rule 35 of the Senate Code of Official Conduct, arguing that Federal officeholders and candidates know how to ask for money and avoid asking for money. The Senate rule targets solicitation of gifts from registered lobbyists and foreign agents and applies to situations not analogous to State party fundraising events. Rule 35 prohibits Senators and their staff from soliciting charitable donations from registered lobbyists and foreign agents but makes an exception, among others, for a fundraising event attended by fifty or more people. Thus, at a fundraising event attended by fifty or more people, including registered lobbyists and foreign agents, senators do not need to be concerned that their speech soliciting charitable donations is an impermissible solicitation of a gift under Rule 35.

Many commenters stressed the need for Federal officeholders and candidates to have clear notice regarding what speech would be allowable at these State party fundraising events, as the unwary could unintentionally run afoul of a more restrictive rule. A complete exemption in section 300.64(b) that allows Federal officeholders and candidates, in these limited circumstances, to attend and speak at State party committee fundraising events without restriction or regulation, including solicitation of non-Federal or Levin funds, avoids these concerns and the practical enforcement problems they entail. The exemption provides a straightforward, clear rule that Federal officeholders and candidates may easily comprehend and that the Commission may practically administer. It also fully complies with the plain meaning of BCRA.

Furthermore, as noted above, current 11 CFR 300.64 is carefully circumscribed and only extends to what Federal candidates and officeholders say at the State party fundraising events themselves. The regulation tracks the statutory language by explicitly allowing Federal candidates and officeholders to attend fundraising events and in no way applies to what Federal candidates and officeholders do outside of State party fundraising events. Specifically, the regulation does not affect the prohibition on Federal candidates and officeholders from soliciting non-Federal funds for State parties in fundraising letters, telephone calls, or any other fundraising appeal made before or after the fundraising event. Unlike oral remarks that a Federal candidate or officeholder may deliver at a State party fundraising event, when a Federal candidate or officeholder signs a fundraising letter or makes any other written appeal for non-Federal funds, there is no question that a solicitation has taken place that is restricted by 2 U.S.C. 441i(e)(1). Moreover, it is equally clear that such a solicitation is not within the statutory safe harbor at 2 U.S.C. 441i(e)(3) that Congress established for Federal candidates and officeholders to attend and speak at State party fundraising events.

Finally, there does not appear to be evidence of corruption or abuse under the current rule that dictates a change in Commission regulations. Commenters both favoring and opposed to the regulation in its current form agreed that there is no evidence that the operation of this exemption in the past election cycle in any way undermined the success of BCRA cited by its Congressional sponsors. Congress specifically allowed Federal candidates and officeholders to attend and speak at State party fundraising events. The statute permits attendance where non-Federal funds are being raised, and policing what may be said in both private and public conversations with donors at such events does little to alleviate actual or apparent corruption. One commenter pointed out that most of these fundraising events require a contribution to the State party as the cost of admission, and do not present a significant danger of corruption from solicitation at the event itself by speakers. As one commenter noted, “it is difficult to identify any regulatory benefit to be derived by additional restrictions on what a candidate might say to an audience that already has chosen to attend and contribute [when] without any overt solicitation, the candidate's appearance at the event already makes clear the importance that she attaches to the party's overall campaign efforts.” The Commission agrees with the commenters that additional restrictions on what a candidate may say once at the fundraising event provides little, if any, anti-circumvention protection since, as one commenter noted in oral testimony, “the ask has already been made * * * The people are already there. They are motivated to be there” and the funds have already been received by the party committee before the Federal candidate and officeholder speaks at the fundraising event. A commenter observed, “most political events I am familiar with involve the raising of funds as a condition of admission as opposed to a solicitation at an event.” Another commenter stated that “in most instances the money for the event has already been raised. Therefore, the candidate or officeholder's appearance and speech [are] not a solicitation.”

Another commenter noted that most of these fundraising events are small-dollar events targeted at grass roots volunteers where donations are usually less than $100, and do not include corporations or single-interest groups. An additional commenter stated that “Congress knew that state and local party committees request officeholders speak at party events to increase attendance and the party's yield from the event. It was also aware that speeches at these events are unlikely of themselves to foster the quid pro quo contributions that the law seeks to curb.” Thus, many of these events already comply with amount limitations and source prohibitions for solicitation under section 441i(e)(1)(B). In contrast, other commenters asserted that there was a potential for abuse if Federal candidates and officeholders make phone calls from the event asking donors for non-Federal funds, or gather together a group of wealthy donors and label it a “State party fundraising event” in order to benefit from the exemption in section 300.64. However, in response to Commission questioning at the hearing, no commenter could point to any reports of such activity in the past election cycle. If the Commission detects evidence of abuse in the future, the Commission has the authority to revisit the regulation and take action as appropriate, including an approach targeted to the specific types of problems that are actually found to occur.

In the NPRM, the Commission sought public comment regarding certain advisory opinions issued by the Commission permitting attendance and participation by Federal officeholders and candidates at events where non-Federal funds would be raised for State and local candidates or organizations, subject to various restrictions and disclaimer requirements. See NPRM at 9015; Advisory Opinions 2003-03, 2003-05, and 2003-36. Some commenters stated that the analysis in those advisory opinions was correct and consistent with BCRA's exceptions permitting Federal officeholders and candidates to raise money for State and local elections within Federal limits and prohibitions under section 441i(e)(1)(B). One commenter noted that these advisory opinions were based on the Commission's regulation at 11 CFR 300.62, which was not challenged in the Shays litigation and need not be reexamined here. Another commenter urged the Commission to incorporate the holdings of these advisory opinions into its regulations so that Federal officeholders and candidates could continue to rely on them. One commenter also suggested that any additional restrictions beyond the disclaimers required in these advisory opinions would raise constitutional concerns. In contrast, other commenters asserted that these advisory opinions were incorrect and that the Commission should supersede them with a regulation that completely bars attendance at soft money fundraising events that are not hosted by a State party. The Commission does not believe it is necessary to initiate a rulemaking to address the issues in Advisory Opinions 2003-03, 2003-05, and 2003-36 at this time.

The Commission also sought comment on how it should interpret 2 U.S.C. 441i(b)(2), (e)(1), and (e)(3) in light of language from Shays stating that Levin funds are “funds ‘subject to [FECA's] limitations, prohibitions, and reporting requirements.’ ” See NPRM at 9016. Most comments regarding this inquiry opposed any interpretation of these provisions that would allow Federal officeholders and candidates to solicit Levin funds without restriction, with some commenters noting that the Commission has consistently referred to Levin funds as non-Federal funds, including in recent final rules published in 2005. However, one commenter stated that Federal officeholders and candidates should be allowed to raise Levin funds. This issue of interpretation was relevant only to the alternative approach proposed in the NPRM. Because the Commission has decided to retain its rule in section 300.64 with a revised Explanation and Justification, the Commission need not further address this question of statutory interpretation.

The FAA has determined that notice and opportunity for prior public comment hereon are impracticable because these procedures would significantly delay issuance of the 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 notice 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 Docket No. CE230.” The postcard will be date stamped and returned to the commenter.

On June 7, 2005, ARINC Inc. 1632 S. Murray Blvd., Colorado Springs, CO 80916, notified the Denver ACO of a Designated Alteration Station (DAS) project for a new Supplemental Type Certificate for the Raytheon Model H90 (T-44A) airplanes. The Raytheon Models of concern are approved under TC No. 3A20. The proposed modification incorporates a novel or unusual design features, including a dual EFIS system, digital air data computers, and other equipment associated with the Rockwell Collins Pro Line 21 Avionics System. These systems may be vulnerable to HIRF external to the airplane.

Under the provisions of 14 CFR part 21, § 21.101, ARINC, Inc. must show that the Raytheon Model H90 (T-44A) airplanes meet the following provisions, or the applicable regulations in effect on the date of application for the STC: For those areas modified or impacted by the installation, ARINC will use 14 CFR part 23 Amendments 23-1 through 23-55. This includes applying the concepts of 23.1301, 23.1302, 23.1309, 23.1311, 23.1321, 23.1322, 23.1331, 23.1335, 23.1351, 23.1357, 23.1359, 23.1361, 23.1365, 23.1367, 23.1381, 23.1431, 23.1529, 23.1541, 23.1543, 23.1581 at amendment 55, and the special conditions adopted by this rulemaking action. For systems that are not modified or impacted by the installation, the original certification basis listed on TC No. 3A20 are still applicable.

If the Administrator finds that the applicable airworthiness standards do not contain adequate or appropriate safety standards because of novel or unusual design features of an airplane, 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 after public notice and become part of the type certification basis in accordance with § 21.101.

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

ARINC, Inc. plans to incorporate certain novel and unusual design features into an airplane for which the airworthiness standards do not contain adequate or appropriate safety standards for protection from the effects of HIRF. These features include the addition of a digital Air Data computer, which may be susceptible to the HIRF environment, that were not envisaged by the existing regulations for this type of airplane.

Protection of Systems from High Intensity Radiated Fields (HIRF) : Recent advances in technology have given rise to the application in aircraft designs of advanced electrical and electronic systems that perform functions required for continued safe flight and landing. Due to the use of sensitive solid-state advanced components in analog and digital electronics circuits, these advanced systems are readily responsive to the transient effects of induced electrical current and voltage caused by the HIRF. The HIRF can degrade electronic systems performance by damaging components or upsetting system functions.

Furthermore, the HIRF environment has undergone a transformation that was not foreseen when the current requirements were developed. Higher energy levels are radiated from transmitters that are used for radar, radio, and television. Also, the number of transmitters has increased significantly. There is also uncertainty concerning the effectiveness of airframe shielding for HIRF. Furthermore, coupling to cockpit-installed equipment through the cockpit window apertures is undefined.

The combined effect of the technological advances in airplane design and the changing environment has resulted in an increased level of vulnerability of electrical and electronic systems required for the continued safe flight and landing of the airplane. Effective measures against the effects of exposure to HIRF must be provided by the design and installation of these systems. The accepted maximum energy levels in which civilian airplane system installations must be capable of operating safely are based on surveys and analysis of existing radio frequency emitters. These special conditions require that the airplane be evaluated under these energy levels for the protection of the electronic system and its associated wiring harness. These external threat levels, which are lower than previous required values, are believed to represent the worst case to which an airplane would be exposed in the operating environment.

These special conditions require qualification of systems that perform critical functions, as installed in aircraft, to the defined HIRF environment in paragraph 1 or, as an option to a fixed value using laboratory tests, in paragraph 2, as follows:

(1) The applicant may demonstrate that the operation and operational capability of the installed electrical and electronic systems that perform critical functions are not adversely affected when the aircraft is exposed to the HIRF environment defined below:

(2) The applicant may demonstrate by a system test and analysis that the electrical and electronic systems that perform critical functions can withstand a minimum threat of 100 volts per meter, electrical field strength, from 10 kHz to 18 GHz. When using this test to show compliance with the HIRF requirements, no credit is given for signal attenuation due to installation.

A preliminary hazard analysis must be performed by the applicant, for approval by the FAA, to identify either electrical or electronic systems that perform critical functions. The term “critical” means those functions, whose failure would contribute to, or cause, a failure condition that would prevent the continued safe flight and landing of the airplane. The systems identified by the hazard analysis that perform critical functions are candidates for the application of HIRF requirements. A system may perform both critical and non-critical functions. Primary electronic flight display systems, and their associated components, perform critical functions such as attitude, altitude, and airspeed indication. The HIRF requirements apply only to critical functions.

Compliance with HIRF requirements may be demonstrated by tests, analysis, models, similarity with existing systems, or any combination of these. Service experience alone is not acceptable since normal flight operations may not include an exposure to the HIRF environment. Reliance on a system with similar design features for redundancy as a means of protection against the effects of external HIRF is generally insufficient since all elements of a redundant system are likely to be exposed to the fields concurrently.

As discussed above, these special conditions are applicable to Raytheon Model H90 (T-44A) airplanes. Should ARINC, Inc. apply at a later date for a supplemental type certificate to modify any other model on the same type certificate 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 one model of airplane. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

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 has determined that notice and opportunity for prior public comment hereon are impracticable because these procedures would significantly delay issuance of the 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 notice 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 Docket No. 228 .” The postcard will be date stamped and returned to the commenter.

Diamond Aircraft Industries (DAI) made application through European Aviation Safety Agency (EASA) for U.S. Type Certification for the Diamond Aircraft Model DA-42 on August 2, 2004. The Diamond DA-42 aircraft is a new fully composite, four place, twin-engine airplane with retractable gear, cantilever low wing and T-tail. The airplane was certified by EASA and listed on Type Certificate No. A005 dated May 13, 2004. Certification work was delegated to the Austrian Civil Authority as the JAA/Primary Certification Authority. The airplane is powered by two Thielert Aircraft Engines GmbH (Thielert) TAE 125-01 aircraft diesel engines (ADE). They are listed on U.S. engine TC No. E00069EN and incorporate two MT-propeller, MTV-6-A-C-F/CF187-129, U.S. TC No. P19NE. The fuel to be used for the Thielert TAE 125-01 aircraft diesel engine in USA is Jet A only. The Type Certification sought is for Day VFR/IFR operations.

As part of the FAA validation process for issuance of a Type Certificate in the United States for foreign applicants, the FAA is issuing these special conditions to address Certification Review Items (CRI) for novel and unusual features of the Diamond DA-42. The proposed type design incorporates novel or unusual design features, including the Garmin G1000 EFIS system, and digital engine controls that are vulnerable to HIRF external to the airplane.

Based on the provisions of 14 CFR 21.17(c), 21.29 and the Austria-US BAA, and the FAA Order 8100.14, Interim Procedures for Working with the European Community on Airworthiness Certification and Continued Airworthiness and the Type Validation principles, the following airworthiness requirements are applicable to this project, and will remain active for three years from the date of application: The certification basis is based on the EASA/ACG certification basis as presented in CRI A-01, Issue 4, Joint Certification Basis and is harmonized at JAA JAR 23 Amendment 1, which is harmonized at 14 CFR part 23 Amendment 51. The FAA identified FAR/EASA Significant Standards Differences (SSDs), documented in our CRIs for the validation.

The Garmin G1000 was originally approved at part 23 Amendment 49 for § 23.1301, § 23.1309, § 23.1311, § 23.1322, and other applicable rules for electronic displays, but is approved at Amendment 51 for this installation. The digital engine control was certified under part 33 and Amendment 20 with the engine, but is approved at part 23 Amendment 51 with the rest of the DA-42 for § 23.1309 and other applicable regulations for this installation. The certification basis also includes any applicable exemptions, equivalent levels of safety, and the terms of these special conditions.

If the Administrator finds that the applicable airworthiness standards do not contain adequate or appropriate safety standards because of novel or unusual design features of an airplane, 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 after public notice and become part of the type certification basis in accordance with § 21.101 (b)(2).

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 already included on the same type certificate to incorporate the same novel or unusual design feature, the special conditions would also apply to the other model under the provisions of § 21.101.

Diamond Aircraft, Inc. plans to incorporate certain novel and unusual design features into the Diamond DA-42 airplane for which the airworthiness standards do not contain adequate or appropriate safety standards for protection from the effects of HIRF. These features include the G1000 EFIS and two digital engine controls, which are susceptible to the HIRF environment and were not envisaged by the existing regulations for this type of airplane. Though the digital engine control systems were initially certificated to 14 CFR part 33, the regulatory requirements in 14 CFR part 23 for evaluating the installation of complex systems, including electronic systems, are contained in § 23.1309.

When § 23.1309 was developed, the use of electronic control systems for engines was not envisioned. The § 23.1309 requirements were originally not applied to systems certificated as part of an approved engine (§ 23.1309(f)(1)). Also, § 23.1309(f)(1) implies evaluation of the engine system's effects is not required. However, the installation specifics of the electronic engine control systems on the DA-42 requires evaluation due to the possible effects on or by other airplane systems ( e.g. , radio interference with other airplane electronic systems, shared engine and airplane power sources) using § 23.1309. The integral nature of these systems makes it unfeasible to evaluate the airplane portion of the system without including the engine portion of the system. Also, electronic control systems often require inputs from airplane data and power sources and outputs to other airplane systems ( e.g. , automated cockpit powerplant controls such as mixture setting). Therefore, special conditions are proposed to provide HIRF protection for the EFIS and digital engine controls and to evaluate the installation for compliance with the requirements of § 23.1309(a) through (e) at Amendment 23-51 for the Diamond DA-42.

Recent advances in technology have given rise to the application in aircraft designs of advanced electrical and electronic systems that perform functions required for continued safe flight and landing. Due to the use of sensitive solid-state advanced components in analog and digital electronics circuits, these advanced systems are readily responsive to the transient effects of induced electrical current and voltage caused by the HIRF. The HIRF can degrade electronic systems performance by damaging components or upsetting system functions.

Furthermore, the HIRF environment has undergone a transformation that was not foreseen when the current requirements were developed. Higher energy levels are radiated from transmitters that are used for radar, radio, and television. Also, the number of transmitters has increased significantly. There is also uncertainty concerning the effectiveness of airframe shielding for HIRF. Furthermore, coupling to cockpit-installed equipment through the cockpit window apertures is undefined.

The combined effect of the technological advances in airplane design and the changing environment has resulted in an increased level of vulnerability of electrical and electronic systems required for the continued safe flight and landing of the airplane. Effective measures against the effects of exposure to HIRF must be provided by the design and installation of these systems. The accepted maximum energy levels in which civilian airplane system installations must be capable of operating safely are based on surveys and analysis of existing radio frequency emitters. These special conditions require that the airplane be evaluated under these energy levels for the protection of the electronic system and its associated wiring harness. These external threat levels, which are lower than previous required values, are believed to represent the worst case to which an airplane would be exposed in the operating environment.

These special conditions require qualification of systems that perform critical functions, as installed in aircraft, to the defined HIRF environment in paragraph 1 or, as an option to a fixed value using laboratory tests, in paragraph 2, as follows:

(2) The applicant may demonstrate that the operation and operational capability of the installed electrical and electronic systems that perform critical functions are not adversely affected when the aircraft is exposed to the HIRF environment defined below:

(2) The applicant may demonstrate by a system test and analysis that the electrical and electronic systems that perform critical functions can withstand a minimum threat of 100 volts per meter, electrical field strength, from 10 kHz to 18 GHz. When using this test to show compliance with the HIRF requirements, no credit is given for signal attenuation due to installation.

A preliminary hazard analysis must be performed by the applicant, for approval by the FAA, to identify either electrical or electronic systems that perform critical functions. The term “critical” means those functions, whose failure would contribute to, or cause, a failure condition that would prevent the continued safe flight and landing of the airplane. The systems identified by the hazard analysis that perform critical functions are candidates for the application of HIRF requirements. A system may perform both critical and non-critical functions. Primary electronic flight display systems, and their associated components, perform critical functions such as attitude, altitude, and airspeed indication. The HIRF requirements apply only to critical functions.

Compliance with HIRF requirements may be demonstrated by tests, analysis, models, similarity with existing systems, or any combination of these. Service experience alone is not acceptable since normal flight operations may not include an exposure to the HIRF environment. Reliance on a system with similar design features for redundancy as a means of protection against the effects of external HIRF is generally insufficient since all elements of a redundant system are likely to be exposed to the fields concurrently.

As discussed above, these special conditions are applicable to the Diamond DA-42 airplane. Should Diamond Aircraft, Inc. apply at a later date for a supplemental type certificate to modify any other model on the same type certificate 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 one model of airplane. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

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.

You may examine the AD docket in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level of the Nassif Building at the street address stated in the ADDRESSES section. This docket number is FAA-2005-20355; the directorate identifier for this docket is 2004-NM-198-AD.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to Boeing Model 727 airplanes equipped with an auxiliary fuel tank having a fuel pump installed. That NPRM was published in the Federal Register on February 15, 2005 (70 FR 7695). That NPRM proposed to require revising the airplane flight manual (AFM) to include limitations on operating the fuel pumps for the auxiliary fuel tank.

We provided the public the opportunity to participate in the development of this AD. We have considered the comments that have been submitted on the proposed AD.

One commenter supports the proposed AD.

One commenter notes that Revision 47 to the Boeing 727 AFM, dated May 17, 2004, includes procedural changes that are similar to the information that the proposed AD would require be inserted into the Limitations section of the AFM. The commenter feels that the requirements of the proposed AD are adequately addressed by incorporating Revision 47 to the AFM and that it would be more appropriate for the new information to be placed in the Normal Procedures section of the AFM rather than the Limitations section.

We do not agree. The wording in paragraph (f) of this AD is not identical to that in Revision 47 to the Boeing 727 AFM. Revision 47 contains a note that would allow the auxiliary tank pump(s) to remain “on” in certain situations. We find that the auxiliary tank pumps must be switched off immediately when the respective auxiliary tank fuel pump low pressure light illuminates. Thus, to ensure that the unsafe condition is adequately addressed, we find it necessary to require that the information specified in paragraph (f) of this AD be included in the Limitations section of the AFM, as proposed. Further, the limitation section of the AFM is the only section that is mandatory for operators. The unsafe condition which this AD is intended to correct is of such significance to necessitate mandating the procedure. We have not changed the final rule in this regard.

The same commenter requests that we revise paragraph (f) to be consistent with similar wording in Revision 47 to the Boeing 727 AFM. The commenter notes that paragraph (f) of the proposed AD states “Auxiliary tank fuel pump switches must not be positioned ‘ON* * *,’ ” and “Auxiliary tank(s) fuel pumps must not be ‘ON* * *.’ ” The commenter points out that the wording for the same instructions in Revision 47 of the AFM states that the “pumps must be off.”

We agree. We find that the wording referenced by the commenter is clearer, though the meaning is the same. We have revised paragraph (f) of this AD accordingly.

The same commenter states that is unclear if the intent of the proposed AD is to delete Note [1] in Revision 47 of the AFM, which states:

We agree with the commenter's request to clarify our intent. Our intent was that this qualifying note should not be included in the AFM revision required by paragraph (f) of this AD. As stated previously, we do not agree with the note in Revision 47 to which the commenter refers because we have determined that, to prevent dry operation of the fuel pumps for the auxiliary fuel tank, the affected auxiliary tank pumps must be switched off without delay when the auxiliary tank fuel pump low pressure light illuminates. We have revised paragraph (f) of this AD to clarify that we intend no exceptions to the requirement to switch off each auxiliary tank fuel pump as soon as the applicable low pressure light illuminates.

We have revised the second paragraph of the AFM revision specified in paragraph (f) of this AD to read, “When established in a level attitude at cruise, if the auxiliary tank(s) contain usable fuel and the auxiliary tank(s) pump switches are ‘OFF,’ the auxiliary tank(s) pump switches should be positioned ‘ON’ again.” The word “pump” was inadvertently omitted in this statement in the proposed AD.

We have carefully reviewed the available data, including the comments that have been submitted, 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.

There are about 300 airplanes of the affected design in the worldwide fleet. This AD will affect about 200 airplanes of U.S. registry. The AFM revision will take about 1 work hour per airplane, at an average labor rate of $65 per work hour. Based on these figures, the estimated cost of the AD for U.S. operators is $13,000, or $65 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.

1. In this order, we affirm, with certain clarifications, Order No. 2003-B, 1 which, together with Order Nos. 2003 and 2003-A, governs interconnection of large generators to the transmission grid. The pro forma Large Generator Interconnection Procedures (LGIP) and Large Generator Interconnection Agreement (LGIA) required in those orders help prevent undue discrimination, preserve the reliability of the nation's transmission system, and lower prices for customers by allowing a variety of generation resources to compete in wholesale electricity markets. At its core, the Commission's orders ensure that all Generating Facilities that will make sales for resale of electric energy in interstate commerce are offered Interconnection Service on comparable terms. These orders benefit customers by establishing the just and reasonable terms and conditions for interconnecting to the transmission grid, while ensuring that reliability is protected.

2. This order on rehearing reaffirms or clarifies the Commission's policies on the recovery of Network Upgrade costs and non-pricing policies. For example, it reaffirms the 20-year reimbursement policy for Network Upgrade costs and clarifies the Commission's policy regarding credits for Network Upgrades as it applies to Affected System Operators and jointly owned transmission facilities. The order also clarifies the Commission's jurisdiction under the Federal Power Act  2 to apply this Final Rule and further explains the Transmission Provider's payment obligation for reactive power supplied by an Interconnection Customer.

3. This order takes effect 30 days after issuance by the Commission. As with the Order No. 2003 compliance process, the Commission will deem the open access transmission tariff (OATT) of each non-independent Transmission Provider to be amended to adopt the clarifications to the pro forma LGIP and LGIA contained herein 30 days after issuance of this order by the Commission. And as with the Order No. 2003-B compliance process, each non-independent Transmission Provider will be required to amend its OATT to include the LGIP and LGIA clarifications contained herein within 60 days after issuance of this order by the Commission. Also, within 60 days after issuance of this order, each independent Transmission Provider must submit revised tariff sheets incorporating its clarifications to its OATT or an explanation under the independent entity variation standard as to why it is not proposing to adopt each clarification described in this order.

4. The Commission received 12 timely requests for rehearing or for clarification of Order No. 2003-B. 3 Under section 313(a) of the Federal Power Act (FPA), 4 requests for rehearing of a Commission order were due within thirty days after issuance of Order No. 2003-A, i.e. , no later than January 19, 2005. The Commission also received one answer from the North Carolina Electric Membership Corp. (NCEMC), which the Commission treats as yet another request for rehearing. Because this answer was submitted after the statutory 30-day rehearing deadline, it is rejected. However, the Commission will treat this late-filed request for rehearing as a request for reconsideration.

5. For a background discussion, please consult the prior orders in this proceeding. 5

6. In Order No. 2003, the Commission continued to require the Transmission Provider and any Affected System Operator to reimburse the Interconnection Customer for its upfront payments for Network Upgrades by means of credits against the Interconnection Customer's transmission bills. We stated that the Interconnection Customer, Transmission Provider, and Affected System Operator were permitted to adopt any alternative payment schedule that is mutually agreeable as long as all such amounts are refunded, with interest, within five years of the Commercial Operation Date of the Generating Facility. In Order No. 2003-A, we retained this general policy but removed the obligation to make a balloon payment for any unrefunded amounts after five years. In Order No. 2003-B, the Commission revised pro forma LGIA article 11.4.1 to state that, other credit and refund provisions of Order No. 2003-A notwithstanding, full reimbursement by the Transmission Provider shall not extend beyond 20 years from the Commercial Operation Date;  6 in other words, a balloon payment is required at 20 years.

7. Some petitioners argue that the Transmission Provider should not be required to reimburse the Interconnection Customer in full after 20 years if the Interconnection Customer has not earned enough credits (by taking delivery service) to reimburse it for the Network Upgrades. 7 For example, Entergy states that this requirement is unfair to native load customers, arbitrary, and inconsistent with the Commission's previous policies. Entergy argues that the mandatory repayment provision converts the Interconnection Customer's upfront payment for Network Upgrade costs that are directly caused by an Interconnection Request from an investment, where the Interconnection Customer is at risk, to a loan. Southern Company claims that the Commission's previous policy of not requiring a balloon payment and allowing transmission credits only as delivery service was taken from a particular generating facility, was arguably consistent with the Commission's policy of allowing Transmission Providers to charge the “higher of” incremental or embedded costs. However, Southern Company claims that, if a full refund is always required within 20 years, this policy would be violated.

8. Conversely, other petitioners argue that 20 years is too long to wait for full reimbursement of upfront payments. 8 Reliant states that the Commission erred by failing to return to the balanced crediting approach in Order No. 2003, which required the Transmission Provider to refund the balance of the Interconnection Customer's upfront payment within five years. Reliant argues that the 20-year reimbursement requirement does not provide incentives for proper siting decisions, and actually raises costs for the very customers the Commission is seeking to protect. This is because the additional financing costs of a 20-year refund period raise the cost of new generators who wish to enter the market. In Reliant's view, this creates a barrier to entry that harms competition, and thereby harms native load and other Transmission Customers.

9. In response to those petitioners that object to any requirement for full reimbursement on a date certain, as well as those that believe 20 years is too long to wait for reimbursement, we note that we have responded at length to many of these arguments in our previous orders. We therefore simply reiterate here our conclusion in Order No. 2003-B that our crediting and refund policy, including the 20-year reimbursement requirement, provides a reasonable balance between the objectives of promoting competition and infrastructure development, protecting the interests of Interconnection Customers, and protecting native load and other Transmission Customers. 9

10. Several petitioners ask the Commission to clarify whether an Affected System Operator has an obligation to reimburse the Interconnection Customer by means of a balloon payment 20 years after the Commercial Operation Date. 10 For example, NRECA asks the Commission to clarify that if credits provided by an Affected System Operator have not fully reimbursed the Interconnection Customer's upfront payment within 20 years, the Affected System Operator is not required to make a balloon payment, but instead may continue to provide the Interconnection Customer with credits for transmission service on the Affected System until the Interconnection Customer's entire upfront payment has been reimbursed.

11. On a related matter, NRECA also asks the Commission to clarify that, the Transmission Provider or Affected System Operator has no further obligation to reimburse the Interconnection Customer for its upfront payment if the Generating Facility ceases Commercial Operation before the Interconnection Customer has been completely reimbursed.

12. Finally, NCEMC asks the Commission to clarify the Interconnection Customer's right to receive a refund of its upfront payment for Network Upgrades on an Affected System when the Interconnection Customer is also a Network Customer of the Affected System. NCEMC states that it intends to construct a generating facility and designate it as a network resource on the Transmission Provider's Transmission System, where NCEMC is a network customer. Although NCEMC is also a Network Customer of the Affected System, it says that the transmission service revenues that the Affected System receives from NCEMC do not vary according to what resources are designated as Network Resources on the Affected System, but rather with NCEMC's load. NCEMC argues that a rule that would tie credits from the Affected System to incremental charges associated with transmission service taken from the Affected System with respect to the Generating Facility is inappropriate for an Interconnection Customer that is also a Network Customer on the Affected System.

13. In response to NRECA, we clarify that both the Transmission Provider and an Affected System Operator need provide credits for transmission service only when the Interconnection Customer takes transmission service with the Large Generating Facility identified as the primary point of receipt of that service. We clarify that both the Transmission Provider and an Affected System Operator must provide the 20-year lump sum reimbursement to refund any remaining balance, even if no transmission service was taken. Although Order No. 2003-B could be read to suggest that the Affected System need only provide reimbursement for transmission service taken, 11 this was not our intent. Indeed, the revised language in article 11.4.1 in Order No. 2003-B clearly subjects an Affected System Operator to the 20-year lump sum requirement. 12 This is consistent with the Commission's policy of treating a non-independent Affected System Operator the same as a non-independent Transmission Provider because both have the same incentive to frustrate the development of new, competitive generation. 13

14. In response to NRECA's second point, we clarify that the Affected System Operator, like the Transmission Provider, must reimburse the Interconnection Customer for its upfront payment even if the Generating Facility ceases Commercial Operation before the Interconnection Customer is completely reimbursed as long as the Interconnection Agreement between the Interconnection Customer and the Transmission Provider remains in full force and effect. 14

15. In response to NCEMC, we note that, because the circumstances that NCEMC describes are highly fact-specific, and we do not know all the relevant facts, they are not appropriately addressed in a rulemaking. Therefore, we will not attempt to answer NCEMC's request for clarification in this order on rehearing, and will address the issue if it arises in a specific proceeding.

16. In Order No. 2003-B, the Commission stated that, in the case of an Affected System that is jointly owned by public and non-public utilities, it is the responsibility of the Affected System Operator to provide the credits and to seek reimbursement for any amounts that it believes it is owed by the other owners. 15 If a Transmission Provider provides transmission service on a Transmission System that is jointly owned, that Transmission Provider must follow a similar procedure.

17. Several petitioners ask the Commission to clarify the crediting and refund responsibilities of an operator of an Affected System that is jointly owned. 16 For example, EEI asks the Commission to clarify that the public utility Transmission Provider's obligation to provide transmission credits is limited to the amount of upfront payments made for Network Upgrades owned by the Transmission Provider. EEI argues that the policy in Order No. 2003-B may work when the cost recovery for jointly owned facilities is provided for under a single tariff, but it presents problems when the various joint owners each provide transmission service independently under their own separate tariffs. In addition, Georgia Transmission Corporation asks the Commission to clarify that Order No. 2003-B does not require a non-jurisdictional owner of a jointly owned transmission system to reimburse the Affected System Operator or Transmission Provider. Georgia Transmission states that such clarification would be consistent with the Commission's statements in Order Nos. 2003 and 2003-A that “if an Affected System is a non-public utility, Order No. 2003 does not require that it provide refunds to the Interconnection Customer to satisfy the reciprocity condition.”

18. The Commission clarifies that it is not requiring every operator of a jointly owned system, whether it is a Transmission Provider or an Affected System Operator, to reimburse the Interconnection Customer for upfront payments for Network Upgrades received by the non-public utility owners of the system. The discussion in P 42 of Order No. 2003-B applies only to a situation where the operator is a public utility and has tariff administration responsibilities on behalf of the other owners. We clarify that the operator's responsibility for flowing through credits and reimbursing the Interconnection Customer for its upfront payment does not extend beyond its normal duties as the tariff administrator. Each owner of a jointly-owned system has the financial responsibility under its own Commission-regulated tariff to provide transmission credits and final reimbursement to the Interconnection Customer for the upfront payments that the owner has received. This responsibility does not extend to a non-public utility transmission owner or operator, of course. 17

On December 17, 1992, the United States, Canada, and Mexico (the parties) entered into an agreement, the North American Free Trade Agreement (the NAFTA). The provisions of the NAFTA were adopted by the United States with the enactment of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057 (December 8, 1993).

Under NAFTA Article 401(b) and 19 U.S.C. 3332(a)(1)(B)(i), a good originates in the territory of a party where each of the non-originating materials used in the production of the good undergoes an applicable change in tariff classification set out in Annex 401 of the NAFTA as a result of production occurring entirely in the territory of one or more of the parties. These change in tariff classification rules are set forth in General Note 12(t) of the Harmonized Tariff Schedule of the United States (“HTSUS”) (hereinafter “the Annex 401 rules”). It is therefore understood that unless a change in tariff classification results from an activity that qualifies as “production,” the mere fact that there is a prescribed change in tariff classification will not be considered as meeting a rule of origin.

The NAFTA does not explicitly address the question of whether disassembly occurring in a NAFTA country may be considered NAFTA origin-conferring “production” when the recovery of components by the disassembly operation satisfies the applicable rules of origin listed in Annex 401 of the NAFTA.

On March 13, 2003, the U.S. Customs Service (now Customs and Border Protection (“CBP”)) published in the Federal Register (68 FR 12011) a notice of proposed rulemaking (“NPRM”) setting forth proposed amendments to Part 181 to add a new § 181.132 to the CBP Regulations (19 CFR 181.132). The proposed rule stated that components which were recovered from the disassembly of used goods in a NAFTA country would be entitled to NAFTA originating status upon importation into the United States, provided that: (1) The recovered components satisfy the applicable NAFTA rule of origin requirements in Annex 401, and (2) if the rule of origin in Annex 401 applicable to the components does not include a regional value content requirement, the components are subject to further processing in the NAFTA country beyond certain specified minor operations.

The NPRM explained the need for a regulation to address disassembly in order to: (1) Provide an appropriate regulatory basis for the treatment of recycled or remanufactured goods under the NAFTA; (2) provide guidance regarding the meaning of the statutory term “production;” and (3) clarify the relationship between the Annex 401 rules of origin and the disassembly of goods. In addition, the NPRM noted that allowing the disassembly of used goods to confer origin under certain circumstances would promote recycling and re-manufacturing in North America and, therefore, would advance the economic and environmental objectives of the NAFTA.

The NPRM prescribed a 60-day period for the submission of public comments on the proposed regulatory changes. A total of 10 commenters responded. Nine comments focused on the proposed text while one comment concerned CBP's certification under the Regulatory Flexibility Act of 1980.

A majority of the comments received by CBP supported the proposed amendment which would allow components that are recovered from the disassembly of a used good in a NAFTA country to be entitled to NAFTA originating status upon importation into the United States. Most commenters agreed with CBP that interpreting “production” to include disassembly would promote recycling and re-manufacturing in North America.

However, all of the comments suggested changes regarding the approach set forth in the NPRM. Most commenters expressed the opinion that, while the proposed amendment was well intended, it would not completely remedy the situation and, in some cases, would restrict the ability of remanufactured goods to qualify for preferential treatment under NAFTA. Many commenters objected to the addition of a further processing requirement in cases where the applicable rule of origin did not include a regional value content requirement. Several commenters identified practical problems in administering the proposed regulation, including inconsistencies with commercial and accounting practices. Lastly, many commenters maintained that the proposed regulation was too complicated.

Of the 10 commenters who responded to the solicitation of comments on the proposed Part 181 changes, 9 provided one or more specific comments on the proposed § 181.132 text. The comments are discussed below.

Comment: Four commenters expressed concern with the unilateral approach being pursued by the U.S. Government in regard to the proposed amendment. The commenters stated that the adoption of an amendment solely within the territory of the United States would give rise to uncertainty within the trading community and result in inconsistent application of the rules of origin between the NAFTA parties. These commenters indicated their preference for the development of a trilateral approach.

CBP's Response: A trilateral approach remains under discussion in the NAFTA working group. While there appears to be agreement in principle, the trilateral text is still being developed. In the meantime, this interpretive regulatory guidance is needed to aid U.S. importers in exercising reasonable care.

Comment: Four commenters suggested adopting an approach similar to that taken by the U.S. Administration in several recent free trade agreements. Under this approach, “goods wholly obtained or produced entirely” in the territories of the parties are considered to be originating. “Recovered goods” are specifically included in the definition of “goods wholly obtained or produced entirely” in the territories of the parties. Thus, “recovered goods” are considered to be originating goods. The commenters stated that the same result could be achieved by clarifying the NAFTA definition of “goods wholly obtained or produced” under the NAFTA Uniform Regulations. According to these commenters, this approach recognizes disassembly as conferring origin without the technical and cumbersome requirement of establishing that disassembly operations satisfy the product-specific rules of origin.

Two commenters supported adopting the provision for “recovered goods” in the definition of “goods wholly obtained or produced entirely.” One commenter proposed that a new item covering “materials recovered by means of disassembly” be included in the definition of “goods wholly obtained or produced entirely.” Another commenter recommended amending the existing provision for waste and scrap, which exists under the definition of “goods wholly obtained or produced entirely,” to provide for recovered goods.

CBP's Response: CBP agrees that the approach taken by the United States in several recent free trade agreements is administrable. However, amending the definition of “goods wholly obtained or produced” in NAFTA cannot be achieved merely by amending the definition found in the regulations. The definition of “goods wholly obtained or produced” is found in Article 401 of the NAFTA and any change would require an amendment to the agreement and implementing legislation.

Comment: One comment emphasized the importance of consistency. This commenter stated that there should be as much consistency as possible among the various agreements to which the United States is a party.

CBP's Response: While agreeing that consistency of rules under various free trade agreements is desirable, CBP's responsibility is to implement agreements as negotiated and implemented in U.S. law.

Comment: Several commenters maintained that the fundamental basis on which the Annex 401 rules were negotiated presumed the manufacture or assembly of a good from its constituent parts. Thus, the commenters believed that interpreting the term “production” to include disassembly is not sustainable when interpreted in context and in light of the objectives and purpose of the agreement.

CBP's Response: As indicated in the NPRM, CBP finds no evidence showing that the NAFTA intended not to treat “disassembly” as a production process. The term “production” includes a broad range of economic activity. Moreover, the goals of the NAFTA include elimination of barriers to trade, facilitation of cross-border movement of goods, promotion of economic activity in North America, and protection of the environment. Thus, it is consistent with the free trade purposes of NAFTA to treat the recovery of goods by disassembly as “production” under the NAFTA rules of origin.

Comment: Two commenters expressed a desire for an approach that would confer originating status on goods recovered from disassembly operations in a manner that applies equally to all manufacturers across industry sectors. These commenters note that differences in the structure of the Harmonized System may result in lack of uniformity of application across industry sectors.

CBP's Response: CBP notes that any lack of uniformity in the treatment of recovered components will parallel the effect of the applicable NAFTA rules of origin on other types of “production.” Application of Annex 401 does result in lack of uniformity of application across industry sectors. The results depend on both the structure of the Harmonized System and the product-specific rules in Annex 401 which were negotiated in the context of trade policy goals, which may differ between sectors. There is no uniform level of processing across sectors in the rules.

CBP notes that in many cases where a heading change rule cannot be met, an alternative rule of origin allows a change within the heading provided a regional value content requirement is met. CBP also notes that Article 401(d) provides a special rule for goods and parts that are classified in the same heading or subheading where there can be no change in tariff classification. CBP believes that the fact that some recovered goods will meet a tariff shift requirement while others will not is an insufficient reason to abandon the proposed regulation altogether (as this result will comport with the NAFTA rules of origin themselves).

Comment: Six commenters were opposed to the imposition of additional processing requirements for recovered components that meet the tariff shift rule under Annex 401. The proposed regulation specified that recovered components that met a tariff shift rule, but were not subject to a regional value content (RVC) requirement, had to be further processed beyond certain minor operations.

The commenters argued that the effect of this requirement is that recovered components that would otherwise qualify for the NAFTA preference would not qualify unless they had been subjected to additional processing. Additionally, these commenters stated that this “advanced-in-value” requirement effectively makes the origin requirements applicable to goods derived from disassembly operations stricter than those applicable to other goods, which need only satisfy the Annex 401 requirements. They believe that requiring goods derived from disassembly operations to satisfy both the Annex 401 rule of origin and the additional processing requirements imposes a double burden on remanufacturers that undermines the goals of the rule.

Two commenters stated that the additional processing requirement is unnecessary because the Annex 401 rules of origin, which were negotiated and agreed to by all three countries, already define the degree of production that will confer origin on non-originating materials. In some cases, that degree of production would involve a tariff shift, in others a regional value content requirement, and in still others a combination of both. However, the commenters argued that, in all cases, the degree of production established by the Annex 401 rules of origin would be sufficient to address when disassembly results in an originating good.

One commenter believed that disassembly is merely the inverse of assembly. Therefore, if the applicable Annex 401 rule of origin provides that origin is conferred by a simple tariff shift that may be achieved through assembly, achieving that same tariff shift through disassembly should also confer origin.

Another commenter argued that while the assembly process is predictable and quantifiable because every part entering the production line is the same, each disassembly is unique due to the condition of the used good, and that disassembly may be far more difficult than simple assembly with clean new parts. Thus, the proposed rule does not recognize the complexity and difficulty of disassembly and ignores the substantial effort necessary to recover parts from used equipment.

Several commenters objected to the proposed rule because some recovered components are not subject to operations other than those enumerated as minor operations in the proposed rule. Two commenters stated that there is little in the remanufacturing process that cannot be categorized within the list of minor operations. One commenter stated that the remanufacturing process consists of all the listed processes linked together. Thus, the commenters believed that the additional requirements would preclude the remanufacturing process from conferring originating status on recovered components.

One commenter believed that the additional processing requirement would increase the complexity of NAFTA compliance systems because it may be necessary to record the processing performed on individual recovered components. The commenter stated that this would create a de facto direct identification requirement which may be impractical or impossible to implement and very difficult to audit.

CBP's Response: CBP agrees that the Annex 401 rules define the degree of production required for conferring origin and has deleted the additional processing requirements.

Comment: Several commenters objected to the application of the Annex 401 rules of origin. They claimed that subjecting recovered components and remanufactured goods to the same NAFTA rules as items produced entirely from new components makes it extremely difficult to qualify remanufactured goods as originating goods under the NAFTA.

The commenters argued that, in many cases, NAFTA certificates are not available for recovered components and, therefore, they must be deemed non- originating. Furthermore, when applying the Annex 401 rules to the remanufactured good, the recovered component often fails to satisfy the required tariff shift because it is generally classified in the same tariff provision as the remanufactured good. These commenters also contended that if the remanufactured good is subject to an RVC rule, the good will fail to meet the rule because the recovered component often represents the majority of the value or net cost of the remanufactured good. In this situation, the RVC cannot be met because the recovered component is deemed to be non-originating.

CBP's Response: The situation the commenters describe is one of the reasons that more recent free trade agreements take a different approach to recycled and recovered goods, but the issue here is how to interpret NAFTA, and solutions are limited by the NAFTA text. The feasibility of determining the cost or value of a recovered component will be discussed later in this document.

Comment: Four commenters expressed the view that the proposed rule should be a simple rule that treats all materials yielded from disassembly in a NAFTA country as originating materials. These commenters stated that the removal of a worn component should be an origin-conferring process. This would ensure that the value of the recovered component, including the very substantial content resulting from the labor involved in the removal, will be included in the value of originating materials when determining whether the remanufactured good qualifies as an originating good. By considering the removal of worn parts to be origin conferring, the commenters stated that it would be possible to count that valuable operation towards qualifying the remanufactured good as an originating good.

These commenters contended that the above “simple” rule could be administered more easily than CBP's proposed rule which they characterized as highly complex and difficult, if not impossible, to administer. With respect to CBP's concern regarding sufficient processing, the commenters suggested that CBP could condition this rule by providing that goods yielded from a “minor disassembly” would not be treated as NAFTA originating. They suggested that disassembly of an article into five (or ten) or fewer components by processes such as removing screws, bolts, pins or other fasteners could be treated as a “minor disassembly” operation. Moreover, certain minor operations, such as separating a good and its component by disconnecting cables or by unsnapping could be ruled not to constitute disassembly. Thus, these commenters proposed a rule that treats all components yielded from disassembly as NAFTA originating, subject to a simple disassembly exception. The commenters claimed that their proposal would meet the goals of NAFTA while avoiding administrative problems.

Several remanufacturers expressed dissatisfaction with the proposed regulation for the reason that their recovered parts would never qualify under the proposed rule since the parts would not satisfy the required tariff shift and also would not meet the RVC requirement based only on labor costs. These commenters support a simple disassembly rule under which recovered parts would qualify as originating. If the recovered parts were considered originating, they could meet the RVC requirement associated with the rule for the remanufactured good. This approach would allow the recovered parts to qualify as an originating material but would still require the producer of the remanufactured good to meet the NAFTA Annex 401 rule of origin applicable to the remanufactured good.

CBP's Response: Although CBP understands the appeal of a “simple” disassembly rule, CBP cannot adopt such an approach because it conflicts with the Annex 401 rules of origin. CBP cannot disregard the rules of origin that already exist for specific products; the Annex 401 rules of origin set the minimum threshold that must be met in order to confer originating status to a good.

The commenters would prefer to have a new rule that allows mere disassembly to confer origin without having to meet any tariff shift or regional value content requirements. CBP does not have the authority to change the Annex 401 rules of origin. The only question addressed in this interpretive regulation is whether the NAFTA definition of production can be interpreted to include disassembly. CBP is not adopting a new rule of origin.

Comment: One commenter maintained that all goods which are subject to additional processing should be treated as originating goods without regard to whether the good meets the Annex 401 rules. This commenter stated that if CBP must require that goods be advanced in value or improved in condition, then all goods that satisfy the additional processing requirements should be considered originating, regardless of whether they satisfy the specific rule of origin under Annex 401. The commenter recommended a new rule in which the Annex 401 rules are overridden. A component recovered from a good disassembled in the territory of a party would be considered to be originating as a result of such disassembly provided that the recovered component is advanced in value or improved in condition by means of additional processing other than certain listed minor processes.

CBP's Response: CBP disagrees. The Annex 401 rules of origin set forth the minimum level of processing required and cannot be disregarded.

Comment: One commenter expressed concern with how CBP will interpret a required change in tariff classification. The commenter provided an example involving a cover from the document feeder portion of a laser printer. The commenter asked whether CBP would focus on the laser printer or the document feeder for the purpose of determining whether the cover met a required change in tariff classification. The cover meets the tariff shift requirement when the laser printer is viewed as the non-originating material. However, the cover does not meet the tariff shift requirement when the document feeder is viewed as the non-originating material.

CBP's Response: CBP assumes that, in the example provided by the commenter, the remanufacturer disassembled the laser printer into various parts, including the document feeder, and then disassembled the document feeder into its constituent parts, including the cover. Under the principles of self-produced materials contained in part II, section 4(8) of the appendix to part 181 of the CBP Regulations (19 CFR part 181, appendix), the producer should be able to designate the laser printer as the non-originating material for the purpose of determining whether the non-originating materials underwent the applicable change in tariff classification.

Comment: One commenter suggested that remanufactured goods should be considered to be originating goods and provided a precise definition of remanufactured goods. In order to qualify as an originating good, the product must: (1) Be dismantled; (2) have all parts cleaned, inspected and returned to sound working condition; and (3) be reconstructed to sound working condition. In addition to this definition, the commenter recommended a rule which requires that the components undergo processing that restores their functionality and fit; the components be re-assembled back into an item that is the equivalent of the item disassembled; all “new” parts used in the remanufacturing process satisfy the traditional specific rules of origin for the finished item; and the originating value of the recovered parts be some derivation of the core charge value if a core charge applies. The commenter believes that this definition would eliminate the possibility of disassembly operations being used as a method of circumvention because there must be complete reassembly.

This commenter also proposed, with respect to country of origin marking, that all remanufactured parts be labeled “Remanufactured in (named country),” and that the country of origin of the used items imported into a territory and used in the remanufacturing process be the country in which the parts expired, regardless of marking.

CBP's Response: The Annex 401 rules of origin cannot be disregarded. The regulation under consideration addresses the issue of whether goods that are the result of disassembly are considered to have undergone “production” for purposes of determining whether the good qualifies as an originating good under the NAFTA. The regulation does not address country of origin for marking purposes. Country of origin for NAFTA marking purposes is governed by part 102 of the CBP Regulations (19 CFR part 102). CBP notes Headquarters Ruling Letters 561209, dated May 4, 1999, and 561854, dated December 15, 2000, which address the country of origin marking of rebuilt automotive parts.

Comment: One commenter suggested that, if the restrictions on “minor operations” are included in the final regulation, “precision machining” should be defined as “machining performed on a numerically controlled mill, lathe or similar equipment.”

CBP's Response: As noted above, CBP has decided to delete the portion of the proposed regulation that refers to minor operations.

Comment: Two commenters stated that it is unlikely that a new non-originating good would be disassembled in one party's territory and shipped to another party where it would be reassembled. According to these commenters, the importer would have to pay duties, fees and brokerage charges on the initial importation into the party where the goods would be disassembled; incur the cost of setting up a disassembly operation; pay the overhead costs and costs to employ workers; pay additional transportation and handling costs; pay broker charges on the subsequent importation into the territory of the other party where the “recovered goods” would be reassembled; and pay all the same costs noted previously for the subsequent reassembly in the territory of the other party. Thus, these commenters believe it is highly unlikely that the duty savings would be substantial enough to make such operations feasible from a cost/benefit standpoint.

One commenter suggested excluding high duty rate goods from the disassembly rule but acknowledged that most high duty rate goods (textiles, footwear, chemicals, agricultural products, etc.) do not easily lend themselves to disassembly.

Another commenter stated that precluding application of the proposed rule to new products adequately deals with possible abuses of disassembly to confer origin.

CBP's Response: CBP specifically requested comments on the view that an applicable value-content rule or alternative rule would be sufficient to permit the disassembly of new goods to be considered “production.” None of the comments received endorsed this view. Accordingly, the final rule continues to reflect the portion of the proposed rule that precludes application of the regulation to new goods.

Article 412 of NAFTA and section 17 of the appendix to 19 CFR part 181 contain a very broad anti-circumvention provision which states that a good will not be considered to be an originating good if the object of the production can be shown by a preponderance of the evidence to have been to circumvent the rules of origin. CBP believes that a change in tariff classification resulting from the disassembly of new, non-originating goods should not make the resulting goods eligible for originating status. Generally, a “new” good is a good which is in the same condition as it was when it was manufactured and which meets the commercial standards for new goods in the relevant industry.

Accordingly, § 181.132(b) in this final rule document provides that the disassembly of new goods will not be considered “production” for the purposes of NAFTA Article 415 and the NAFTA rules of origin. To clarify the meaning of the term “new goods,” CBP also has included in § 181.132(b) the definition set forth above for this term.

Comment: One commenter pointed out an error in proposed § 181.132(c). The reference to “Schedule V” should be “Part V.” However, the commenter believes that a reference to automotive goods is unnecessary because remanufactured goods are not used as original equipment in the production of motor vehicles. Thus, they do not fall within the definition of “light duty automotive good” or “heavy-duty automotive good” and would not be subject to tracing requirements.

CBP's Response: CBP agrees that the reference in proposed § 181.132(c) should have been to “Part V.” CBP takes note of the commenter's statement that remanufactured goods are not used as original equipment in the production of motor vehicles. Upon further reflection, CBP has decided to delete paragraph (c) because it is unnecessary.

Comment: The Office of Advocacy of the U.S. Small Business Administration (SBA) expressed concern that the proposed rule's certification pursuant to the Regulatory Flexibility Act was deficient. CBP certified that the proposed rule would not have a significant economic impact on a substantial number of small entities. However, the SBA is concerned that there is no information on the number of small entities that would be impacted by this rule or the magnitude of the impact. Based on discussions with small entities in the automotive recycling business, the SBA recommended that CBP revisit its certification and at a minimum provide a factual basis for certification. The SBA stated that CBP must show which small entities will be affected and whether those affected constitute a substantial number within the regulatory industry.

CBP's Response: In the NPRM, CBP certified that the proposed rule would not have a significant economic impact on a substantial number of small entities. However, upon reconsideration, CBP believes that the proposed rule should have stated that the Regulatory Flexibility Act is not applicable to this rule because the rule is exempt from notice and comment procedures pursuant to the Administrative Procedure Act (5 U.S.C. 553). First, this is an interpretive rule that is exempt from notice and public procedure pursuant 5 U.S.C. 553(b)(A). Second, this rule involves a foreign affairs function of the United States because it implements an international trade agreement. A notice of proposed rulemaking is not required for such rules pursuant to 5 U.S.C. 553(a)(1). Accordingly, because the Regulatory Flexibility Act, as amended (5 U.S.C. 601 et seq. ) applies to a rule only when an agency is required by 5 U.S.C. 553 or any other law to publish a notice of proposed rulemaking, this rule is not subject to the regulatory analysis or other requirements of 5 U.S.C. 603 and 604.

Even if the Regulatory Flexibility Act applied to this rule, CBP would again certify that this final rule does not have a significant economic impact on a substantial number of small entities. The rule has only a positive economic impact on small (or other) entities regulated by the rule. The rule regulates only U.S. importers of components of used goods that were recycled or remanufactured in Canada or Mexico, and, rather than increasing the economic burdens on these importers, the rule provides these importers with customs duty relief.

Comment: Four commenters expressed opposition to requiring a RVC calculation for recovered components because it is claimed either that there is no clear method for valuing individual components or that their value is not readily ascertainable. Most commenters stated that they did not know how to value the components removed from used goods. They requested that the rules clarify how the value and origin of individual used components are to be established. The commenters claimed that identifying the cost of each individual recovered component from the cost of the used good would not be feasible. While there may be an ascertainable value for the used good, there is not necessarily a purchase price or individualized value for the components included inside it. Additionally, the commenters claimed that it is not clear whether the value of the used component or the used good is to be included in the value of non-originating materials.

CBP's Response: CBP agrees that applying the value-content requirement to the disassembly process raises certain questions. However, the value-content requirement exists as part of the Annex 401 rule and cannot be disregarded.

CBP recognizes that if more than one component is recovered from the used good, the value of the used good should be allocated over the disassembled components. Additionally, the cost of the disassembly would have to be spread over all of the constituent disassembled components and then reallocated and added to the cost of each of those components. CBP notes that it has previously ruled that the scrap value of the parts and components that cannot be reused may be deducted from the value of the non-originating materials. See Headquarters Ruling Letter 547088, dated August 29, 2002. Remanufacturers may have internal bookkeeping records that would aid in valuing such components. CBP acknowledges that trade in remanufactured goods already exists and is inclined to consider reasonable accounting methods that have been used consistently in the trade.

Comment: Many commenters began their analysis by attempting to determine whether the used good was an originating good. They stated that it was highly unlikely that a NAFTA certificate of origin could be provided for the used good since the good would probably be several years old and pertinent records would no longer be available.

CBP's Response: CBP agrees. It is likely that the used good will be assumed to be non-originating. However, the new regulation allows the component recovered from the used good to qualify as an originating good. If the recovered component meets the Annex 401 rule applicable to that component, the recovered component will be considered to be an originating good (or material).

Accordingly, based on the comments received and the analysis of those comments as set forth above, and after further review of this matter, CBP believes that the proposed regulatory amendments regarding disassembly should be adopted as a final rule with the following changes:

1. The additional processing requirements set forth in paragraph (a)(2) of proposed § 181.132 have been deleted for the reasons explained in the analysis of comments.

2. Paragraph (c) of the proposed regulation has been deleted because, as explained further in the analysis of comments, the reference to automotive goods in this provision is unnecessary.

This document does not meet the criteria for a “significant regulatory action” as specified in E.O. 12866.

Because this rule interprets and implements the obligations of the United States under the NAFTA, a notice of proposed rulemaking was not required pursuant to 5 U.S.C. 553(a)(1) and (b)(A). Accordingly, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) are inapplicable to this rule.

The principal author of this document was Shari Suzuki, Office of Regulations and Ruling, Bureau of Customs and Border Protection. However, personnel from other offices participated in its development.

This document is being issued by CBP in accordance with § 0.1(a)(1) of the CBP Regulations (19 CFR 0.1(a)(1)), pertaining to the authority of the Secretary of the Treasury (or his/her delegate) to approve regulations related to certain CBP revenue functions.

As published, the preamble and rule text contain errors which may be misleading and need to be corrected.

On March 1, 2005, we published a notice of proposed rulemaking (NPRM) entitled, “Drawbridge Operation Regulation; Bayou La Batre, Bayou La Batre, AL,” in the Federal Register (70 FR 3919). No comments were received regarding the proposed rule. No public meeting was requested, and none was held.

The U.S. Coast Guard, at t)097 he request of the Alabama Department of Transportation and supported by the Mayor of the City of Bayou La Batre and the Mobile County Public School System, is changing the times of the existing drawbridge operation regulation. Currently, the bridge opens on signal except that the draw need not be opened from 8 p.m. to 4 a.m. daily, and from 6:30 to 8:30 a.m. and from 2 p.m. to 5 p.m. Monday through Saturday except holidays.

In an effort to assess and accurately determine the needs of the community, traffsic counts and bridge tender logs were supplied by Alabama Department of Transportation. A review of the logs of drawbridge openings and traffic counts reveal that adjusting the marine traffic closures to coordinate with vehicular rush hour traffic should not significantly impact the flow of marine traffic. Allowing the bridge to remain closed to marine traffic during times that coincide with the heaviest vehicular traffic counts would help relieve the morning and afternoon rush hour commuter traffic congestion across the bridge while having minimal impact on vessel traffic.

Navigation at the site of the bridge consists primarily of recreational pleasure craft, fishing vessels, crew boats and tugboats with barges. Alternate routes are not available to marine traffic.

No comments were received in response to the NPRM Public Notice 04-05 dated March 2, 2005.

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 rule allows vessels ample opportunity to transit this waterway with proper notification before and after the peak vehicular traffic periods. According to the vehicle traffic surveys, the public at large is better served by the additional closure times during the noontime lunch periods.

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.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule so that they can 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 the preamble.

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

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

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not cause 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 (32)(e), of the Instruction, from further environmental documentation. This final rule involves modifying the existing drawbridge operation regulation for a benefit of all modes of transportation. It will not have any impact on the environment.

Bridges.

The Metropolitan Avenue Bridge has a vertical clearance in the closed position of 10 feet at mean high water and 15 feet at mean low water. The existing drawbridge operation regulations are listed at 33 CFR 117.801(e).

The owner of the bridge, New York City Department of Transportation (NYCDOT), requested a temporary deviation from the drawbridge operation regulations to facilitate rehabilitation repairs at the bridge. The bridge must remain in the closed position to perform these repairs.

Under this temporary deviation the NYCDOT Metropolitan Avenue Bridge may remain in the closed position from July 8, 2005 through July 22, 2005 and from July 25, 2005 through August 31, 2005.

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

On May 6, 2005, we published a notice of proposed rulemaking (NPRM) entitled “Security Zone; Georgetown Channel, Potomac River, Washington, DC” in the Federal Register (70 FR 23948). We received seven pieces of written correspondence commenting on the proposed rule. Based on these comments we reduced the size of the security zone. 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 . Immediate action is needed to protect the public from waterborne acts of sabotage or terrorism. Any delay in the effective date of this rule is contrary to the public interest.

Due to increased awareness that future terrorist attacks are possible, the Coast Guard, as lead Federal agency for maritime homeland security, has determined that the Captain of the Port Baltimore must have the means to be aware of, deter, detect, intercept, and respond to asymmetric threats, acts of aggression, and attacks by terrorists on the American homeland while still maintaining our freedoms and sustaining the flow of commerce. This security zone is part of a comprehensive port security regime designed to safeguard human life, vessels, and waterfront facilities against sabotage or terrorist attacks.

In this particular rulemaking, to address the aforementioned security concerns, and to take steps to prevent the catastrophic impact that a terrorist attack against a large number of spectators and high-ranking officials during the annual July 4th celebration would have on the public interest, the Coast Guard is establishing a security zone that extends 75 yards from the eastern shore upon the waters of the Georgetown Channel of the Potomac River, from the surface to the bottom, between the Long Railroad Bridge (the most eastern bridge of the 5-span, Fourteenth Street Bridge Complex) to the Theodore Roosevelt Memorial Bridge and all waters in between, totally including the waters of the Georgetown Channel Tidal Basin.

This security zone will help the Coast Guard to prevent vessels or persons from engaging in terrorist actions against a large number of spectators and high-ranking officials during the annual July 4th celebration. Due to these heightened security concerns, and the catastrophic impact a terrorist attack on the National Mall in Washington, DC during the annual July 4th celebration would have on the large number of spectators and high-ranking officials, and the surrounding area and communities, a security zone is prudent for this type of event.

The Coast Guard received a total of seven pieces of written correspondence in response to the NPRM. No public meeting was requested and none was held. What follows is a review of, and the Coast Guard's response to, the issues and questions that were presented by these commenters concerning the proposed rule.

(1) Seven commenters indicated that the proposed rule would effectively cut off the Potomac River north of the Roosevelt Bridge to all water traffic to recreational boaters.

We have revised the security zone so that it only restricts vessels from transiting within 75 yards of the eastern shore of the Potomac River, traffic will be allowed to move along the west side of the river. Vessels wishing to anchor to watch the fireworks will be allowed to do so in the middle of the river, leaving the west side of the river open for through-traffic.

(2) Two commenters indicated that the proposed rule would unnecessarily affect human powered watercraft, in which persons have viewed the fireworks from on the water in past years, and that such craft pose little risk to the spectators and high-ranking officials on the National Mall.

As mentioned above, we do not intend to restrict these types of watercraft from entering, operating or remaining within areas along the Virginia side or the middle of the Potomac River.

(3) Four commenters indicated that the proposed rule will have a negative economic impact on area marinas directly and indirectly impacted by the rulemaking.

By allowing vessels and other watercraft to safely transit along the Virginia side of the Potomac River, the economic impact on area businesses will be limited.

(4) Two commenters indicated that the proposed rule could have significant safety impacts on boating navigation.

We make every effort to carefully consider the effects such a regulation has on the boating public, while safeguarding large numbers of spectators and high-ranking officials during this extremely publicized event. We believe vessel congestion will actually be reduced, since vessels and other watercraft not deemed a security threat will be allowed to safely transit along the Virginia side of the Potomac River. Also, in order to maintain a clear channel along the Virginia side of the Potomac River, vessels wishing to anchor will be allowed to do so in the middle of the river.

(5) One commenter indicated that the proposed rule would be achieving the terrorists” goals by restricting the boating public and if such a regulation was imposed and no credible threat existed, political repercussions for the Coast Guard may result.

The revision of the security zone to extend only 75 yards off the eastern shore of the Potomac River allows the boating public to both safely transit the river and view the July 4th Celebration fireworks from the water.

(6) One commenter indicated that the proposed rule would require boaters to contact the Captain of the Port Baltimore, which may not be practical in all cases.

We do not feel that many vessels, if any, will need to enter the revised security zone. Vessels will be required to request permission from the Captain of the Port Baltimore if the operator feels they have a legitimate need to enter the security zone.

No request for additional comments on the revised rule is made since we believe the revised security zone adequately addresses all the above comments.

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 security zone will encompass only a small portion of the waterway.

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 might be small entities: the owners or operators of vessels intending to transit or anchor in a portion of the Potomac River (including the waters of the Georgetown Channel Tidal Basin) from 12:01 a.m. to 11:59 p.m. on July 4, 2005.

This security 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 less than 24 hours. Before the effective period, the Coast Guard will issue maritime advisories widely available to users of the river to allow mariners to make plans for transiting the affected areas. Because the zone is of limited size, it is expected that there will be minimal disruption to the maritime community.

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. However, we received no requests for assistance from any small entities.

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 regulation establishes a security zone. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES.

Pursuant to 5 U.S.C. 553, a notice of proposed rulemaking (NPRM) has not been published for this regulation and good cause exists for making it effective without publication of an NPRM in the Federal Register . The air show poses several dangers to the public including excessive noise and objects falling from any accidents. Accordingly, prompt regulatory action is needed in order to provide for the safety of spectators and participants during the event. If normal notice and comment procedures were followed, this rule would not become effective until after the date of the event.

The Coast Guard is adopting a temporary safety zone regulation on the waters of Commencement Bay, Washington, for the Freedom Fair Air Show. The Coast Guard has determined it is necessary to close the area in the vicinity of the air show in order to minimize the dangers that low-flying aircraft present to persons and vessels. These dangers include, but are not limited to excessive noise and the risk of falling objects from any accidents associated with low flying aircraft. In the event that aircraft require emergency assistance, rescuers must have immediate and unencumbered access to the craft. The Coast Guard, through this action, intends to promote the safety of personnel, vessels, and facilities in the area. Entry into this zone will be prohibited unless authorized by the Captain of the Port or his representative. This safety zone will be enforced by Coast Guard personnel. The Captain of the Port may be assisted by other federal, state, or local agencies.

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

We expect the economic impact of this temporary rule to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DHS is unnecessary. This expectation is based on the fact that the regulated area established by this rule encompasses an area of Commencement Bay not frequented by commercial navigation. The regulation is established for the benefit and safety of the recreational boating public, and any negative recreational boating impact is offset by the benefits of allowing the participating aircraft to fly. For the above reasons, the Coast Guard does not anticipate any significant economic impact.

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

This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit this portion of Commencement Bay during the time this regulation is in effect. The zone will not have a significant economic impact on a substantial number of small entities due to its short duration and small area. The only vessels likely to be impacted will be recreational boaters and small passenger vessel operators. The event is held for the benefit and entertainment of those above categories. Because the impacts of this rule are expected to be so minimal, the Coast Guard certifies under 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601-612) that this temporary rule will not have a significant economic impact on a substantial number of small entities.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section. 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 temporary rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

We have analyzed this temporary rule under Executive Order 13132 and have determined that this rule does not have implications for federalism under that Order.

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 State, local, or tribal government, in the aggregate, or the private sector of $100,000,000 or more in any one year. Though this rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This temporary rule would 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 temporary 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. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

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

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

We have analyzed this rule under Commandant Instruction M16475.1D, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. This rule establishes safety zones which have a duration of no more than two hours each. Due to the temporary safety zones being less than one week in duration, an Environmental Checklist and Categorical Exclusion is not required.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 533(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. These security zones are necessary on short notice to protect vessels and people from damage or injury from sabotage or other subversive acts. The duration of this temporary final rule is necessary while a rulemaking for a permanent security zone is completed. For these same reasons, 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 . Although the Coast Guard has good cause to issue this effective temporary rule without first publishing a proposed rule, you are invited to submit comments and related material regarding this rule on our before August 29, 2005. We may change the temporary final rule based on your comments.

The Coast Guard is establishing security zones within three different areas in the Captain of the Port (COTP), Prince William Sound Zone. The Trans-Alaska Pipeline (TAPS) Valdez Marine Terminal (Terminal) security zone encompasses the waters of Port Valdez between Allison Creek to the east and Sawmill Spit to the west and offshore to marker buoys A and B (approximately 1.5 nautical miles offshore from the TAPS Terminal). The tank vessel in COTP Prince William Sound Zone encompasses the waters within 200 yards of a tank vessel within the COTP, Prince William Sound Zone. The Valdez Narrows security zone encompasses the waters 200 yards either side of the Tanker Optimum Trackline through Valdez Narrows between Entrance Island and Tongue Point. This Valdez Narrows zone will be activated and subject to enforcement only when a tank vessel is in this security zone.

These security zones are necessary to protect TAPS Terminal and tank vessels from damage or injury from sabotage or other subversive acts. The duration of this temporary final rule is necessary while a rulemaking for a permanent security zone is completed. The Coast Guard has worked closely with local and regional users of Port Valdez and Valdez Narrows waterways to develop these security zones in order to mitigate the impact on commercial and recreational users.

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).

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 in a portion of Port Valdez.

These security zones will not have a significant economic impact on a substantial number of small entities for the reason that vessel traffic can pass safely around the security zones.

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

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:

• Crop production (NAICS 111), e.g., agricultural workers; greenhouse, nursery, and floriculture workers; farmers.

• Animal production (NAICS 112), e.g., cattle ranchers and farmers, dairy cattle farmers, livestock farmers.

• Food manufacturing (NAICS 311), e.g., agricultural workers; farmers; greenhouse, nursery, and floriculture workers; ranchers; pesticide applicators.

• Pesticide manufacturing (NAICS 32532), e.g., agricultural workers; commercial applicators; farmers; greenhouse, nursery, and floriculture workers; residential users.

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions discussed above. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

In addition to using EDOCKET (http://www.epa.gov/edocket/) , you may access this Federal Register document electronically through the EPA Internet under the “ Federal Register ” listings at http://www.epa.gov/fedrgstr/ . A frequently updated electronic version of 40 CFR part 180 is available at E-CFR Beta Site Two at http://www.gpoaccess.gov/ecfr/ . To access the OPPTS Harmonized Guidelines referenced in this document, go directly to the guidelines at http://www.epa.gpo/opptsfrs/home/guidelin.htm/.

In the Federal Register of January 7, 2005 (70 FR 1435) (FRL-7694-3), EPA issued a notice pursuant to section 408(d)(3) of the FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 8E5012) by IR-4, 681 US Highway #1 South, North Brunswick, NJ 08902-3390. The petition requested that 40 CFR 180.532 be amended by extending the time-limited tolerances to December 31, 2007, for residues of the fungicide, cyprodinil, 4-cyclopropyl-6- methyl-N-phenyl-2-pyrimidinamine in or on the raw agricultural commodities onion, dry bulb at 0.60 part per million (ppm); onion, green at 4.0 ppm; and strawberry at 5.0 ppm. This notice included a summary of the petition prepared by Syngenta Crop Protection, Inc., the registrant. Comments were received from one individual opposing and objecting to the establishment of tolerances for residues of cyprodinil. The individual criticized IR-4's involvement in the pesticide registration as well as EPA's way of conducting pesticide registration. EPA's response to the public comments received is in Unit V. of this document. The tolerances will expire on December 31, 2007.

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

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

Consistent with section 408(b)(2)(D) of the FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure, consistent with section 408(b)(2) of the FFDCA, for tolerances for residues of cyprodinil on onion, dry bulb at 0.60 ppm; onion, green at 4.0 ppm; and strawberry at 5.0 ppm.

In the Federal Register of September 23, 2003 (68 FR 54808, FRL-7326-4) the Agency published a Final rule establishing tolerances for residues of cyprodinil in or on brassica, head and stem, subgroup 5A; brassica, leafy greens, subgroup 5B; carrot; herb, subgroup 19A, dried; herb, subgroup 19A, fresh; longan; lychee; pulasan; rambutan; Spanish lime; and turnip, greens. When the Agency conducted the risk assessments in support of this tolerance action it assumed that cyprodinil residues would be present on dry bulb onion, green onion and strawberry as well as on all foods covered by the proposed and established tolerances. Residues on dry bulb onion, green onion and strawberry were included because there were existing time-limited tolerances for these commodities. Therefore, re-establishing the dry bulb onion, green onion and strawberry tolerances will not change the most recent estimated aggregate risks resulting from use of cyprodinil, as discussed in the September 19, 2003 Federal Register (68 FR 54808, FRL-7326-4). Refer to the September 19, 2003 Federal Register document for a detailed discussion of the aggregate risk assessments and determination of safety. EPA relies upon those risk assessments and the findings made in the Federal Register document in support of this action. Below is a brief summary of the estimated aggregate risks from potential exposures to cyprodinil.

Acute dietary risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a one-day or single exposure. An acute Population Adjusted Dose (aPAD) of 1.5 mg/kg/day has been identified for females 13-49 years.

In conducting the acute dietary risk assessment EPA used the Dietary Exposure Evaluation Model software with the Food Commodity Intake Database (DEEM-FCID TM ), which incorporates food consumption data as reported by respondents in the USDA 1994-1996 and 1998 Nationwide Continuing Surveys of Food Intake by Individuals (CSFII), and accumulated exposure to the chemical for each commodity. The following assumptions were made for the acute exposure assessments: An unrefined, Tier 1 acute dietary exposure assessment (using tolerance-level residues, DEEM TM (version 7.76) default processing factors and assuming 100% crop treated for all proposed commodities) was conducted for the females 13-49 years old population subgroup.

The acute dietary exposure from food to cyprodinil will occupy 2% of the aPAD for the females 13-49 years old. In addition, there is potential for acute dietary exposure to cyprodinil in drinking water. After calculating drinking water levels of comparison (DWLOCs) and comparing them to the estimated environmental concentrations (EECs) for surface water and ground water, EPA does not expect the aggregate exposure to exceed 100% of the aPAD, as shown in Table 1 of this unit:

A chronic Population Adjusted Dose (cPAD) of 0.03 mg/kg/day has been identified for all population subgroups. In conducting the chronic dietary risk assessment EPA used DEEM-FCID TM , which incorporates food consumption data as reported by respondents in the USDA 1994-1996 and 1998 Nationwide Continuing Surveys of Food Intake by Individuals (CSFII), and accumulated exposure to the chemical for each commodity. The following assumptions were made for the chronic exposure assessment: An unrefined, Tier 1 chronic dietary exposure assessment (using tolerance-level residues, DEEM default processing factors, and assuming 100% crop treated for all proposed commodities) was conducted for the general U.S. population and various population subgroups.

EPA has concluded that exposure to cyprodinil from food will utilize 25% of the cPAD for the U.S. population, 65% of the cPAD for (the most highly exposed population subgroup) children 1-2 years old, 32% of the cPAD for all infants < 1 year old, and 21% of the cPAD for females 13-49 years old. Cyprodinil is not registered for use on any sites that would result in residential exposure. In addition, there is potential for chronic dietary exposure to cyprodinil in drinking water. After calculating DWLOCs and comparing them to the EECs for surface and ground water, EPA does not expect the aggregate exposure to exceed 100% of the cPAD, as shown in the following Table 2:

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:

• Crop production (NAICS code 111)

• Animal production (NAICS code 112)

• Food manufacturing (NAICS code 311)

• Pesticide manufacturing (NAICS code 32532)

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

In addition to using EDOCKET ( http://www.epa.gov/edocket/ ), you may access this Federal Register document electronically through the EPA Internet under the “ Federal Register ” listings at http://www.epa.gov/fedrgstr/ . A frequently updated electronic version of 40 CFR part 180 is available at E-CFR Beta Site Two at http://www.gpoaccess.gov/ecfr/ .

In the Federal Register of December 20, 2000 (65 FR 79834) (FRL-6751-9), EPA issued a notice pursuant to section 408(d)(3) of the FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide tolerance petition (PP 6E4758) by Firmenich Incorporated, P.O. 5880, Princeton, NJ 08543. The petition requested that 40 CFR 180.1001(c) and (e), re-designated as 40 CFR 180.910 and 40 CFR 180.930, respectively (69 FR 23113, April 28, 2004 (FRL-7335-4)), be amended by establishing an exemption from the requirement of a tolerance for residues of ethyl maltol (CAS Reg. No. 4940-11-8) when used as an inert ingredient. This notice included a summary of the petition prepared by the petitioner, Firmenich Incorporated. There were no comments received in response to the notice of filing.

In later correspondence with the Agency, the petitioner, Firmenich Incorporated, offered to accept a limitation for ethyl maltol of not more than 0.2% of the formulated product. The tolerance exemption established today includes that limitation.

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

EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. First, EPA determines the toxicity of pesticides. Second, EPA examines exposure to the pesticide through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings.

Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): Solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients.

Consistent with section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. The nature of the toxic effects caused by ethyl maltol are discussed in this unit.

The following table summarizes the toxicological aspects of ethyl maltol. Even though the studies which yielded the data were not conducted in accordance with the Agency guidelines, and lacked some experimental details, the studies appear to be well conducted. Thus, the results of these studies can be used for regulatory purposes. In addition to using the toxicity data, the Agency also conducted a Structure Activity Relationship (SAR) analysis for ethyl maltol. This analysis supports the conclusions suggested by the toxicity data, namely, that ethyl maltol poses a low concern for adverse effects on human health.

Toxicity for ethyl maltol was assessed, in part, by a process called SAR. In this process, the chemical's structural similarity to other chemicals (for which data are available) is used to determine toxicity. For human health, this process, can be used to assess absorption and metabolism, mutagenicity, carcinogenicity, developmental and reproductive effects, neurotoxicity, systemic effects, immunotoxicity, and sensitization and irritation. This is a qualitative assessment using terms such as good, not likely, poor, moderate, or high.

Ethyl maltol is not absorbed from the skin if it is not in solution, and moderately absorbed from the skin if it is in solution based on physio-chemical properties (pchem). It is absorbed from the lung and GI tract based on data from surrogate chemicals. There is an uncertain concern for mutagenicity. Overall, health concern is rated as low.

The Food and Drug Administration has classified ethyl maltol as GRAS (generally recognized as safe) for use as a direct food additive as a flavoring agent (21 CFR 172.515-Synthetic Flavoring Substances and Adjuvants). In 1970, the Joint Food and Agricultural Organization of the United Nations/World Health Organization (FAO/WHO) Expert Committee on Food Additives established a group ADI (Acceptable Daily Intake) of 0-2mg/kg-bodyweight (bw) for ethyl maltol ( http://www.inchem.org/documents/jecfa/jecmono/v048aje01.htm )

Ethyl maltol is a member of a class of chemicals known as flavor enhancers. It is almost completely absorbed from the gut and appears in the urine as gluconamide or sulfate within two hours. The toxicity data in the previous Table was used to assess the toxicity of ethyl maltol. The acute oral LD 50 values which ranged from 780 mg/kg and 1,270 mg/kg place ethyl maltol in Toxicity Category III. EPA categorizes acute toxicity as I, II, III, or IV, with Category IV being the Agency's lowest level of acute toxicity. Also, there were no effects observed on the skin of rabbits when ethyl maltol was used at a dose of 5,000 mg/kg.

The report from the structure activity team (SAT) cites an uncertain concern for mutagenicity. This uncertainty was based on positive dose-related activity against only one Salmonella strain (TA 100), but the mutagenic effects were not reproducible. Given the lack of reproducibility, ethyl maltol was classified as non-mutagenic in the Ames test.

The SAR assessment did not indicate any concerns for carcinogenicity, developmental or reproductive concerns. The available repeated dose toxicity studies have NOAELs that are equal to or greater than 200 mg/kg/day.

In examining aggregate exposure, FFDCA section 408 directs EPA to consider available information concerning exposures from the pesticide residue in food and all other non-occupational exposures, including drinking water from ground water or surface water and exposure through pesticide use in gardens, lawns, or buildings (residential and other indoor uses).

1. Food . Ethyl maltol has been used in foodstuffs as a flavoring agent since the 1950's. Ethyl maltol is estimated to have a per capita daily intake of 0.0045 mg/kg from use as a food additive ( http://www.inchem.org/documents/jecfa/jecmono/v048aje01.htm ). Using a 60 kg person the daily intake becomes 0.27 mg/day, based on ethyl maltol's use as a food additive. The use of ethyl maltol as an inert ingredient in a pesticide product, especially considering the limitation of no more than 0.2% of the formulated product, should not significantly increase this estimate.

2. Drinking water exposure . The SAT report states that migration of ethyl maltol to ground water is moderate to rapid. Ethyl maltol has an estimated water solubility of 1.5 to 24 grams/Liter (g/L), a volatilization half-life of 81 hours in rivers and 41 days in lakes, and biodegrades rapidly. Based on biodegradation models and on the SAT's professional judgement, ethyl maltol undergoes primary (partial) aerobic biodegradation in days to weeks, and is completely biodegraded in weeks. The biodegradability estimate and Henry's Law Constant suggest that the residence time of ethyl maltol in surface waters is controlled by the biodegradation rate and not the rate of volatilization. Ethyl maltol has the potential to be mobile in soil, but if released to aerobic soils its migration would be mitigated by biodegradation. If it enters anaerobic soils (as in a landfill leachate scenario) biodegradation would be expected to be somewhat slower but still relatively rapid. Therefore, significant concentrations of ethyl maltol are very unlikely in sources of drinking water.

Ethyl maltol is used as a flavor enhancer for cigarettes, antiseptics, and perfumes. Because use as a flavoring substance generally constitutes such a low percentage of the formulation exposure is likely to be minimal.

Section 408(b)(2)(D)(v) of the FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to the above chemical substances and any other substances. Ethyl maltol does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that this chemical substance has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see the policy statements released by EPA's Office of Pesticide Programs concerning common mechanism determinations and procedures for cumulating effects from substances found to have a common mechanism on EPA's website at http://www.epa.gov/pesticides/cumulative/ .

FFDCA section 408 provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data unless EPA concludes that a different margin of safety will be safe for infants and children. For ethyl maltol, based on the expected minimal oral toxicity, as demonstrated by toxicity studies with NOAELs greater than 200 mg/kg/day, the available toxicity data which indicates no significant treatment related effects on fertility, gestation, parturition, lactation, or fetal development, EPA has not used a safety factor analysis to assess the risk. For the same reasons a tenfold safety factor is unnecessary.

Based on its review and evaluation of the available data on toxicity and exposure, and considering the 0.2% limitation in the formulation offered by the petitioner, EPA finds that exempting ethyl maltol (CAS Reg. No. 4940-11-8) from the requirement of a tolerance will be safe for the general population including infants and children.

FQPA requires EPA to develop a screening program to determine whether certain substances, including all pesticide chemicals (both inert and active ingredients), may have an effect in humans that is similar to an effect produced by a naturally occurring estrogen, or such other endocrine effect. EPA has been working with interested stakeholders to develop a screening and testing program as well as a priority setting scheme. As the Agency proceeds with implementation of this program, further testing of products containing ethyl maltol for endocrine effects may be required.

An analytical method is not required for tolerance enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance.

There are no existing tolerance exemptions for ethyl maltol.

The Agency is not aware of any country requiring a tolerance for ethyl maltol nor have any CODEX Maximum Residue Levels (MRLs) been established for any food crops at this time.

Therefore, EPA is establishing a tolerance exemption for ethyl maltol (CAS Reg. No. 4940-11-8) with a limitation in the pesticide formulation of not more than 0.2%.

Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. Although the procedures in those regulations require some modification to reflect the amendments made to the FFDCA by the FQPA of 1996, EPA will continue to use those procedures, with appropriate adjustments, until the necessary modifications can be made. The new section 408(g) provides essentially the same process for persons to “object” to a regulation for an exemption from the requirement of a tolerance issued by EPA under new section 408(d), as was provided in the old FFDCA sections 408 and 409. However, the period for filing objections is now 60 days, rather than 30 days.

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number OPP-2005-0153 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before August 29, 2005.

1. Filing the request . Your objection must specify the specific provisions in the regulation that you object to, and the grounds for the objections (40 CFR 178.25). If a hearing is requested, the objections must include a statement of the factual issues(s) on which a hearing is requested, the requestor's contentions on such issues, and a summary of any evidence relied upon by the objector (40 CFR 178.27). Information submitted in connection with an objection or hearing request may be claimed confidential by marking any part or all of that information as CBI. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. A copy of the information that does not contain CBI must be submitted for inclusion in the public record. Information not marked confidential may be disclosed publicly by EPA without prior notice.

Mail your written request to: Office of the Hearing Clerk (1900L), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. You may also deliver your request to the Office of the Hearing Clerk in Suite 350, 1099 14th St., NW., Washington, DC 20005. The Office of the Hearing Clerk is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Office of the Hearing Clerk is (202) 564-6255.

2. Copies for the Docket . In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit XI.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in ADDRESSES . Mail your copies, identified by docket ID number OPP-2005-0153, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. In person or by courier, bring a copy to the location of the PIRIB described in ADDRESSES . You may also send an electronic copy of your request via e-mail to: opp-docket@epa.gov . Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

A request for a hearing will be granted if the Administrator determines that the material submitted shows the following: There is a genuine and substantial issue of fact; there is a reasonable possibility that available evidence identified by the requestor would, if established resolve one or more of such issues in favor of the requestor, taking into account uncontested claims or facts to the contrary; and resolution of the factual issues(s) in the manner sought by the requestor would be adequate to justify the action requested (40 CFR 178.32).

This final rule establishes an exemption from the tolerance requirement under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866 due to its lack of significance, this rule is not subject to Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq ., or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the exemption in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq .) do not apply. In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). For these same reasons, the Agency has determined that this rule does not have any “tribal implications” as described in Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000). Executive Order 13175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.” This rule will not have substantial direct effects on tribal governments, 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, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule.

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

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:

• Crop production (NAICS code 111)

• Animal production (NAICS code 112)

• Food manufacturing (NAICS code 311)

• Pesticide manufacturing (NAICS code 32532)

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT

In addition to using EDOCKET (http://www.epa.gov/edocket/) , you may access this Federal Register document electronically through the EPA Internet under the “ Federal Register ” listings at http://www.epa.gov/fedrgstr/ . A frequently updated electronic version of 40 CFR part 180 is available at E-CFR Beta Site Two at http://www.gpoaccess.gov/ecfr/ .

EPA published final rules in the Federal Register for each chemical/commodity listed. The initial issuance of these final rules announced that EPA, on its own initiative, under section 408 of the FFDCA, 21 U.S.C. 346a, as amended by the Food Quality Protection Act of 1996 (FQPA) (Public Law 104-170) was establishing time-limited tolerances.

EPA established the tolerances because section 408(l)(6) of the FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under FIFRA section 18. Such tolerances can be established without providing notice or time for public comment.

EPA received requests to extend the use of these chemicals for this year's growing season. After having reviewed these submissions, EPA concurs that emergency conditions exist. EPA assessed the potential risks presented by residues for each chemical/commodity. In doing so, EPA considered the safety standard in section 408(b)(2) of the FFDCA, and decided that the necessary tolerance under section 408(l)(6) of the FFDCA would be consistent with the safety standard and with FIFRA section 18.

The data and other relevant material have been evaluated and discussed in the final rule originally published to support these uses. Based on that data and information considered, the Agency reaffirms that extension of these time-limited tolerances will continue to meet the requirements of section 408(l)(6) of the FFDCA. Therefore, the time-limited tolerances are extended until the date listed. EPA will publish a document in the Federal Register to remove the revoked tolerances from the Code of Federal Regulations (CFR). Although these tolerances will expire and are revoked on the date listed, under section 408(l)(5) of the FFDCA, residues of the pesticide not in excess of the amounts specified in the tolerance remaining in or on the commodity after that date will not be unlawful, provided the residue is present as a result of an application or use of a pesticide at a time and in a manner that was lawful under FIFRA, the tolerance was in place at the time of the application, and the residue does not exceed the level that was authorized by the tolerance. EPA will take action to revoke these tolerances earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe.

Tolerances for the use of the following pesticide chemicals on specific commodities are being extended:

Bifenthrin . EPA has authorized under FIFRA section 18 the use of bifenthrin on sweet potatoes for control of beetles complex in North Carolina. This regulation extends a time-limited tolerance for residues of the insecticide bifenthrin ((2-methyl [1,1′biphenyl]-3-yl) methyl-3-(2-chloro-3,3,3,-trifluoro-1-propenyl)-2,2-dimethylcyclopropane carboxylate) in or on sweet potato, roots at 0.05 parts per million (ppm) for an additional three-year period. This tolerance will expire and is revoked on December 31, 2008. A time-limited tolerance was originally published in the Federal Register of September 27, 2001 (66 FR 49308) (FRL-6801-5), subsequently corrected by a technical amendment published in the Federal Register of September 3, 2003 (68 FR 52353)(FRL-7323-9).

Eucalyptus oil . EPA has authorized under FIFRA section 18 the use of eucalyptus oil in beehives for control of varroa mites in Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Iowa, Idaho, Illinois, Indiana, Kansas, Kentucky, Maine, Maryland, Massachusetts, Michigan, Missouri, Minnesota, Mississippi, North Carolina, Nebraska, New Jersey, New York, Oregon, Pennsylvania, Tennessee, Texas, Utah, Vermont, and Washington. This regulation extends a time-limited exemption from the requirement of a tolerance for residues of the biopesticide eucalyptus oil in or on honey and honeycomb for an additional 2-year period. This exemption from the requirement of a tolerance will expire and is revoked on June 30, 2007. A time-limited exemption from the requirement of a tolerance was originally published in the Federal Register of June 6, 2003 (68 FR 33882) (FRL-7308-1).

N-(4-fluorophenyl)-N-(1-methylethyl)-2-[[5-(trifluoromethyl)-1,3,4-thiadiazol-2-yl]oxy]acetamide . EPA has authorized under FIFRA section 18 the use of N-(4-fluorophenyl)-N-(1-methylethyl)-2-[[5-(trifluoromethyl)-1,3,4-thiadiazol-2-yl]oxy]acetamide on wheat and triticale for control of ryegrass in Idaho and Oregon. This regulation extends a time-limited tolerance for combined residues of the herbicide N-(4-fluorophenyl)-N-(1-methylethyl)-2-[[5-(trifluoromethyl)-1,3,4-thiadiazol-2-yl]oxy]acetamide and its metabolites containing the 4-fluoro-N-methylethyl benzenamine moiety in or on wheat grain at 1 part per million (ppm), wheat forage at 10 ppm, wheat hay at 2 ppm, wheat straw at 0.5 ppm, meat and fat of cattle, goats, horses, hogs, and sheep at 0.05 ppm, meat byproducts (other than kidney) of cattle, goats, horses, hogs, and sheep at 0.10 ppm and kidney of cattle, goats, horses, hogs, and sheep at 0.50 ppm for an additional two-year period. These tolerances will expire and are revoked on June 30, 2007. Time-limited tolerances were originally published in the Federal Register of August 6, 1999 (64 FR 42839) (FRL-6091-9).

Maneb . EPA has authorized under FIFRA section 18 the use of maneb on walnuts for control of bacterial blight in California. This regulation extends a time-limited tolerance for combined residues of the fungicide maneb (manganous ethylenebisdithiocarbamate) calculated as zinc ethylenebisdithiocarbamate, and its metabolite ethylenethiourea in or on walnuts at 0.05 ppm for an additional two-year period. This tolerance will expire and is revoked on December 31, 2007. A time-limited tolerance was originally published in the Federal Register of March 17, 1999 (64 FR 13097) (FRL-6067-9).

Myclobutanil . EPA has authorized under FIFRA section 18 the use of myclobutanil on peppers for control of powdery mildew in California. This regulation extends a time-limited tolerance for combined of the fungicide myclobutanil alpha-butyl-alpha-(4-chlorophenyl)-1H-1,2,4-triazole-1-propanenitrile and its alcohol metabolite (alpha-(3-hydroxybutyl)-alpha-(4-chlorophenyl)-1H-1,2,4-triazole-1-propanenitrile (free and bound) in or on pepper at 1.0 ppm for an additional 3-year period. This tolerance will expire and is revoked on June 30, 2008. A time-limited tolerance was originally published in the Federal Register of September 16, 1998 (63 FR 49472) (FRL-6025-1).

Pyriproxyfen . EPA has authorized under FIFRA section 18 the use of pyriproxyfen on succulent beans for control of whitefly in Florida and Georgia. This regulation extends a time-limited tolerance for combined of the insect grown regulator, pyriproxyfen 2-[1-methyl-2-(4- phenoxyphenoxy)ethoxy]pyridine in or on bean, succulent at 0.1 ppm for an additional 3-year period. This tolerance will expire and is revoked on June 30, 2008. A time-limited tolerance was originally published in the Federal Register of September 5, 2001 (66 FR 46390) (FRL-6798-6).

Tebuconazole . EPA has authorized under FIFRA section 18 the use of tebuconazole on barley and/or wheat for control of Fusarium head blight in Kentucky, Illinois, Montana, and South Dakota. This regulation extends time-limited tolerances for residues of the fungicide tebucon-azole (alpha-[2-(4-chlorophenyl)-ethyl]-alpha-(1,1-dimethylethyl)-1H-1,2,4-triazole-1-ethanol) in or on barley grain at 2.0 ppm, barley hay at 20.0 ppm, and barley straw at 20.0 ppm; wheat hay at 15.0 ppm and wheat straw at 2.0 ppm for an additional 3-year period. These tolerances will expire and are revoked on June 30, 2008. Time-limited tolerances were originally published in the Federal Register on June 20, 1997 (62 FR 33550) (FRL-5725-7).

Terbacil . EPA has authorized under FIFRA section 18 the use of terbacil on watermelon for control of broadleaf weeds in Delaware and Virginia. This regulation extends a time-limited tolerance for combined residues of the herbicide terbacil (3-tert-Butyl-5- chloro -6-methyluracil and its three metabolites 3-tert-butyl-5-chloro- 6-hydroxymethyluracil, 6-chloro-2, 3-dihydro-7-hydroxymethyl 3,3- dimethyl-5H-oxazolo (3,2-a) pyrimidin-5-one, and 6-chloro-2,3-dihydro- 3,3,7-trimethyl-5H-oxazolo (3,2-a) pyrimidin-5-one), calculated as terbacil in or on watermelon at 0.4 ppm for an additional 2-year period. This tolerance will expire and is revoked on June 30, 2007. A time-limited tolerance was originally published in the Federal Register of June 20, 1997 (62 FR 33557) (FRL-5718-7).

Thymol . EPA has authorized under FIFRA section 18 the use of thymol in beehives for control of varroa mites in Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Iowa, Idaho, Illinois, Indiana, Kansas, Kentucky, Maine, Maryland, Massachusetts, Michigan, Missouri, Minnesota, Mississippi, North Carolina, Nebraska, New Jersey, New York, Oregon, Pennsylvania, Tennessee, Texas, Utah, Vermont, and Washington. This regulation extends a time-limited exemption from the requirement of a tolerance for residues of the biopesticide thymol in or on honey and honeycomb for an additional 2-year period. This exemption from the requirement of a tolerance will expire and is revoked on June 30, 2007. A time-limited exemption from the requirement of a tolerance was originally published in the Federal Register of June 6, 2003 (68 FR 33882) (FRL-7308-1).

Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. Although the procedures in those regulations require some modification to reflect the amendments made to the FFDCA by the FQPA, EPA will continue to use those procedures, with appropriate adjustments, until the necessary modifications can be made. The new section 408(g) of the FFDCA provides essentially the same process for persons to “object” to a regulation for an exemption from the requirement of a tolerance issued by EPA under new section 408(d) of the FFDCA, as was provided in the old sections 408 and 409 of the FFDCA. However, the period for filing objections is now 60 days, rather than 30 days.

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number OPP-2005-0143 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before August 1, 2005.

1. Filing the request . Your objection must specify the specific provisions in the regulation that you object to, and the grounds for the objections (40 CFR 178.25). If a hearing is requested, the objections must include a statement of the factual issues(s) on which a hearing is requested, the requestor's contentions on such issues, and a summary of any evidence relied upon by the objector (40 CFR 178.27). Information submitted in connection with an objection or hearing request may be claimed confidential by marking any part or all of that information as CBI. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. A copy of the information that does not contain CBI must be submitted for inclusion in the public record. Information not marked confidential may be disclosed publicly by EPA without prior notice.

Mail your written request to: Office of the Hearing Clerk (1900L), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. You may also deliver your request to the Office of the Hearing Clerk in Suite 350, 1099 14th St., NW., Washington, DC 20005. The Office of the Hearing Clerk is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Office of the Hearing Clerk is (202) 564-6255.

2. Copies for the Docket . In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit III.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in ADDRESSES . Mail your copies, identified by docket ID number OPP-2005-0143, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. In person or by courier, bring a copy to the location of the PIRIB described in ADDRESSES . You may also send an electronic copy of your request via e-mail to: opp-docket@epa.gov . Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 file format or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

A request for a hearing will be granted if the Administrator determines that the material submitted shows the following: There is a genuine and substantial issue of fact; there is a reasonable possibility that available evidence identified by the requestor would, if established resolve one or more of such issues in favor of the requestor, taking into account uncontested claims or facts to the contrary; and resolution of the factual issues(s) in the manner sought by the requestor would be adequate to justify the action requested (40 CFR 178.32).

This final rule establishes time-limited tolerances under section 408 of the FFDCA. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866 due to its lack of significance, this rule is not subject to Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq ., or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Since tolerances and exemptions that are established under section 408(l)(6) of the FFDCA in response to an exemption under FIFRA section 18, such as the tolerances in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq .) do not apply. In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of the FFDCA. For these same reasons, the Agency has determined that this rule does not have any “tribal implications” as described in Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000). Executive Order 13175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.” This rule will not have substantial direct effects on tribal governments, 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, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule.

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

In the Federal Register of Tuesday, March 15, 2005 (70 FR 12632), EPA proposed to correct a typographical error in the coordinates for the Shallow Water site, designated as an ocean dredged material disposal site by EPA on Wednesday, March 2, 2005 (70 FR 10041)—EPA's final rule to de-designate and to designate ocean dredged material disposal sites off the mouth of the Columbia River near the states of Oregon and Washington. The typographical error was printed in the Overall Site Coordinates for the Shallow Water site as published on page 10055 in Federal Register . EPA did not receive any comments on the proposed correction. Today, EPA finalizes the correction of the typographical error.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the Agency must determine whether the regulatory action is “significant” and, therefore, subject to OMB review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may:

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

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

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

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

It has been determined that this final rule, which is a technical correction, is not a “significant regulatory action” under the terms of Executive Order 12866 and is, therefore, not subject to OMB review.

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

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

Title II of the Unfunded Mandates Reform Act (UMRA) of 1995 (Pub. L. 104-4) establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any year. Before promulgating an EPA rule for which a written statement is needed, Section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why the alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA, a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. This final rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local or tribal governments or the private sector. It imposes no new enforceable duty on any State, local or tribal government or the private sector. EPA has also determined that this final rule contains no regulatory requirements that might significantly or uniquely affect small government entities. Thus, the requirements of section 203 of the UMRA do not apply to this rule.

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

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among various levels of government.” This final rule, a technical correction, does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among various levels of government, as specified in Executive Order 13132. Thus, Executive Order 13132 does not apply to this rule.

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

Executive Order 13045 applies to any rule that: (1) is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This final rule is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866 and because the Agency does not have reason to believe the environmental health or safety risks addressed by this final action, a technical correction, present a disproportionate risk to children.

This rule is not subject to Executive Order 13211, “Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a “significant regulatory action” as defined under Executive Order 12866.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 12(d) (15 U.S.C. 272) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g. , materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus bodies. The NTTAA directs EPA to provide Congress, through the OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This final rule is a technical correction and does not involve technical standards.

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

You may be potentially affected by this proposed rule if you manufacture, process, or otherwise use methyl ethyl ketone. Potentially affected categories and entities may include, but are not limited to:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in the table could also be affected. To determine whether your facility would be affected by this action, you should carefully examine the applicability criteria in part 372 subpart B of title 40 of the Code of Federal Regulations. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

In the Federal Register of March 30, 1998 (63 FR 15195), EPA issued a Denial of Petition entitled “Methyl Ethyl Ketone; Toxic Chemical Release Reporting; Community Right-to-Know.” The denial was in response to a petition from the Ketones Panel of the Chemical Manufacturers Association (CMA) that requested the deletion of methyl ethyl ketone from the list of chemicals reportable under EPCRA section 313 and PPA section 6607.

The American Chemistry Council (formerly CMA) filed suit challenging EPA's decision in the United States District Court for the District of Columbia. Subsequently, the court granted summary judgment in favor of EPA. See American Chemistry Council v. Whitman, 309 F.Supp. 2d 111 (D.D.C. 2004). On appeal, the Court of Appeals for the District of Columbia Circuit reversed the lower court's decision, vacating the lower court's decision, and directing the district court to issue an order to “direct EPA to delete MEK from the TRI.” 406 F.3d 738, 742 (D.C. Cir. 2005). The Circuit Court issued its mandate on June 13, 2005 (Ref. 1).

Accordingly, EPA is issuing this final rule revising the EPCRA section 313 list of reportable chemicals in 40 CFR 372.65 to delete methyl ethyl ketone. Under 5 U.S.C. 553(b)(3)(A), the notice-and-comment requirements of the Federal Administrative Procedure Act (5 U.S.C. 551-706) do not apply where the Agency “for good cause finds . . . that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” Because this action is being taken merely to comply with the court's direction and because the court's order left EPA no discretion in implementing that order EPA hereby finds that notice and comment on this action are unnecessary.

This action is effective immediately upon publication in the Federal Register . Under 5 U.S.C. 553(d)(3), 30-day advance notice of a rule is not required where the Agency provides otherwise for good cause. EPA finds that good cause for an immediate effective date exists in this case, because as explained below, there would be no purpose in requiring facilities to file reports for a chemical that does not satisfy any of the criteria of EPCRA section 313(d)(2)(A)-(C).

This action becomes effective June 30, 2005. Since the court order removing MEK from the TRI was issued before July 1, 2005 the last year in which facilities had to file a TRI report for MEK was 2004, covering releases and other activities that occurred in 2003. EPCRA section 313(d)(4) provides that “[a]ny revision” to the section 313 list of toxic chemicals shall take effect on a delayed basis. EPA interprets this delayed effective date provision to apply only to actions that add chemicals to the section 313 list. For deletions, EPA may, in its discretion, make such actions immediately effective. An immediate effective date is authorized, in these circumstances, under 5 U.S.C. 553(d)(1) because a deletion from the section 313 list relieves a regulatory restriction. EPA believes that where a chemical does not satisfy any of the criteria of section 313(d)(2)(A)(C), no purpose is served by requiring facilities to collect data or file TRI reports for that chemical, or, therefore, by leaving that chemical on the section 313 list for any additional period of time. This construction of section 313(d)(4) is consistent with previous rules deleting chemicals from the section 313 list. For further discussion of the rationale for immediate effective dates for EPCRA section 313 delistings, see 59 FR 33205 (June 28, 1994).

1. American Chemistry Council v. Johnson , No. 04-5189, (DC Cir. June 13, 2005).

This rule is not a significant regulatory action, as defined under EO 12866, and therefore does not require review by the Office of Management and Budget (OMB) under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993), or Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). It also does not meet the requirements for review under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4), Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999), Executive Order 13175, entitled Consultation and Coordination With Indian Tribal Governments (65 FR 67249, November 9, 2000), Executive Order 13211, entitled Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001), or Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994). In addition, this rule does not impose any impact on small entities and thus does not require preparation of a regulatory flexibility analysis under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ).

The deletion of methyl ethyl ketone from the EPCRA section 313 list will reduce the overall reporting and recordkeeping burden estimate provided for EPCRA section 313, but this action does not require any review or approval by OMB under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. until EPA decides to subtract the total burden eliminated by today's action from the EPCRA section 313 overall burden approved by OMB. At some point in the future, EPA will determine the total EPCRA section 313 burden associated with the deletion of methyl ethyl ketone, and will complete the required Information Collection Worksheet to adjust the total EPCRA section 313 estimate. The reporting and recordkeeping burdens associated with EPCRA section 313 are approved by OMB under OMB No. 2070-0093 (EPCRA section 313 base program and Form R, EPA ICR No. 1363) and under OMB No. 2070-0145 (Form A, EPA ICR No. 1704). The current public reporting burden for EPCRA section 313 is estimated to be 34.2 hours for a Form R submitter and 20.6 hours for a Form A submitter. These estimates include the time needed for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. For reporting year 2003 there were 1,515 Form Rs submitted for methyl ethyl ketone and 108 Form As submitted.

Pursuant to the Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . However, section 808 of that Act provides that any rule for which the issuing agency for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rule) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest, shall take effect at such time as the agency promulgating the rule determines (5 U.S.C. 808(2)). As stated previously, EPA has made such a good cause finding, including the reasons therefore, and established an effective date of June 30, 2005. This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

I. Background

We have identified technical errors and omissions that appeared in the interim final rule with comment period entitled “Medicare Program: Changes to the Medicare Claims Appeal Procedures.” (FR Doc. 05-4062) ( See 70 FR 11420, March 8, 2005.) In this correcting amendment, we are correcting these technical errors and omissions.

On page 11436 of the preamble, we identified decisions regarding the timely submission of claims as not being initial determinations. We attempted to convey that this was true whether a provider or supplier failed to submit a timely claim for its own purposes or at the request of a beneficiary or the beneficiary's subrogee. However, we inadvertently omitted the word “timely” from our discussion of the submission of a claim by a provider or supplier for its own purposes.

On pages 11456 through 11457, we discussed the requirement that administrative law judge (ALJ) hearings be conducted by videoteleconferencing (VTC) (if the technology is available and there are no special or extraordinary circumstances that would make a VTC hearing inappropriate). We also indicated, however, that a party could request an in-person hearing that the ALJ, with the concurrence of the Managing Field Office ALJ, would grant upon a finding of good cause.

The interim final rule generally requires that an ALJ conduct a hearing and render a decision within 90 days from the date the request for hearing is received. However, if the ALJ grants a party an in-person hearing upon a finding of good cause, then that 90-day time frame requirement is waived.

In the interim final rule, we inadvertently stated that the request by a party for an in-person hearing would result in a waiver of the 90-day hearing and decision making time frame requirement. Therefore, we clarify that a request by a party for an in-person hearing does not relieve the ALJ of the 90-day hearing and decision making time frame requirement. Rather, waiver of the 90-day hearing and decision making time frame requirement results only when an ALJ grants the request for an in-person hearing. In addition, we clarify that any party, not just the appellant, can object to the type of hearing scheduled by an ALJ and request an in-person hearing.

In § 405.1012(a), we provide that CMS or its contractor, including a qualified independent contractor (QIC), may be a party to an ALJ hearing. On page 11461 of the preamble, we say that it is appropriate “to permit discovery when an ALJ hearing is adversarial (that is, whenever CMS or its contractor is a party to an ALJ hearing).” Later, in the same response on pages 11461 through 11462, in the second column, when discussing how and when the discovery provisions apply, we refer only to CMS electing to participate as a party. To correct the inconsistency in the discussion of this issue, we clarify here our intention to permit limited discovery not only when CMS elects to participate as a party to a hearing, but also when a CMS contractor elects to participate as a party to an ALJ hearing. We also make a similar correction to the text of the regulations at § 405.1016(d) and § 405.1037(a)(1).

1. On page 11436, in the first column, line 17, in the first full paragraph, we inserted the word “timely” after the phrase “submit a claim”.

2. In the third column of page 11456, in line 2 of the first full response, the word “appellant” is replaced with the word “party”.

3. On page 11457, in the first column, on line 1, the word “granted” is inserted before “request”.

4. On page 11461, in the second column, on line 35, in the first full response, the words “or its contractor” are inserted after “CMS”.

5. On page 11461, in the third column, in lines 25, 30, 57, 61, 66, and 68 the words “or its contractor” are inserted after “CMS”.

6. On page 11462, in the first column, in lines 3, 4, 47, and 53 the words “or its contractor” are inserted after “CMS”.

In the interim final rule, we made technical omissions in § 405.926, § 405.980, § 405.990, § 405.1020, and § 405.1102. We also made typographical and editing errors in § 405.980, § 405.986, § 405.990, § 405.1016, § 405.1018, § 405.1020, § 405.1037, § 405.1042, § 405.1052, § 405.1104, § 405.1112, and § 405.1136. We are reflecting these corrections in section D of this correcting amendment.

Section 405.912 contains the new provisions regarding assignment of appeal rights. In § 405.912(g) and § 405.912(g)(1), we incorrectly referred to the “assignee” as the “assignor” and vice versa. We are reflecting these corrections in section D of this correcting amendment.

As we indicated in section A of this correcting amendment, we inadvertently omitted the word “timely” when we stated that determinations regarding whether a provider or supplier submitted a claim timely either for its own purposes or at the request of a beneficiary or the beneficiary's subrogee are not initial determinations. The corresponding correction to the regulation text at § 405.926(n) is made in section D of this correcting amendment.

In the interim final rule, we state that submitting evidence after an appeal is filed may result in a 14-day extension of the decision-making time frame. Although this 14-day extension applies automatically, adjudicators are not required to extend the decision-making time frame by the full 14 days. In the regulation text, we intended to convey this point in § 405.946(b), § 405.950 and § 405.970 by stating that the decision-making time frame is extended “by up to 14 days” each time evidence is submitted after an appeal is filed. At § 405.946(b) and § 405.950(b)(3), however, we inadvertently left out the words “up to”. We have corrected this omission in section D of this correcting amendment.

Paragraph (a) of § 405.970 states that the QIC will transmit to the parties a written notice of “(1) The reconsideration; (2) Its inability to complete its review within 60 days in accordance with paragraphs (c) through (e) of this section; or (3) Dismissal.” Paragraph (c)(2), however, states that notice of the QIC's inability to complete review is mailed only to the appellant. For reasons of consistency and to decrease ambiguity, we correct this error in section D of the correcting amendment.

On page 11450 of the preamble, we stated the general rule that a remedial action taken by an appeals adjudicator to change a final determination or decision is a reopening “even though the determination or decision may have been correct based upon the evidence of record.” In the corresponding regulation text at § 405.980(a)(1), our use of the word “was”, rather than the phrase “may have been” seems to contradict the preamble language. To ensure that the preamble and regulation text are consistent, this error is corrected in section D of this correcting amendment.

In paragraph (a)(4) of § 405.980, we inadvertently stated that adjudicators are prohibited from reopening a claim at issue until all appeal rights are exhausted. We meant to state that adjudicators are prohibited from reopening issues within a claim, if those issues are on appeal. We correct this statement in section D of this correcting amendment.

Also in § 405.980, in paragraphs (d)(2) and (e)(2), we indicated that only an ALJ can reopen an ALJ decision. These provisions, as they appear in the interim final rule, seem to contradict the policy established earlier at § 405.980(a)(iv), which states that the MAC may reopen its decision, as well as any hearing decision issued by an ALJ. This inconsistency is corrected in section D of this rule.

The good cause standard for reopening initial determinations is defined in § 405.986. As a result of an editing error, we included paragraph (d), a provision that identifies a type of determination that is not a reopening. This provision is actually part of paragraph (a)(6) of § 405.980. This editing error is corrected in section D by deleting paragraph (d) from § 405.986 and inserting it into § 405.980(a)(6).

In § 405.1014(b)(2), we stated that the proper filing location for ALJ hearing requests is with the entity specified in the qualified independent contractor's reconsideration. However, in § 405.1046(d), we incorrectly referred to the ALJ hearing office as the proper filing location for ALJ hearing requests. Additionally, in § 405.1106, we incorrectly identified two filing locations for appeals to the Medicare Appeals Council (MAC). We are correcting these errors in section D of this correcting amendment.

In the interim final rule, appellants are permitted to request extensions to the filing deadlines. We intended to state that adjudicators could grant these extensions if appellants provided good cause for extending the deadline. To clarify this policy, we are revising § 405.1014(c)(4) and § 405.1016(b) to state that an “ALJ” rather than an “ALJ hearing office” may grant a request to extend the filing deadline.

ALJs are required to provide notice of a hearing to a number of entities, including all parties to the reconsideration. This is the policy we intended to convey in § 405.1020(c)(1), but the language we used in the interim final rule (that is, “participated in any of the determinations in paragraphs (c) through (i) of this section”) is not sufficiently clear. Therefore, we are revising this section to clarify any ambiguities regarding this requirement and to ensure that hearing notices are issued to the appropriate entities.

Section 405.1028 discusses the pre-hearing review process for evidence submitted to the administrative law judge (ALJ). Although the heading for this section reads “Prehearing case review of evidence submitted to the ALJ by the appellant”, this section discusses evidence submitted by certain other parties. To ensure that the heading properly reflects the content of the section, we are correcting this error in section D of this correcting amendment.

In drafting the interim final rule, we made many revisions to the regulation text, including renumbering certain provisions. When we renumbered sections of the regulation, our intent was to also update any corresponding cross-references to reflect the new numbering scheme. In § 405.1052(a)(4) and § 405.1052(a)(5), however, we inadvertently failed to update the cross-references to reflect the new numbering scheme. Therefore, we are correcting these errors in section D of this correcting amendment.

The binding authority of national coverage determinations (NCDs) is described in § 405.1060. Here, we stated that NCDs are “binding on all Medicare contractors, including QIOs, QICs, Medicare Advantage Organizations, Prescription Drug Plans and their sponsors, HMOs, CMPs, HCPPs, ALJs, and the MAC.” We failed to note, however, that fiscal intermediaries and carriers are also bound by NCDs and further, that some of the entities listed are not subject to all NCDs. We correct this statement in section D of this correcting amendment by revising paragraph (a)(4) to make NCDs binding on fiscal intermediaries, carriers, QIOs, QICs, ALJs, and the MAC.

In the interim final rule, we stated a longstanding policy regarding the calculation of the receipt date of appeal notices; that is, receipt is presumed to be 5 days after the date of the notice, unless there is evidence to the contrary. In this same section, we also established the related policy that an appeal is considered filed on the date that it is received by the appropriate entity. Our intention was to restate these policies in each section where we established the filing deadlines. However, we inadvertently omitted some or all of this information from § 405.974(b), § 405.1002(a), § 405.1004(a), and § 405.1102(a). We are correcting these omissions in Section D of this correcting amendment.

In the interim final rule, we also made a single revision to part 401 regarding the applicability of CMS Rulings. In our revision, we inadvertently failed to encompass the effect of CMS Rulings on matters other than Medicare Part A and Part B. To correct this error, we have removed the specific references to Medicare Part A and Medicare Part B.

This is a summary of the Commission's Order in CG Docket No. 02-278, FCC 05-132, adopted on June 27, 2005 and released on June 27, 2005. The full text of this document is available at the Commission's Web site http://www.fcc.gov on the Electronic Comment Filing System and for public inspection and copying during regular business hours in the FCC Reference Information Center, Room CY-A257, 445 12th Street, SW., Washington, DC 20554. The complete text of the decision may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc. (BCPA), Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. Customers may contact BCPI, Inc. at its Web site: http://www.bcpiweb.com or call 1-800-378-3160. To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice) or (202) 418-0432 (TTY). The Order can also be downloaded in Word and Portable Document Format (PDF) at http://www.fcc.gov/cgb .

On July 3, 2003, the Commission revised the unsolicited facsimile advertising requirements under the Telephone Consumer Protection Act of 1991 (TCPA). On August 18, 2003, the Commission issued an Order on Reconsideration (68 FR 50978, August 25, 2003) that delayed until January 1, 2005, the effective date of these amended requirements. On September 15, 2004, the Commission adopted an Order (69 FR 62816, October 28, 2004) further extending the stay of the effective date of the requirements through June 30, 2005. On April 15, 2005, the Fax Ban Coalition (Coalition) filed a petition urging the Commission to further delay the effective date of the revised rules governing unsolicited facsimile advertisements through December 31, 2005. The Coalition maintains that a further delay is warranted to avoid irreparable injury to the members of the Coalition and negative impact on the economy. The Coalition also argues that delay is important while Congress considers legislation to amend the TCPA and the Commission considers petitions for reconsideration and requests for clarification.

We now further delay, until January 9, 2006, the effective date of the determination that an established business relationship will no longer be sufficient to show that an individual or business has given express permission to receive unsolicited facsimile advertisements, as well as the amended unsolicited facsimile provisions at 47 CFR 64.1200(a)(3)(i). Section 64.1200(a)(3)(i), as amended, requires the sender of a facsimile advertisement to first obtain from the recipient a signed, written statement that includes the facsimile number to which any advertisements may be sent and clearly indicates the recipient's consent to receive such facsimile advertisements from the sender. In light of the on-going developments in Congress and pending resolution of the petitions for reconsideration and clarification of the Commission's facsimile advertising rules, we believe the public interest would best be served by delaying the effective date of the written consent requirement. This delay will provide the Commission requisite time to address the petitions for reconsideration filed on these issues. For these same reasons, until January 9, 2006, the 18-month limitation on the duration of the established business relationship based on purchases and transactions and the three-month limitation on applications and inquiries will not apply to the transmission of facsimile advertisements.

Pursuant to Sections 1-4, 227, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151-154, 227, and 303(r), the Order in CG Docket No. 02-278 is adopted and that the Report and Order, FCC 03-153, is modified as set forth herein.

The Fax Ban Coalition's Petition for Further Extension of Stay is granted to the extent discussed herein.

The effective date for: (1) The Commission's determination that an established business relationship will no longer be sufficient to show that an individual or business has given their express permission to receive unsolicited facsimile advertisements; (2) the 18-month and three month limitations on the duration of the established business relationship as applied to the sending of facsimile advertisements as described above; and (3) the requirement that the sender of a facsimile advertisement first obtain the recipient's express permission in writing, as codified at 47 CFR 64.1200(a)(3)(i), IS January 9, 2006, and that the Order is effective upon publication in the Federal Register .

The Commission will not send a copy of the Order pursuant to Congressional Review Act, see 5 U.S.C. 801(a)(1)(A) because the adopted rules are rules of particular applicability.

When the Standard was amended in February 1996 (61 FR 5520) only the fundamental requirement at 9904-40 (b)(1) was changed to reflect the increase in the capitalization criteria from $1,500 to $5,000. However, corresponding changes were not made to the Illustrations in the Standard. This document makes the necessary technical corrections to Illustrations at 9904-60.

Federal Motor Vehicle Safety Standard No. 105, Hydraulic and electric brake systems , sets forth minimum performance requirements for a vehicle's service and parking brake systems. Originally, the standard applied exclusively to passenger cars with hydraulic brake systems. 1 Over the years, the agency has published several rulemaking actions on FMVSS No. 105. 2 Among other actions, on January 16, 1976, the agency extended the standard's service and parking brake requirements to school buses with hydraulic service brake systems (41 FR 2391). On January 2, 1981 (46 FR 55), NHTSA published a final rule extending Standard No. 105's parking brake requirements to multipurpose passenger vehicles, trucks, and buses with a GVWR of 4,536 kilograms (10,000 pounds) or less. Among other things, the January 2, 1981 final rule required parking brakes on multipurpose passenger vehicles, trucks, and buses with a GVWR of 4,536 kilograms (10,000 pounds) or less to hold the vehicle stationary, in both forward and reverse directions, for five minutes on a 30 percent grade. In response to three petitions for reconsideration, the agency decided to change the gradient requirement for parking brakes on these vehicles from 30 percent to 20 percent (46 FR 61887, Dec. 21, 1981). Later, the agency established FMVSS No. 135, which originally applied to passenger cars only. In a final rule of September 30, 1997 (62 FR 51064), NHTSA extended the applicability of FMVSS No. 135 to multipurpose passenger vehicles, trucks, and buses with gross vehicle weight ratings (GVWR) of 3,500 kilograms (7,716 pounds) or less. These vehicles were previously regulated under FMVSS No. 105.

On October 30, 2002 (67 FR 66098), NHTSA published a notice of proposed rulemaking to amend FMVSS No. 105 to extend the current minimum performance requirements and associated test procedures for parking brake systems to all vehicles with gross vehicle weight ratings (GVWR) greater than 4,536 kilograms (10,000 pounds). In the NPRM, NHTSA explained the safety need for the rule, and discussed the costs and safety benefits that would result from the rule.

In explaining the safety need for the rule, the agency stated its belief that parking brakes are an important operational safety feature and tentatively concluded that it is in the interest of safety to require that all vehicles be equipped with parking brakes that comply with Federal requirements. When properly engaged, parking brakes can prevent driverless roll-away events, which can result in collisions, injuries, and fatalities. A review of the agency's Fatality Analysis Reporting System (FARS) database indicated that a total of three to five fatal vehicle roll-away events involving large, hydraulically-braked, non-school bus vehicles occurred between 1991 and 1999. Additionally, during that same period, there were annually about 574 crashes with 82 injured people resulting from roll-away, heavy duty trucks, according to data from the General Estimates System (GES). The GES data are not sufficiently detailed to determine which of the vehicles were hydraulically-braked and which were air-braked, nor could the data be used to determine if the vehicles were parked prior to the roll-away incident. Therefore, these figures likely represented the upper bound of the number of crashes and injuries caused by the rolling away, due to parking brake problems, of parked, heavy duty trucks and buses equipped with hydraulic brakes.

Many of the driverless roll-away events may have been caused by misapplication or non-use of the parking brake. Requiring all heavy vehicles to meet the same parking brake performance requirements would not affect the non-use problem; however, it might increase the likelihood that operators of these vehicles (particularly fleet drivers who must operate a large number of different heavy vehicles) would be better able to engage their vehicle's parking brake fully because the force required to apply the parking brake would be standardized. This might reduce the incidence of parking brake misapplication. In addition, NHTSA stated its belief that requiring that all heavy vehicles remain stationary with the parking brake fully engaged, in both forward and reverse directions, when parked on a 20 percent grade, should prevent the occurrence of driverless roll-away events due to parking brake failure on most roads in the United States because most U.S. roads have less than a 20 percent grade. NHTSA tentatively concluded that requiring all vehicles to which Standard No. 105 applies to have parking brakes meeting the standard's effort limit and gradient requirements should decrease the likelihood of driverless roll-away events and, therefore, lead to modest collision, injury, and fatality reduction benefits.

As explained more fully below, in the section on costs and benefits, NHTSA stated its belief that most, if not all, heavy vehicles are already manufactured with parking brakes designed to meet Standard No. 105's requirements. However, requiring manufacturers to certify the performance of the parking brakes on these heavy vehicles would provide added assurance that they actually meet the standard's requirements. It would also guard against the possibility of a decrease in performance of these parking brakes due to future truck chassis design changes.

NHTSA noted that Paragraph S5.2 of the standard currently requires that all heavy school buses be manufactured with a parking brake of a friction type with a solely mechanical means to retain engagement. Such parking brakes are required to meet the standard's effort limit and gradient requirements, found in paragraphs S5.2(b) and S5.2.3, respectively. Paragraph S5.2(b) requires that the parking brake be capable of being engaged fully with a force applied to the control of not more than 150 pounds for a foot-operated system and not more than 125 pounds for a hand-operated system. Paragraph S5.2.3 requires that the parking brake system be capable of holding the vehicle stationary for five minutes, in both forward and reverse directions, on a 20 percent grade.

NHTSA believes that it is reasonable to assume that operators of heavy school buses and other heavy vehicles are of similar size and strength. In addition, the agency stated its belief that heavy school buses and other heavy vehicles are parked in similar environments. Therefore, the agency tentatively concluded that it is appropriate to apply the same effort limit and gradient requirements (and associated test procedures) to these vehicles as are currently applied to heavy school buses.

In late 2002, several heavy vehicle manufacturers informed NHTSA that, among other things, parking brake systems for trucks and buses with GVWRs greater than 4,536 kilograms (10,000 pounds) are already designed to meet the FMVSS No. 105 requirements for school buses over 4,536 kilograms. Based on the manufacturer's views, NHTSA estimated that the cost of requiring all manufacturers of non-school buses and trucks with GVWRs greater than 4,536 kilograms (10,000 pounds) to meet the standard's parking brake requirements would be minimal (less than $10 per vehicle) because few, if any, modifications to the already existing parking brakes would be necessary to bring those brakes into compliance with the standard. NHTSA further stated that the cost of conducting the parking brake compliance test should not be significant when compared to the total cost of FMVSS No. 105 compliance testing. The agency stated its belief that most test facilities already have the 20 percent grade slope that was proposed in the NPRM, and that the proposed test procedure is straightforward and not time consuming. Accordingly, the agency stated that it did not anticipate that the cost of certifying compliance to the proposed requirements would be large, and solicited comments.

Given the likelihood that most vehicles with a GVWR over 4,536 kilograms (10,000 pounds) are already equipped with a parking brake system that meets the performance requirements of S5.2 and S5.2.3, NHTSA stated that it anticipated only marginal safety benefits from formally extending these requirements. Nevertheless, to the extent that any vehicles with a GVWR over 10,000 pounds do not already comply with these requirements, the agency does expect that the extension of the parking brake effort limit and gradient requirements to such vehicles would reduce the number of collisions, injuries, and fatalities due to driverless roll-away events.

NHTSA stated that while the proposed changes are not likely to have any effect on the non-use problem, the standardization of parking brake effort limit requirements for all heavy vehicles may reduce the incidence of misapplication by making it easier for operators of these vehicles to fully engage the parking brake. In addition, requiring all hydraulically-braked heavy vehicles to have parking brakes that meet the gradient requirement should decrease the likelihood of parking brake failure on most U.S. roads. For these reasons, the agency stated that it anticipated modest collision, injury, and fatality reduction benefits from extending Standard No. 105's parking brake requirements to all hydraulically-braked vehicles with GVWRs greater than 4,536 kilograms (10,000 pounds).

In the NPRM, NHTSA also addressed several other Standard No. 105 issues. NHTSA proposed to change the language in the application paragraph of the standard (S3. Application ) to reflect the inapplicability of the standard's requirements to hydraulically-braked vehicles with a GVWR of 3,500 kilograms (7,716 pounds) or less. Standard No. 105 used to apply to these vehicles. However, Standard No. 135 now applies instead.

In addition, on June 10, 2002, the agency received a petition for rulemaking from Mr. James E. Stocke of Ann Arbor, Michigan, requesting that NHTSA update a reference to the Society of Automotive Engineers' (SAE) Recommended Practice for Moving Barrier Collision Tests, J972 (SAE J972). A portion of an older (November 1966) version of SAE J972 is referenced in Standard No. 105, paragraph S7.19, as part of the parking brake test procedures for passenger cars and school buses with a GVWR of 4,536 kilograms (10,000 pounds) or less. Although there are no changes to the description of the rigid moving barrier in the more recent (May 2000) version of the document, the “Barrier” paragraph has been re-designated as paragraph 4.3 instead of paragraph 3.3, its designation in the November 1966 version of the document.

NHTSA noted that the information in the updated reference is substantively identical to the information in the original reference. Accordingly, NHTSA granted Mr. Stocke's petition and proposed to amend paragraph S7.19 to update the reference to the May 2000 version of SAE J972.

In response to the NPRM, NHTSA received comments from the following: Advocates for Highway and Auto Safety; ArvinMeritor; Heavy Duty Brake Manufacturers Council (HDBMC); Richard H. Klein, P.E.; National Association of Trailer Manufacturers (NATM); Recreational Vehicle Industry Association (RVIA); and Truck Manufacturers Association (TMA).

While commenters raised a number of issues, those commenting on the basic question of whether FMVSS No. 105's parking brake requirements should be extended to all multipurpose passenger vehicles (MPVs), buses and trucks with gross vehicle weight ratings (GVWR) greater than 10,000 pounds (4,536 kilograms) (equipped with hydraulic or electric brakes), supported the extension. TMA, indicating that it represents all of the major North American manufacturers of medium and heavy duty trucks, stated that, in general, its member companies support the agency's proposal. ArvinMeritor, which manufactures foundation brakes for both heavy and medium duty commercial vehicles, stated that, in general, it supports the proposed rule and that the rule will promote improvements of motor vehicles to provide safer vehicles on the highways.

A number of commenters sought clarification of the vehicle types to which the rule would apply (i.e., would the proposed rule apply only to MPVs, buses, and trucks over 4,536 kilograms (10,000 pounds GVWR) or also to trailers and motorcycles. One commenter questioned NHTSA's discussion of “Costs and Benefits,” based on NHTSA's belief that change would be minimal. Advocates for Highway and Auto Safety, and ArvinMeritor raised unique issues.

In the sections which follow, NHTSA identifies and discusses the specific issues raised by the commenters.

Several of the manufacturers asked for clarification of whether the new parking brake requirements apply to all vehicles over 4,536 kilograms (10,000 pounds) gross vehicle weight rating (GVWR) or only to multipurpose passenger vehicles (MPVs), buses and trucks over 4,536 kilograms GVWR. Several commenters including Mr. Klein stated their beliefs that although not explicitly stated in the NPRM, the intent of the proposal was to apply the new requirements to MPVs, non-school buses and trucks over 4,536 kg, but not to trailers over 4,536 kg (or to motorcycles). The NATM and RVIA expressed their beliefs that the NPRM was not intended to apply to trailers.

NHTSA agrees that it was the intent of the agency to apply the NPRM only to MPVs, non-school buses, and trucks over 4,536 kg. We note that the agency has never intended to apply FMVSS No. 105 to trailers, including light trailers, or to motorcycles.

In reviewing this issue, we found that the existing application section of FMVSS No. 105 states that the standard “applies to hydraulically-braked vehicles with a GVWR greater than 3,500 kilograms (7,716 pounds).” The reference to “hydraulically braked vehicles” is overbroad and is in error.

This particular language was included in the standard in a final rule published in the Federal Register (62 FR 51064) on September 30, 1997. This rule extended the requirements of FMVSS No. 135, which applied at that time only to passenger cars, to trucks, buses, and MPVs with a GVWR of 3,500 kilograms (7,716 pounds) or less. The amendment to FMVSS No. 105 was a conforming amendment to remove these vehicles from its coverage once they were covered by FMVSS No. 135, and was not intended to extend the coverage of FMVSS No. 105 to trailers. The revised application section should have referred to multipurpose passenger vehicles, trucks and buses instead of “vehicles,” as it had before the amendment. Unfortunately this overbroad language was reflected in the NPRM for this rulemaking. We are using the correct language for today's final rule (see S3 of the amended standard).

We note that Advocates supported extending the parking brake requirements to trailers. It expressed concern, however, that NHTSA did not collect any information or data for the administrative record on semitrailer/trailer rollaways. It also stated that NHTSA cannot ignore the security implications of the need to ensure the safety of trailers by impeding their illegal use in transportation by a requirement for parking brakes.

For the reasons discussed earlier, we did not intend to include the extension of parking brake or other requirements of FMVSS No. 105 to hydraulically braked trailers. If the agency were to propose to include trailers in the standard, we would provide appropriate supporting analysis and provide an opportunity for comment. However, the agency has no such plans at this time.

Advocates stated its continuing disagreement with the engagement effort threshold of both hand and foot operated parking brakes as “excessively high.” Advocates did not provide suggested forces that it believes are acceptable. Advocates stated its view that “there is no information of record anywhere in the history of rulemaking on FMVSS No. 105 demonstrating that 125 pounds of force for hand engagement and 150 pounds of force for foot engagement is acceptable for all licensed operators of affected vehicles.” Advocates also stated that NHTSA did not take into consideration the capabilities of operators with certain disabilities to engage parking brakes with the minimum forces required by the standard.

In response, NHTSA notes that Advocates did not provide information on the practicability, including costs, or benefits of providing systems that would operate with lower force levels. The agency believes that such systems would likely need to utilize electrical activation, which would be costly. NHTSA observes that FMVSS No. 105 allows for electrical activation of the parking brake (see S7.7.1.3(c)) with no requirement for application force levels. Electrical activation can be considered for drivers who may not otherwise be able to exert the energy required to actuate the hand or foot controls. Aftermarket parking brake supplemental control systems are also available for those drivers who may benefit from them.

Advocates also supported extending the new rule to retrofitting parking brakes on vehicles over 4,536 kg (10,000 pounds), stating that the safety benefits would be “considerable.” Advocates is referring to a delegation of authority to NHTSA from the Secretary of Transportation under Chapter 301 of Title 49 U.S.C. The delegation of authority is at 49 CFR 1.50(n) and states as follows:

NHTSA will not adopt Advocates' suggestion. Retrofitting existing commercial vehicles with parking brakes was not proposed in the NPRM. Thus, to adopt Advocates' suggestion would be outside the scope of this rulemaking. Furthermore, if a vehicle did not already have parking brakes, it would not be practicable (i.e., it would not be cost effective) to retrofit the vehicle with parking brakes.

In its comments, ArvinMeritor (Arvin) raised the following issues, which are addressed below.

Arvin stated that the costs estimated for compliance with the NPRM ($10.00 or less per vehicle) may be exceeded for some vehicles because of parking brake system re-design that might be necessary to meet the application force and grade holding requirements. NHTSA notes that the NPRM's cost estimate was based on the comments from several medium and heavy truck manufacturers, including General Motors and Ford, indicating that all hydraulically-braked trucks and buses are equipped with parking brakes. School buses must already meet the parking brake requirements in this final rule, and many school buses are built on chassis from a major truck manufacturer.

NHTSA agrees that some truck and bus manufacturers may incur additional costs to redesign the parking brake actuation mechanisms (levers and pedals) and other vehicle components to meet the performance requirements of the amendment. Also, in order to meet the grade holding requirements, the parking brake friction components (brake drums and linings) may also need to be redesigned. Arvin did not quantify the costs for the modifications but did provide information about existing parking brake designs. Arvin also described some of the design changes that may be implemented to meet the proposed requirements. Despite these additional costs that may be incurred, as it stated in the NPRM ( See 67 FR 66098, at 66099, “Costs and Benefits,”) NHTSA believes that any modifications required to meet this final rule can be completed at an average incremental cost of $10.00 per vehicle or less. Neither Arvin nor any other commenter disputed NHTSA's estimate of the average incremental cost per vehicle, nor did any commenter provide an alternative dollar estimate of the cost of providing the parking brake.

Arvin commented that the parking brake burnishing procedures in S7.7.4 of FMVSS No. 105 are not specific enough to ensure adequate grade-holding performance of the parking brake. While NHTSA has considered this comment, it believes that the parking brake burnishing procedures in S7.7.4 of FMVSS No. 105, which apply to vehicles with parking brake systems that do not use the service brake friction components, are adequate. The test procedures state that burnishing is conducted according to the vehicle manufacturer's published recommendations as furnished to the vehicle purchaser. If the manufacturer does not provide instructions to the vehicle purchaser for burnishing the parking brake friction components, the parking brake test is to be conducted without burnish.

Arvin commented that there may be a wide variety of parking brake performance because the parking brakes on hydraulically braked vehicles are not automatically adjusted and there are a number of different actuation system designs. Arvin asked the agency to consider requiring that parking brake systems continue to meet a specified level of performance while the vehicles are in service.

Based on its review of several parking brake designs for hydraulically-braked vehicles with GVWRs greater than 4,536 kilograms (10,000 pounds), NHTSA believes that adjustment of the friction components appears to be straight-forward and inexpensive. NHTSA believes that drivers and operators should maintain the parking brake system with appropriate adjustment and service. Although NHTSA does not have the statutory authority to test vehicles in service for compliance with parking brake performance, we note that the Federal Motor Carrier Safety Administration has jurisdiction over in-service requirements for large commercial vehicles.

Arvin commented that the proposed parking brake systems are not designed to provide emergency brake (vehicle stopping capability) service and would need to be substantially upgraded in order to provide an emergency brake function. In response, NHTSA notes that it is not requiring that the parking brake system provide an emergency brake function. At 49 CFR Part 571.3, “emergency brake” is defined as: a “mechanism designed to stop a motor vehicle after a failure of the service brake system.” The brake performance standards for hydraulic and electric brake vehicles, FMVSS Nos. 105 and 135, do not require vehicles to be equipped with an emergency brake, primarily because the service brake system is required to function with a variety of failed components. The parking brake system on hydraulically-braked vehicles has never been required to provide an emergency brake function.

TMA stated that the issue of lead time before the new requirements would take effect was not specifically raised in the NPRM. TMA stated its belief that a one-year lead time would be adequate. NHTSA agrees with TMA's comment that a one-year lead time would be adequate. Therefore, this final rule will take effect one year from the date of publication of this final rule in the Federal Register .

For the reasons discussed above, NHTSA has decided to issue a final rule amending FMVSS No. 105 by extending the minimum performance requirements and associated test procedures for parking brake systems to all MPVs, buses and trucks with gross vehicle weight ratings over 4,536 kilograms. NHTSA has concluded that it is in the interest of safety to require all MPVs, trucks and buses with GVWRs over 4,536 kilograms to have parking brakes that meet the performance requirements currently applicable to over 4,536 kilogram school buses.

To remove any ambiguity about the vehicle types to which FMVSS No. 105 applies, this final rule amends the application section (S3.) by stating that the standard applies “to multipurpose passenger vehicles, trucks, and buses with a GVWR greater than 3,500 kilograms (7,716 pounds) that are equipped with hydraulic or electric brake systems.

Finally, after granting a petition for rulemaking requesting that NHTSA update a reference to the Society of Automotive Engineers' (SAE) Recommended Practice for Moving Barrier Collision Tests, J972 (SAE J972), NHTSA noted there are no changes to the description of the rigid moving barrier in the more recent (May 2000) version of the document, although the “Barrier” paragraph has been re-designated as paragraph 4.3 instead of paragraph 3.3 in its designation in the November 1966 version of the document.

NHTSA noted that the information in the updated reference is substantively identical to the information in the original reference. Therefore, in this final rule, NHTSA amends S7.19 to update the reference to the May 2000 version of SAE J972.

Corrections —In a final rule of September 30, 1997 (62 FR 51064), NHTSA, among other changes, amended the title of FMVSS No. 135 from “Passenger Car Brake Systems” to “Light Vehicle Brake Systems.” The amended title accurately reflects the fact that when the final rule took effect, FMVSS No. 135 applies not just to passenger cars, but also to trucks, buses, and multipurpose passenger vehicles (MPV) with gross vehicle weight ratings of (GVWR) of 3,500 kilograms (7,716 pounds) or less. Several years later, although FMVSS No. 135 now applies to trucks, buses, and MPVs with GVWRs of 3,500 kilograms or less, the title of FMVSS No. 135 in 49 CFR has not yet been amended. This final rule corrects the title of FMVSS No. 135 to read “Light Vehicle Brake Systems.”

This final rule also corrects an error in the description of the conditions that may be indicated by illumination of the brake warning indicator. In the final rule dated September 5, 1997 (62 FR 46907), amending FMVSSs Nos. 105 and 135 to include electric brake systems, the agency incorrectly stated in the first sentence of S5.5.5 Labeling (b) that: “Vehicles manufactured with a split service brake system may use a common brake warning indicator to indicate two or more of the functions described in S5.5.1(a) through S5.5.1(d) .” (Emphasis added) This final rule corrects the first sentence of S5.5.5(b) to read: “Vehicles manufactured with a split service brake system may use a common brake warning indicator to indicate two or more of the functions described in S5.5.1(a) through S5.5.1(g).”

We have issued this final rule pursuant to our statutory authority. Under 49 U.S.C. Chapter 301, Motor Vehicle Safety (49 U.S.C. 30101 et seq. ), the Secretary of Transportation is responsible for prescribing motor vehicle safety standards that are practicable, meet the need for motor vehicle safety, and are stated in objective terms. 49 U.S.C. 30111(a). When prescribing such standards, the Secretary must consider all relevant, available motor vehicle safety information. 49 U.S.C. 30111(b). The Secretary must also consider whether a proposed standard is reasonable, practicable, and appropriate for the type of motor vehicle or motor vehicle equipment for which it is prescribed and the extent to which the standard will further the statutory purpose of reducing traffic accidents and deaths and injuries resulting from traffic accidents. Id . Responsibility for promulgation of Federal motor vehicle safety standards was subsequently delegated to NHTSA. 49 U.S.C. 105 and 322; delegation of authority at 49 CFR 1.50.

As a Federal agency, before promulgating changes to a Federal motor vehicle safety standard, NHTSA also has a statutory responsibility to follow the informal rulemaking procedures mandated in the Administrative Procedure Act at 5 U.S.C. 553. Among these requirements are Federal Register publication of a general notice of proposed rulemaking, and giving interested persons an opportunity to participate in the rulemaking through submission of written data, views or arguments. After consideration of the public comments, we must incorporate into the rules adopted, a concise general statement of the rule's basis and purpose.

The agency has carefully considered these statutory requirements in promulgating this final rule to amend FMVSS No. 105. As previously discussed in detail, we have solicited public comment in an NPRM and have carefully considered the public comments before issuing this final rule. As a result, we believe that this final rule reflects consideration of all relevant available motor vehicle safety information. Consideration of all these statutory factors has resulted in the following decisions in this final rule.

In the NPRM, we proposed to make FMVSS No. 105 parking brake requirements applicable to all “vehicles” over 4,536 kilograms (10,000 pounds). Some commenters questioned whether the term “vehicles” was intended to include motorcycles and trailers. In this final rule, NHTSA stated that it was its intent to make FMVSS No. 105 parking brake requirements applicable only to MPVs, buses and trucks over 4,536 kilograms (10,000 pounds). Thus, we amended S3., the applicability section, to make explicit the standard applies to MPVs, buses and trucks.

As indicated, we have thoroughly reviewed the public comments and amended the final rule to reflect the comments. In the few instances where we did not adopt a comment, we explain why we did not adopt the comment. In most instances, the comments addressed matters that were not raised in the NPRM, and thus were outside the scope of the rulemaking. We believe that this final rule, which extends minimum performance requirements and associated test procedures for parking brake systems to all MPVs, buses and trucks with GVWRs greater than 4,536 kilograms (10,000 pounds) meets the need for safety.

Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), provides for making determinations whether a regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and to the requirements of the Executive Order. The Order defines a “significant regulatory action” as one that is likely to result in a rule that may:

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

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

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

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

This notice was not reviewed under Executive Order 12866. Further, this notice was determined not to be significant within the meaning of the DOT Regulatory Policies and Procedures.

In this document, NHTSA extends the applicability of already existing parking brake requirements to cover vehicles previously excluded. As explained above, comments from heavy vehicle manufacturers indicate that most, if not all, of these vehicles are already manufactured with parking brakes designed to meet the minimum performance requirements that the agency is proposing to apply. For the remaining vehicles, the agency estimates the cost of complying with these requirements to be less than $10 per vehicle. Considering that the total number of such vehicles that are subject to the requirements is estimated to be about 212,000 annually, the agency estimates that the total annual effect of this rule is less than $2,120,000. Accordingly, the agency concludes that this rule has no significant economic effects.

The DOT's regulatory policies and procedures require the preparation of a full regulatory evaluation, unless the agency finds that the impacts of a rulemaking are so minimal as not to warrant the preparation of a full regulatory evaluation. Since public comments suggest that most, if not all, of these vehicles are already manufactured with parking brakes designed to meet the minimum performance requirements that the agency applies in this final rule, the agency concludes that the impacts of this rulemaking are minimal. Thus, it has not prepared a full regulatory evaluation.

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq. , as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities ( i.e. , small businesses, small organizations, and small governmental jurisdictions). The Small Business Administration's regulations at 13 CFR Part 121 define a small business, in part, as a business entity “which operates primarily within the United States.” (13 CFR 121.105(a)). No regulatory flexibility analysis is required if the head of an agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities.

NHTSA has considered the effects of this rulemaking action under the Regulatory Flexibility Act. As explained above, anecdotal evidence from heavy vehicle manufacturers suggests that most, if not all, of these vehicles are already manufactured with parking brakes designed to meet the minimum performance requirements that the agency is applying in this final rule. For the remaining vehicles, the agency estimates the cost of complying with these requirements to be less than $10 per vehicle. Considering that the total number of such vehicles that are subject to the requirements is approximately 212,000 vehicles annually, the agency estimates that the total annual effect of this rule to be less than $2,120,000. Accordingly, I hereby certify that this final rule will not have a significant economic impact on a substantial number of small entities.

NHTSA has analyzed this rulemaking action for the purposes of the National Environmental Policy Act. The agency has determined that implementation of this action would not have any significant impact on the quality of the human environment.

Executive Order 13132 requires NHTSA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” The Executive Order defines “policies that have federalism implications” to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, NHTSA may not issue a regulation with Federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, the agency consults with State and local governments, or the agency consults with State and local officials early in the process of developing the regulation. NHTSA also may not issue a regulation with Federalism implications and that preempts State law unless the agency consults with State and local officials early in the process of developing the regulation.

NHTSA has analyzed this rulemaking action in accordance with the principles and criteria set forth in Executive Order 13132. The agency has determined that this rule will not have sufficient federalism implications to warrant consultation with State and local officials or the preparation of a federalism summary impact statement. This rule will not have any substantial effects on the States, or on the current Federal-State relationship, or on the current distribution of power and responsibilities among the various local officials.

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

Under the Paperwork Reduction Act of 1995, a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid Office of Management and Budget (OMB) control number. This final rule does not require any collections of information, or recordkeeping or retention requirements as defined by the OMB in 5 CFR Part 1320.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272) directs NHTSA to use voluntary consensus standards in its regulatory activities unless doing so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g. , materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies, such as the Society of Automotive Engineers (SAE). The NTTAA directs the agency to provide Congress, through the OMB, explanations when we decide not to use available and applicable voluntary consensus standards.

For this final rule, there are no voluntary consensus standards available at this time. However, NHTSA will consider any such standards if they become available.

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

This rule will not result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector of more than $100 million annually. The estimated cost of complying with this rule is less than $10 per vehicle. Considering that the total number of vehicles to which these requirements apply is approximately 212,000 vehicles annually, the estimated aggregate cost of this rule is less than $2,120,000. Accordingly, the agency has not prepared an Unfunded Mandates assessment.

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

We have solicited comments on the Plain Language implications of the NPRM in the Federal Register document of October 30, 2002 (67 FR 66098) on p. 66101. We received no comments on the Plain Language issue.

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