The Board administers the TSP, which was established by the Federal Employees' Retirement System Act of 1986 (FERSA), Public Law 99-335, 100 Stat. 514. The TSP provisions of FERSA have been codified, as amended, largely at 5 U.S.C. 8351 and 8401-79. The TSP is a tax-deferred retirement savings plan for Federal civilian employees and members of the uniformed services. The TSP is similar to cash or deferred arrangements established for private-sector employees under section 401(k) of the Internal Revenue Code (26 U.S.C. 401(k)).

The TSP is managed by five part-time Presidentially-appointed Board members and an Executive Director. FERSA gives the Executive Director authority to prescribe regulations permitting participants to make limited withdrawals from their TSP accounts before they are separated from Government employment. 5 U.S.C. 8433(h)(4). This temporary regulation is based upon that authority and the provisions of 5 U.S.C. 553(d)(1) and (3).

Currently, the TSP's regulations prohibit participants from requesting a financial hardship in-service withdrawal from their accounts if they have received another financial hardship withdrawal within the last six months; the temporary regulation deletes that restriction for a financial need that results from Hurricane Katrina. In addition, a participant who obtains a financial hardship in-service withdrawal may not contribute to the TSP for a period of six months after the withdrawal is processed. The temporary regulation provides that the TSP will not extend this contribution suspension period if the participant's contributions have already been suspended due to a previous hardship distribution.

I certify that these regulations will not have a significant economic impact on a substantial number of small entities. They will affect only employees of the Federal Government.

I certify that these regulations do not require additional reporting under the criteria of the Paperwork Reduction Act of 1980.

Pursuant to the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 602, 632, 653, 1501-1571, the effects of this regulation on state, local, and tribal governments and the private sector have been assessed. This regulation will not compel the expenditure in any one year of $100 million or more by state, local, and tribal governments, in the aggregate, or by the private sector. Therefore, a statement under section 1532 is not required.

This rule is issued under Marketing Agreement No. 121 and Marketing Order No. 915, both as amended (7 CFR part 915), regulating the handling of avocados grown in South Florida, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

USDA is issuing this rule in conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

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

This rule continues in effect an action prohibiting the handling of fresh market avocados in 20 bushel plastic field bins to destinations inside the production area. This rule also continues in effect the requirement that handlers provide, at the time of inspection, information regarding the avocado count per container, which provides the Committee and the industry with information regarding the sizes of avocados packed. These changes are expected to decrease packing costs by reducing the annual loss of field bins and provide handlers with additional marketing information. The Committee unanimously recommended these changes at meetings held on September 8, 2004, and November 10, 2004.

Section 915.51(4) of the order provides authority for establishing container requirements for the handling of avocados. Section 915.51(6) of the order provides that any or all requirements effective pursuant to § 915.51(4) shall be different for the handling of avocados within the production area and outside the production area. Section 915.305 of the order's rules and regulations specifies the avocado container requirements.

Section 915.60 of the order provides authority for the Committee to require handlers to file reports and provide other information as may be necessary for the Committee to perform its duties. Section 915.150 specifies the requisite reporting requirements.

This rule amends § 915.305 by adding a prohibition to the handling of fresh market avocados in 20 bushel plastic field bins to all destinations within the regulated production area. This rule also amends § 915.150 by adding a requirement that handlers provide additional pack information at the time of inspection.

There were no specific container net weight or dimension requirements for avocados handled to destinations within the production area before this rule. However, shipments of avocados within the production area must meet maturity requirements and be inspected.

Prior to this action, 20 bushel plastic field bins (bins) were commonly being used for the purpose of moving avocados into the current of commerce within the production area (handling). Following the successful inspection of avocados packed in bins, the inspector would place a cardboard cover over the top of the bin and seal it with official Federal-State Inspection Service tape. The bins could then be transported and sold at the various markets throughout the production area. It should be noted that current container regulations do not authorize the use of field bins for shipments of avocados from within the production area to any point outside of the production area.

At the September 8, 2004, meeting, Committee members raised the issue that, each year, a large number of bins are apparently misappropriated during the avocado season. Committee consensus is that the ongoing loss of the bins has been costly to the industry, with the average cost of a bin about $150 each. By Committee estimates, over 700 bins were lost during the previous season at a cost of over $100,000 to the bins' owners.

In the harvesting of avocados, field bins have the primary function of transporting avocados from grove to packing facility. These bins are usually owned by individual packinghouses, or handlers, and are either delivered to, or picked up at, the packing facility by the harvester. Handlers have found that, much too often, field bins are not returned to the proper packinghouse, but are instead apparently misappropriated and used for other purposes. Because of their durability,many of the bins are acquired and reused by small cash handlers to pack and transport fruit in the production area. Often these bins are then abandoned at various market locations throughout the production area.

Once the bins are transported to different market locations throughout the production area, they become very difficult to recover. The avocado groves and packinghouses are situated around the Homestead, Florida area. However, the production area stretches into Central Florida. Consequently, bins often end up in locations over 100 miles away in cities such as Tampa and Orlando. Once the avocados have been marketed, the bins are purportedly used for many different purposes and may be dispersed even further from the originating packinghouse. Handlers are thus provided very little chance of recovering them for their own use.

The Committee believes that once bins are no longer authorized for use as containers for inspection, transportation, and sale of fresh avocados to markets within the production area, the movement of these containers will be limited, helping to reduce the number of lost bins. Cash handlers—generally handlers without packing facilities that tend to buy bulk avocados directly from the growers—now have to use different containers to pack and transport avocados within the production area. Committee members suggested that one such option could be a commonly available 20 bushel field bin constructed of cardboard rather than plastic, but at a much lower cost of about $10 each.

The Committee believes this change will help to restrict the use of the expensive plastic field bins to their originally intended purpose as a method of conveyance of avocados from grove to packinghouse. Prohibiting the use of these bins for the purpose of handling fresh market avocados helps prevent them from being transported to locations far from the originating packinghouse. This, in turn, results in the majority of the bins remaining in the local area where they are much more easily recovered. Reducing the number of lost bins represents a significant potential cost savings for the industry. Therefore, the Committee voted unanimously to put this regulation in place.

This rule also revises the reporting requirements under the order. Handlers are reporting to the inspector at the time of inspection the number of 1/4 bushel, 1/2 bushel, and 4/5 bushel containers packed. This rule not only requires that handlers continue to provide the number and sizes of containers packed, but in addition, requires handlers to provide information regarding the number of avocados packed per type of container, or “count per container.” Knowing the actual number of avocados packed per container, in addition to the number and size of containers packed, the Committee and the industry are armed with information regarding the various sizes of avocados being packed, as well as the quantity of different sizes being marketed. For example, a handler might report to the inspector on duty that the current lot being inspected has 5001/4bushel containers, 6 count each. This type of information would provide the Committee with information regarding the quantity of large avocados being packed.

Prior to this change, no data was collected that provided information on the various sizes of avocados being packed. During the Committee's discussion of this issue, handlers agreed that although they were getting information regarding the number of bushels packed, it would be valuable to have information regarding the volume of small, medium, and large avocados packed for market. The Committee believes the availability of such information helps both grower and handler when making harvesting and packing decisions.

Committee members agreed having information to help determine if any sizes are overrepresented or underrepresented in the marketplace would be valuable when planning and making marketing decisions. There is a close correlation between size and price. An oversupply of one size of fruit can negatively impact the price for that size and all sizes. By reporting count per container, the industry is better able to gauge available markets by knowing the volume of what sizes are available.

An avocado will never reach full maturity unless it is severed from the tree. Consequently, harvest can be delayed without affecting the flavor or the quality of the fruit. This fact, in combination with information on sizes, allows the industry to make harvesting and marketing decisions based on available markets.

Without good information regarding the sizes available in the market, the market pipelines for certain sizes can become full, driving prices down. Having access to this information will help the industry better balance supply with demand. By knowing which sizes are in short supply, the industry can determine which sizes need to be harvested. Such information may help reduce periods of oversupply and the effect oversupply has on price, providing the industry with another tool to more efficiently market avocados and maximize industry returns.

Previously, at the time of inspection, handlers were commonly reporting container size and quantity to the inspector, who then included this information on the inspection certificates. Inspection certificates were then provided to the Committee, which compiled the information into reports that were in turn provided to the avocado industry. Committee members believe this procedure has been working effectively, and that having handlers report the count per container in the same fashion will be equally effective. In most cases, this is information the handler already has available, and thus needs only to supply it to the inspector at the time of inspection. As with the previous report, the Committee is compiling the data received and reporting it to the industry on a composite basis to aid growers and handlers in planning their individual operations and in making marketing decisions during the season.

This change provides the industry with an indication of the volume of small, medium, and large sized avocados being shipped to the fresh market. With this change, handlers believe they have more information on which to base their harvesting and marketing decisions. Consequently, the Committee voted unanimously to make this change.

Section 8e of the Act provides that when certain domestically produced commodities, including avocados, are regulated under a Federal marketing order, imports of that commodity must meet the same or comparable grade, size, quality, and maturity requirements. As this rule changes the container and reporting requirements under the domestic handling regulations, no corresponding changes to the import regulations are required.

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

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

There are approximately 150 producers of avocados in the production area and approximately 35 handlers subject to regulation under the order. Small agricultural producers are defined by the Small Business Administration (SBA) as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $6,000,000 (13 CFR 121.201).

According to the National Agricultural Statistics Service and Committee data, the average price for Florida avocados during the 2003-04 season was around $22.22 per 55-pound bushel container, and total shipments were near 660,000 55-pound bushel equivalents. Approximately 11 percent of all handlers handled 76 percent of Florida avocado shipments. Using the average price and shipment information provided by the Committee, nearly all avocado handlers could be considered small businesses under the SBA definition. In addition, based on avocado production, grower prices, and the total number of Florida avocado growers, the average annual grower revenue is approximately $98,000. Thus, the majority of Florida avocado producers may also be classified as small entities.

This rule changes the container and reporting requirements currently prescribed under the order. This rule continues in effect the action prohibiting the handling of fresh market avocados in 20 bushel plastic field bins to destinations within the production area. This rule also continues in effect the action requiring handlers to provide information regarding the avocado count per container, which in turn provides the Committee and the avocado industry with an indication of the sizes of avocados being packed. These changes are expected to decrease packing costs by reducing losses of field bins and to provide handlers with additional information on which to base their harvesting and marketing decisions. The Committee unanimously recommended these changes at meetings held on September 8, 2004, and November 10, 2004. This rule modifies the container and reporting requirements specified in §§ 915.305 and 915.150 respectively. The authorities for these actions are provided for in §§ 915.51 and 915.60.

It is not anticipated that this rule will generate any increased costs for handlers or producers. The Committee recommended the change in the container requirements in an effort to reduce the costs stemming from the misappropriation of bins. According to estimates, more than 700 bins were lost last season, at a cost to the industry of around $100,000. The primary purpose of these field bins is to provide bulk conveyance of harvested avocados from the groves to the packinghouses. However, a segment of the industry has been using them to pack and transport avocados to markets within the production area. Handlers have found that bins have been misappropriated, used for the handling of avocados for sale within the production area, and not subsequently returned to the rightful owner. With a prohibition on the use of the plastic bins in the handling of avocados to points within the production area, the Committee hopes to break this cycle and move those who prefer this size container to a lower cost alternative. While an alternative cardboard container that holds an equivalent volume costs only about $10, an individual plastic bin costs around $150. This change should result in a cost savings.

By requiring handlers to supply information on the count per container at the time of inspection, the industry has access to additional shipment information. There is little or no cost associated with this action, as most handlers have this information readily available and are supplying it along with information already provided. However, the industry can use this data when making harvesting and marketing decisions. As previously noted, there previously was no reliable information widely available regarding the sizes of avocados in the channels of commerce. Without good information regarding the sizes available in the market, handlers had no way to tell whether a certain size was overly available or in short supply. Having access to this information will help the industry more efficiently balance supply with demand, thus reducing periods of oversupply and price variations, while providing the industry with another tool to better market its fruit, serve customers, and maximize returns.

This rule will have a positive impact on affected entities. The changes were recommended to reduce costs and improve available industry information. The reduction in costs associated with lost bins is expected to benefit all handlers regardless of size. The availability of more timely and accurate industry information also benefits both large and small handling operations. Consequently, the opportunities and benefits of this rule are expected to be equally available to all.

An alternative to the actions recommended by the Committee was considered prior to making the final recommendations. The alternative considered was requesting the count per container from handlers on a voluntary basis. However, by requiring the information under authority of the order, all handlers are required to participate, which means more accurate reporting and information. Therefore, this alternative was rejected.

This rule will require small and large avocado handlers to provide some additional information at the time of inspection. However, handlers have access to this information and are already providing other information at the time of inspection. This action requires no additional forms. The information is recorded by the inspector on the inspection certificate.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), AMS has received OMB approval for the information collection requirements for this marketing order program. These requirements are approved under the Fruit Crops collection package, OMB No. 0581-0189 OMB. The reporting modifications made by this rule are small and will have no impact on the overall total burden hours approved by OMB.

AMS is committed to compliance with the Government Paperwork Elimination Act (GPEA), which requires Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible.

As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. In addition, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule.

Further, the Committee's meetings were widely publicized throughout the avocado industry and all interested persons were invited to attend and participate in Committee deliberations. Like all Committee meetings, the September 8, 2004, and November 10, 2004, meetings were public meetings and all entities, both large and small, were able to express their views on these issues. Finally, interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses.

An interim final rule concerning this action was published in theFederal Registeron June 24, 2005. Copies of the rule were mailed by the Committee's staff to all Committee members and avocado handlers. In addition, the rulewas made available through the Internet by USDA and the Office of the Federal Register. That rule provided for a 60-day comment period which ended August 23, 2005. One response was received. However, it was not relevant to this rulemaking action. Therefore, no changes will be made as a result of this response.

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

After consideration of all relevant material presented, including the Committee's recommendations, and other information, it is found that finalizing this interim final rule, without change, as published in theFederal Register(70 FR 36467, June 24, 2005) will tend to effectuate the declared policy of the Act.

A final rule published in theFederal Registeron Friday, May 20, 2005 (70 FR 29388), was intended to only amend Subpart—Order Regulating Handling of Part 927 and to leave Subpart—Control Committee Rules and Regulations unchanged. However, amendatory language in the final rule resulted in Subpart—Control Committee Rules and Regulations being removed from 7 CFR part 927.

The codified provisions of 7 CFR part 927 do not include the Control Committee Rules and Regulations. This correction document adds Subpart—Control Committee Rules and Regulations back into 7 CFR part 927.

Discussion of Final Regulation

This final regulation informs the public about structural and functional changes within OFHEO that were recently implemented by the Acting Director. Changes in OFHEO's structure consist of the establishment of a new Office of Executive Director, and the establishment of the Offices of Human Resources Management and of Budget and Financial Management. The Office of Human Resources Management and the Office of Budget and Financial Management will assume the functions of the former Office of Finance and Administration, among other responsibilities. The Office of Executive Director is headed by the Executive Director and Chief of Staff, and consists of the Office of Budget and Financial Management, Office of Human Resources Management, the Office of Technology and Information Management, and the Office of Strategic Planning and Management. The Office of Information Technology is renamed Office of Technology and Information Management to reflect more accurately the nature and scope of that Office's responsibilities.

In promulgating this regulation, OFHEO finds that notice and public comment are not necessary. Section 553(b)(3)(A) of title 5, United States Code, provides that when regulations involve matters of agency organization, procedure or practice, the agency may publish regulations in final form. In addition, OFHEO finds, in accordance with 5 U.S.C. 553(d), that a delayed effective date is unnecessary. Accordingly, this regulation is effective upon publication.

The final regulation is not classified as an economically significant rule under Executive Order 12866 because it would not result in an annual effect on the economy of $100 million or more or a major increase in costs or prices for consumers, individual industries, Federal, state, or local government agencies, or geographic regions; or have significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic or foreign markets. Accordingly, no regulatory impact assessment is required and this final regulation has not been submitted to the Office of Management and Budget for review.

Executive Order 13132 requires that Executive departments and agencies identify regulatory actions that have significant federalism implications. A regulation has federalism implications if it has substantial direct effects on the states, on the relationship or distribution of power between the Federal Government and the states, or on the distribution of power and responsibilities among various levels of government. The final regulation has no federalism implications that warrant the preparation of a federalism assessment in accordance with Executive Order 13132.

The Regulatory Flexibility Act (5 U.S.C. 601et seq.) requires that a regulation that has a significant economic impact on a substantial number of small entities, small businesses, or small organizations include an initial regulatory flexibility analysis describing the regulation's impact on small entities. Such an analysis need not be undertaken if the agency has certified that the regulation will not have a significant economic impact on a substantial number of small entities, 5 U.S.C. 605(b). OFHEO has considered the impact of the final regulation under the Regulatory Flexibility Act. The Acting General Counsel of OFHEO certifies that the final regulation will not have a significant economic impact on a substantial number of small business entities.

This final regulation does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501et seq.).

The FAA has determined that notice and opportunity for prior public comment is impracticable because these procedures would significantly delay certification of the airplane 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; however, we invite interested persons to participate in this rulemaking by submitting written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.

We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning these special conditions. The docket is available for public inspection before and after the comment closing date. If you wish to review the docket in person, go to the address in theADDRESSESsection of this preamble between 7:30 a.m. and 4 p.m., Monday through Friday, except Federal holidays.

We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive.

If you want the FAA to acknowledge receipt of your comments on these special conditions, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.

On August 5, 2005, Avcon Industries, Inc., P.O. Box 748, Newton, Kansas, 67114, applied for a supplemental type certificate (STC) to modify Learjet Model 35 series airplanes currently approved under Type Certificate No. A10CE. The Learjet Model 35 airplanes are small transport category airplanes powered by two turbojet engines, with maximum takeoff weight of up to 18,000 lbs. These airplanes operate with 2-person crew and can seat up to 8 passengers. The proposed modification incorporates the installation of Kollsman 24771 Air Data Computers and Thommen AD30 displays. The avionics/electronics and electrical systems installed in this airplane are flight critical and have the potential to be vulnerable to high-intensity radiated fields (HIRF) external to the airplane.

Under the provisions of 14 CFR 21.101, Avcon Industries, Inc., must show that the Learjet Model 35 series airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A10CE, or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The certification basis for the Learjet Model 35 series airplanes includes 14 CFR part 25 effective February 1, 1965, as amended by Amendments 25-1, 25-2, 25-4, 25-7, 25-18, and § 25.571(d) of Amendment 25-10, Special Conditions set forth in FAA letter to Learjet dated March 1, 1967, and Special Conditions No. 25-50-CE-6 dated April 18, 1973, and Amendment 1 dated September 18, 1973. The certification basis for Models 35A also includes Special Conditions No. 25-72-CE-8 dated November 3, 1976, and Amendment 1 dated March 14, 1978. The certification basis for Model 35A (C-21A), in addition to the basis listed above, includes Special Conditions 25-ANM-28 dated May 3, 1989. In addition, the certification basis includes certain later amended sections of the applicable part 25 regulations that are not relevant to these special conditions.

If the Administrator finds that the applicable airworthiness regulations (i.e., part 25, as amended) do not contain adequate or appropriate safety standards for the Learjet Model 35 series airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the Learjet Model 35 series airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.

Special conditions, as defined in 14 CFR 11.19, are issued in accordance with § 11.38 and become part of the type certification basis in accordance with § 21.101.

Special conditions are initially applicable to the model for which they are issued. Should Avcon Industries Inc., apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. A10CE to incorporate thesame or similar novel or unusual design feature, these special conditions would also apply to the other model under the provisions of § 21.101.

As noted earlier, the Learjet Model 35 series airplanes, as modified by Avcon Industries, Inc., will incorporate Kollsman 24771 Air data computers and Thommen AD30 displays. The Thommen displays and air data sensor perform critical functions. These systems may be vulnerable to high intensity radiated fields external to the airplane. The current airworthiness standards of part 25 do not contain adequate or appropriate safety standards for the protection of this equipment from the adverse effects of HIRF. Accordingly, this system is considered to be a novel or unusual design feature.

There is no specific regulation that addresses protection requirements for electrical and electronic systems from HIRF. Increased power levels from ground-based radio transmitters and the growing use of sensitive avionics/electronics and electrical systems to command and control airplanes have made it necessary to provide adequate protection.

To ensure that a level of safety is achieved equivalent to that intended by the regulations incorporated by reference, special conditions are needed for the Learjet Model 35 series airplanes as modified by Avcon Industries, Inc. These special conditions require that new avionics/electronics and electrical systems that perform critical functions be designed and installed to preclude component damage and interruption of function due to both the direct and indirect effects of HIRF.

With the trend toward increased power levels from ground-based transmitters, and the advent of space and satellite communications, coupled with electronic command and control of the airplane, the immunity of critical avionics/electronics and electrical systems to HIRF must be established.

It is not possible to precisely define the HIRF to which the airplane will be exposed in service. There is also uncertainty concerning the effectiveness of airframe shielding for HIRF. Furthermore, coupling of electromagnetic energy to cockpit-installed equipment through the cockpit window apertures is undefined. Based on surveys and analysis of existing HIRF emitters, an adequate level of protection exists when compliance with the HIRF protection special condition is shown with either paragraph 1 or 2 below:

1. A minimum threat of 100 volts rms (root-mean-square) per meter electric field strength from 10 KHz to 18 GHz.

a. The threat must be applied to the system elements and their associated wiring harnesses without the benefit of airframe shielding.

b. Demonstration of this level of protection is established through system tests and analysis.

2. A threat external to the airframe of the field strengths identified in the table below for the frequency ranges indicated. Both peak and average field strength components from the table are to be demonstrated.

The threat levels identified above are the result of an FAA review of existing studies on the subject of HIRF, in light of the ongoing work of the Electromagnetic Effects Harmonization Working Group of the Aviation Rulemaking Advisory Committee.

As discussed above, these special conditions are applicable to Learjet Model 35 series airplanes modified by Avcon Industries, Inc. Should Avcon Industries, Inc., apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. A10CE to incorporate the same or similar novel or unusual design feature, these 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 Learjet Model 35 series airplanes modified by Avcon Industries, Inc. 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 procedure in several prior instances and has been derived without substantive change from those previously issued. 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 authority citation for these special conditions is as follows:

1.Protection from Unwanted Effects of High-Intensity Radiated Fields (HIRF). Each electrical and electronic system that performs critical functions must be designed and installed to ensure that the operation and operational capability of these systems to perform critical functions are not adversely affected when the airplane is exposed to high-intensity radiated fields.

2. For the purpose of these special conditions, the following definition applies:

Critical Functions:Functions whose failure would contribute to or cause a failure condition that would prevent the continued safe flight and landing of the airplane.

The FAA has determined that notice and opportunity for prior public comment is impracticable because these procedures would significantly delay certification of the airplane 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; however, the FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.

We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning these special conditions. The docket is available for public inspection before and after the comment closing date. If you wish to review the docket in person, go to the address in theADDRESSESsection of this preamble between 7:30 a.m. and 4 p.m., Monday through Friday, except Federal holidays.

We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive.

If you want the FAA to acknowledge receipt of your comments on these special conditions, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.

On April 22, 2005, ABX Air, Inc., 145 Hunter Drive, Wilmington, OH 45177, applied for a supplemental type certificate (STC) to modify Boeing Model 767-200, -300 and -300F series airplanes. These models are currently approved under Type Certificate No. A1NM. The Boeing Model 767-200, -300 and -300F series airplanes are large transport category airplanes powered by either two Pratt Whitney or two General Electric engines. The Boeing Model 767-200 and -300 series airplanes carry a maximum of 351 passengers. The modification incorporates the installation of the Innovative Solutions and Support (ISS) Flat Panel Display System (FPDS). The avionics/electronics and electrical systems installed in this airplane have the potential to be vulnerable to high-intensity radiated fields (HIRF) external to the airplane.

Under the provisions of 14 CFR 21.101, ABX Air, Inc. must show that the Boeing Model 767-200, -300 and -300F series airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A1NM, or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The certification basis for Boeing Model 767-200, -300, and -300F series airplanes includes applicable sections of 14 CFR part 25, effective July 30, 1982, as amended by Amendments 25-1 through 25-45, except for portions of Amendment 25.38. In addition, the certification basis includes certain special conditions, exemptions, equivalent levels of safety, or later amended sections of the applicable part 25 that are not relevant to these special conditions.

If the Administrator finds that the applicable airworthiness regulations (i.e., part 25, as amended) do not contain adequate or appropriate safety standards for Boeing Model 767-200, -300 and -300F series airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the Boeing Model 767-200, -300 and -300F series airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.

Special conditions, as defined in 14 CFR 11.19, are issued in accordance with § 11.38 and become part of the type certification basis in accordance with § 21.101.

Special conditions are initially applicable to the model for which they are issued. Should ABX Air, Inc. apply at a later date for a STC to modify any other model included on Type Certificate No. A1NM to incorporate the same or similar novel or unusual design feature, these special conditions would also apply to the other model under the provisions of § 21.101.

As noted earlier, the Boeing Model 767-200, -300 and -300F series airplanes modified by ABX Air, Inc. will incorporate a FPDS manufactured byISS that will perform critical functions. This system may be vulnerable to high-intensity radiated fields (HIRF) external to the airplane. The current airworthiness standards of part 25 do not contain adequate or appropriate safety standards for the protection of this equipment from the adverse effects of HIRF. Accordingly, this system is considered to be a novel or unusual design feature.

There is no specific regulation that addresses protection requirements for electrical and electronic systems from HIRF. Increased power levels from ground-based radio transmitters and the growing use of sensitive avionics/electronics and electrical systems to command and control airplanes have made it necessary to provide adequate protection.

To ensure that a level of safety is achieved equivalent to that intended by the regulations incorporated by reference, special conditions are needed for the Boeing Model 767-200, -300 and -300F series airplanes modified by ABX Air, Inc. These special conditions require that new avionics/electronics and electrical systems that perform critical functions be designed and installed to preclude component damage and interruption of function due to both the direct and indirect effects of HIRF.

With the trend toward increased power levels from ground-based transmitters, and the advent of space and satellite communications coupled with electronic command and control of the airplane, the immunity of critical avionics/electronics and electrical systems to HIRF must be established.

It is not possible to precisely define the HIRF to which the airplane will be exposed in service. There is also uncertainty concerning the effectiveness of airframe shielding for HIRF. Furthermore, coupling of electromagnetic energy to cockpit-installed equipment through the cockpit window apertures is undefined. Based on surveys and analysis of existing HIRF emitters, an adequate level of protection exists when compliance with the HIRF protection special condition is shown with either paragraph 1 OR 2 below:

1. A minimum threat of 100 volts rms (root-mean-square) per meter electric field strength from 10 KHz to 18 GHz.

a. The threat must be applied to the system elements and their associated wiring harnesses without the benefit of airframe shielding.

b. Demonstration of this level of protection is established through system tests and analysis.

2. A threat external to the airframe of the field strengths identified in the table below for the frequency ranges indicated. Both peak and average field strength components from the table are to be demonstrated.

The threat levels identified above are the result of an FAA review of existing studies on the subject of HIRF, in light of the ongoing work of the Electromagnetic Effects Harmonization Working Group of the Aviation Rulemaking Advisory Committee.

As discussed above, these special conditions are applicable to Boeing Model 767-200, -300 and -300F series airplanes modified by ABX Air, Inc. Should ABX Air, Inc. apply at a later date for a STC to modify any other model included on Type Certificate No. A1NM to incorporate the same or similar novel or unusual design feature, these 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 Boeing Model 767-200, -300 and -300F series airplanes modified by ABX Air, Inc. 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 procedure in several prior instances and has been derived without substantive change from those previously issued. 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 authority citation for these special conditions is as follows:

1.Protection from Unwanted Effects of HIRF.Each electrical and electronic system that performs critical functions must be designed and installed to ensure that the operation and operational capability of these systems to perform critical functions are not adversely affected when the airplane is exposed to high-intensity radiated fields.

2. For the purpose of these special conditions, the following definition applies:

Critical Functions:Functions whose failure would contribute to or cause a failure condition that would prevent the continued safe flight and landing of the airplane.

The FAA has determined that notice and opportunity for prior public comment is impracticable because these procedures would significantly delay certification of the airplane 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; however, the FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.

We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning these special conditions. The docket is available for public inspection before and after the comment closing date. If you wish to review the docket in person, go to the address in theADDRESSESsection of this preamble between 7:30 a.m. and 4 p.m., Monday through Friday, except Federal holidays.

We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive.

If you want the FAA to acknowledge receipt of your comments on these special conditions, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.

On June 6, 2005, Genesis 3 Engineering, Inc., 800 Research Drive, Suite 115, Woodland Park, Colorado 80863, applied for a supplemental type certificate (STC) to modify Learjet Model 35, 35A, 36, and 36A airplanes. These models are currently approved under Type Certificate No. A10CE. The Learjet Model 35, 35A, 36, and 36A airplanes are small transport category airplanes powered by two turbojet engines, with maximum takeoff weights of up to 18,000 pounds. These airplanes operate with a 2-pilot crew and can seat up to 8 passengers. The proposed modification incorporates the installation of dual Revue Thommen AG AD30 Air Data Display Units (ADDUs) and dual J2, Inc. Air Data Computers (ADCs). The information this equipment presents is flight critical. The avionics/electronics and electrical systems to be installed on these airplanes have the potential to be vulnerable to high-intensity radiated fields (HIRF) external to the airplane.

Under the provisions of 14 CFR 21.101, Genesis 3 Engineering, Inc. must show that the Learjet Model 35, 35A, 36, and 36A airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A10CE, or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The certification basis for Learjet Model 35, 35A, 36, and 36A airplanes includes 14 CFR part 25, as amended by Amendment 25-2, Amendment 25-4, Amendment 25-7, Amendment 25-18, and paragraph 25.571(d) of Amendment 25-10.

If the Administrator finds that the applicable airworthiness regulations (i.e., part 25, as amended) do not contain adequate or appropriate safety standards for Learjet Model 35, 35A, 36, and 36A airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the Learjet Model 35, 35A, 36, and 36A airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.

Special conditions, as defined in 14 CFR 11.19, are issued in accordance with § 11.38 and become part of the type certification basis in accordance with § 21.101.

Special conditions are initially applicable to the model for which they are issued. Should Genesis 3 Engineering, Inc. apply at a later date for a STC to modify any other model included on Type Certificate No. A10CE to incorporate the same or similar novel or unusual design feature, these special conditions would also apply to the other model under the provisions of § 21.101.

As noted earlier, the Learjet Model 35, 35A, 36, and 36A airplanes modified by Genesis 3 Engineering, Inc. will incorporate dual Revue Thommen AG AD30 ADDUs and dual J2, Inc. ADCs that will perform critical functions. These systems may be vulnerable to high-intensity radiated fields (HIRF)external to the airplane. The current airworthiness standards of part 25 do not contain adequate or appropriate safety standards for the protection of this equipment from the adverse effects of HIRF. Accordingly, this system is considered to be a novel or unusual design feature.

There is no specific regulation that addresses protection requirements for electrical and electronic systems from HIRF. Increased power levels from ground-based radio transmitters and the growing use of sensitive avionics/electronics and electrical systems to command and control airplanes have made it necessary to provide adequate protection.

To ensure that a level of safety is achieved equivalent to that intended by the regulations incorporated by reference, special conditions are needed for the Learjet Model 35, 35A, 36, and 36A airplanes modified by Genesis 3 Engineering, Inc. These special conditions require that new avionics/electronics and electrical systems that perform critical functions be designed and installed to preclude component damage and interruption of function due to both the direct and indirect effects of HIRF.

With the trend toward increased power levels from ground-based transmitters, and the advent of space and satellite communications coupled with electronic command and control of the airplane, the immunity of critical avionics/electronics and electrical systems to HIRF must be established.

It is not possible to precisely define the HIRF to which the airplane will be exposed in service. There is also uncertainty concerning the effectiveness of airframe shielding for HIRF. Furthermore, coupling of electromagnetic energy to cockpit-installed equipment through the cockpit window apertures is undefined. Based on surveys and analysis of existing HIRF emitters, an adequate level of protection exists when compliance with the HIRF protection special condition is shown with either paragraph 1 OR 2 below:

1. A minimum threat of 100 volts rms (root-mean-square) per meter electric field strength from 10 KHz to 18 GHz.

a. The threat must be applied to the system elements and their associated wiring harnesses without the benefit of airframe shielding.

b. Demonstration of this level of protection is established through system tests and analysis.

2. A threat external to the airframe of the field strengths identified in the table below for the frequency ranges indicated. Both peak and average field strength components from the table are to be demonstrated.

The threat levels identified above are the result of an FAA review of existing studies on the subject of HIRF, in light of the ongoing work of the Electromagnetic Effects Harmonization Working Group of the Aviation Rulemaking Advisory Committee.

As discussed above, these special conditions are applicable to Learjet Model 35, 35A, 36, and 36A airplanes modified by Genesis 3 Engineering, Inc. Should Genesis 3 Engineering, Inc. apply at a later date for a STC to modify any other model included on Type Certificate No. A10CE to incorporate the same or similar novel or unusual design feature, these 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 Learjet Model 35, 35A, 36, and 36A airplanes modified by Genesis 3 Engineering, Inc. 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 procedure in several prior instances and has been derived without substantive change from those previously issued. 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 authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the supplemental type certification basis for the Learjet Model 35, 35A, 36, and 36A airplanes modified by Genesis 3 Engineering, Inc.

1.Protection from Unwanted Effects of HIRF.Each electrical and electronic system that performs critical functions must be designed and installed to ensure that the operation and operational capability of these systems to perform critical functions are not adversely affected when the airplane is exposed to high-intensity radiated fields.

2. For the purpose of these special conditions, the following definition applies:

Critical Functions:Functions whose failure would contribute to or cause a failure condition that would prevent the continued safe flight and landing of the airplane.

This amendment adopts a new AD for the specified Bell model helicopters modified with an AAI STC SH2820SO or with AAI PMA reservoir assembly or adapter installed. This action requires a one-time inspection of the adapter counter bore depth. If the counter bore depth dimension exceeds .860 inch, this AD requires replacing the reservoir assembly and adapter with airworthy parts before further flight. This amendment is prompted by a report of a rupture of an adapter on a Bell Model 412 helicopter during nitrogen charging. The assembly adapter ruptured, and the pressurized nitrogen gas jetted out of the nitrogen bottle in the helicopter and caused significant damage. The rupture occurred because the adapter had inadequate fracture strength because the counter bore was too large, which produced insufficient wall thickness for the operating pressures. This condition, if not corrected, could result in rupture of an adapter, uncontrolled jetting of pressurized gas from the nitrogen bottle, and subsequent injury to occupants or damage to the helicopter.

We have reviewed AAI Alert Service Bulletin No. AA-05005, Revision A, dated June 27, 2005 (ASB), for Bell Model 212/412/412EP helicopters with the reservoir assembly, part number (P/N) 212-372-050, and the adapter, P/N 212-371-002, installed. The ASB describes procedures for discharging the floatation system, inspecting the counter bore depth of the adapter (dimension D), recharging the floatation system, and specifies replacing the assembly and adapter if the dimension D exceeds .860. The ASB states that the adapter located between the neck of the reservoir assembly and the inflation valve may have been manufactured incorrectly resulting in a weakened condition that could lead to the rupture of the adapter fitting while under pressure.

This unsafe condition is likely to exist or develop on other helicopters of the same type designs modified with AAI STC SH2820SO or that has the affected PMA P/N installed. Therefore, this AD is being issued to prevent the rupture of an adapter, uncontrolled jetting of pressurized gas from the nitrogen bottle, and subsequent injury to occupants or damage to the helicopter. This AD requires the following:

• Within 24 hours time-in-service (TIS) or before the next emergency floatation supply bottle nitrogen charging, whichever occurs first, for the reservoir assembly, P/N 212-372-050, and the adapter, P/N 212-371-002, do the following:

• Discharge the nitrogen from the reservoir assembly.

• Remove the valve assembly and air line from the adapter, and inspect the dimension D.

• If the dimension D does not exceed .860 inch, recharge the floatation system.

• If the dimension D exceeds .860 inch, before further flight, replace the reservoir assembly and the adapter with airworthy parts.

Accomplish the actions in accordance with the specified portions of the service bulletin described previously. The short compliance time involved is required because the previously described critical unsafe condition can damage the helicopter and injure its occupants as well as render the floatation system inoperative. Therefore, inspecting the counter bore depth of the adapter is required within 24 hours TIS or before the next emergency floatation supply bottle nitrogen charging, whichever occurs first. Because this is a very short compliance time, this AD must be issued immediately.

Since a situation exists that requires the immediate adoption of this regulation, it is found that notice and opportunity for prior public comment hereon are impracticable, and that good cause exists for making this amendment effective in less than 30 days.

We estimate that this AD will affect 100 helicopters. Discharging the system, inspecting the dimension D of the adapter, replacing the reservoir assembly and adapter, and recharging the system will take about 2 work hours at an average labor rate of $65 per work hour. Required parts will cost about $5095 to replace the reservoir assembly and adapter per helicopter. Based on these figures, we estimate the total cost impact of the AD on U.S. operators to be $522,500, assuming the reservoir assembly and adapter must be replaced on the entire fleet.

This AD is a final rule that involves requirements that affect flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to submit any written data, views, or arguments regarding this AD. Send your comments to an address listed underADDRESSES. Include “Docket No. FAA-2005-22634; Directorate Identifier 2005-SW-12-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the AD. We will consider all comments received by the closing date and may amend the AD in light of those comments. We will post all comments we receive, without change, tohttp://dms.dot.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this AD. Using the search function of our docket Web site, you can find and read the comments to any of our dockets, including the name of the individual who sent the comment. You may review the DOT's complete Privacy Act Statement in theFederal Registerpublished on April 11, 2000 (65 FR 19477-78), or you may visithttp://dms.dot.gov.

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

For the reasons discussed above, I certify that the regulation:

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

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

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

We prepared an economic evaluation of the estimated costs to comply with this AD. See the DMS to examine the economic evaluation.

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.

You may examine the airworthiness directive (AD) docket on the Internet athttp://dms.dot.govor 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 theADDRESSESsection.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to all Boeing Model 737-100, -200, -200C, -300, -400, and -500 series airplanes. That NPRM was published in theFederal Registeron June 3, 2005 (70 FR 32534). That NPRM proposed to require operators to examine the airplane's maintenance records to determine if the main landing gear (MLG) has been overhauled and if Titanine JC5A (also known as Desoto 823E508) corrosion-inhibiting compound (“CIC”) was used during the overhaul. For airplanes for which the maintenance records indicate that further action is necessary, or for airplanes on which CIC JC5A may have been used during manufacture, that NPRM proposed to require a one-time detailed inspection for discrepancies of certain components of the MLG, and corrective action if necessary.

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

One commenter expresses support for the NPRM.

The commenter requests that we revise paragraph (g)(2) to specify that during the records examination, no further action is required by paragraph (g)(2) or paragraph (h) of the NPRM if CIC JC5A was not used on the trunnion pins or other parts of the MLG during the last overhaul. The NPRM merely stated “during the overhaul.” The commenter states that any damage which may have resulted from the use of CIC JC5A at overhauls prior to the last overhaul would have been detected and corrected at the last overhaul, thus any record review of overhauls prior to the last overhaul is unnecessary. The commenter further states that only the last overhaul is of interest in any records examination, and a change to specify the last overhaul would minimize labor expenditure for records research. Furthermore, the commenter states that the change would give paragraph (g)(2) and paragraph (h)(2) a similar structure.

We agree with the commenter for the stated reasons. During each MLG overhaul, all the grease is removed and discrepancies are corrected. Thus, only the most recent overhaul is relevant to the actions in paragraph (g)(2). We have revised paragraph (g)(2) of the final rule to include the words “most recent overhaul.”

The commenter requests that the term “aircraft maintenance records” be clarified in the final rule. The commenter states that the actual records do not contain detailed information about which corrosion-inhibiting compound was used to overhaul the MLG. According to the commenter, operators can only review the MLG component maintenance manual (CMM) and any associated documents to determine if Titanine JC5A CIC was ever used during overhaul. The commenter believes that a reference to the CMM should be specifically stated in the final rule.

We do not agree with the commenter. The NPRM used the phrases “airplane maintenance records,” and “airplane records,” which is consistent with the wording in Section 121.380 (“Maintenance Recording Requirements”) of the Federal Aviation Regulations (14 CFR 121.380). That regulation defines the maintenance recording requirements for certificate holders. The terms, as used in the NPRM, are not meant to imply that determination of the compound used must be determined from the airplane-level document; there may be other supporting documents that constitute part of “airplane maintenance records” or “airplane records.” Examples of such supporting documents include maintenance program documentation and maintenance task cards. We have not changed the final rule in this regard.

The commenter requests more precise directions for cleaning/removing CICJC5A from the three components and other bearings, bushings, and lugs that must be cleaned. The commenter would like to know which cleaning products should be used and if there are any cleaning products that should not be used. The commenter also requests information about the dates during which CIC JC5A was an approved substitute for Boeing Material Specification (BMS) 3-37 grease.

The comments do not pertain to the substance of the proposed rule and are best directed to the manufacturer. Any alternative procedures to the actions in this final rule may be used only if approved as an alternative method of compliance according to paragraph (l) of this AD.

We have simplified paragraph (i)(2) of the final rule by referring to the “Alternative Methods of Compliance (AMOCs)” paragraph for repair methods.

To meet the requirements of the Office of the Federal Register for materials incorporated by reference, we have clarified paragraph (f) of the final rule to refer to the applicable service bulletin as “Boeing Service Bulletin 737-32A1367, Revision 1, dated December 23, 2004,” rather than “Boeing Alert Service Bulletin * * * .” Revision 1 of this service bulletin is not an alert service bulletin.

We have revised the wording in paragraph (h)(1)(i) of the final rule to clarify the compliance time to refer to the “date of issuance of the original standard airworthiness certificate or the date of issuance of the original export certificate of airworthiness,” rather than “the date of issuance of the original airworthiness certificate or the date of issuance of the original standard export certificate of airworthiness, whichever occurs later.” We find that the revised wording is more precise.

We have revised this action to clarify the appropriate procedure for notifying the principal inspector before using any approved AMOC on any airplane to which the AMOC applies.

We have carefully reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously. 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 3,132 airplanes of the affected design in the worldwide fleet. The following table provides the estimated costs for U.S. operators to comply with this AD.

For airplanes that require a detailed inspection, we estimate that the inspection would take about 3 work hours per airplane to accomplish, at an average labor rate of $65 per work hour. Based on these figures, we estimate that the detailed inspection would cost about $195 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 and placed it in the AD docket. See theADDRESSESsection for a location to examine the regulatory evaluation.

You may examine the AD docket on the Internet athttp://dms.dot.govor 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 theADDRESSESsection.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to certain Boeing Model 757-200, -200CB, and -200PF series airplanes. That NPRM was published in theFederal Registeron March 30, 2005 (70 FR 16175). That NPRM proposed to require an inspection of each trailing edge flap transmission assembly to determine the part number and serial number, and related investigative and corrective actions and part marking if necessary.

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

One commenter, the manufacturer, concurs with the content of the NPRM.

Two commenters request that we revise the NPRM to allow a maintenance records check to determine if any affected transmission assembly is installed upon an airplane. One commenter states that it tracks all its flap transmission assemblies by part number (P/N) and serial number (S/N) in order to record all time and cycle information for each of these units. The commenter asserts that since Boeing Special Attention Service Bulletin (SASB) 757-27-0150, dated December 9, 2004, specifies all suspect flap transmission assemblies by P/N and S/N, it should be allowed to use these data to demonstrate compliance with the NPRM. Another commenter states that it recently updated the P/N and S/N installation records for all transmission assembly positions affected by the NPRM and that these records show that none of the affected assemblies are installed on its airplanes. The second commenter states that the wording of the NPRM prevents it from using these data to demonstrate compliance with the NPRM and requires it to physically view all P/Ns on its airplanes. Since Boeing SASB 757-27-0150 specifies 75 hours per airplane to gain access, inspect, and close access for the eight transmission assemblies, the second commenter asserts that this proposed requirement is excessively onerous.

We agree with this request. If an operator can clearly demonstrate that the maintenance records for an airplane establish that no suspect transmission assembly is installed on that airplane, the records check is acceptable for compliance with the P/N and S/N inspection requirement of the NPRM. Therefore, we have revised paragraph (f) in this AD to permit a maintenance records check instead of the required inspection.

One commenter requests that we revise the NPRM to allow replacing a transmission assembly having a defective output gear with a compliant transmission. The commenter states that it does not have the means to repair and test the transmission itself and anticipates sending any suspect transmission to a repair facility for inspection, test, and marking.

We agree with this request. Since the intent of the AD is to remove defective transmission assembly output gears from service, this can be accomplished either by replacing the defective output gear with a compliant output gear or replacing the entire transmission assembly with a compliant transmission assembly. Therefore, we have revised paragraph (f) of this AD to permit “replacing the entire transmission assembly with a new or serviceable flap transmission assembly.”

One commenter requests that we change the number of affected transmission assemblies shown in the NPRM. The commenter states that there are four different transmission configurations, each having S/Ns 1 through 325 inclusive, which yields a total of 1,300 affected transmission assemblies rather than 325.

We agree with this request for the reason stated by the commenter. Therefore, we have revised the number of suspect transmission assemblies from 325 to 1,300 in this AD.

One commenter requests that we revise the applicability of the NPRM to include only those airplanes with transmission assemblies installed that have the affected P/Ns and S/Ns. The commenter suggests that the applicability could be revised to read, instead of the current wording, “This AD applies to Boeing Model 757-200, -200CB, and -200PF series airplanes, with part number 251N4050-37, -38, -39, or -40 having S/Ns 1 through 325 inclusive, or part number 251N4022-28, -29, -30 and -31 having S/Ns 1 through 325 inclusive.”

We do not agree with this request. We have no means of ensuring that every trailing edge flap transmission assembly with part numbers 251N4050-37, -38, -39, and -40; and 251N4022-28, -29, -30 and -31; each having S/Ns 1 through 325 inclusive; can be located for inspection without canvassing all Model 757-200, -200CB, and -200PF series airplanes. We have not changed this AD in this regard. However, as previously discussed, we have revised this AD to permit a maintenance records check to locate suspect transmission assemblies instead of the required inspection, which should greatly reduce the burden to operators.

Two commenters request that we revise the Costs of Compliance section of the NPRM to increase the estimated number of work hours needed to accomplish the required actions. One commenter states that the 1 work hour specified to accomplish the inspection of eight trailing edge flap transmission assemblies is considerably less than the 75 work hours to accomplish the task specified by Boeing SASB 757-27-0150. The commenter states that the NPRM does not accurately reflect the costs forthe amount of work required. A second commenter states that the NPRM does not assess the impact of the corrective action. The second commenter states that unscheduled maintenance in heavy maintenance facilities would be required to perform any needed repairs for some airplanes. The second commenter states that, in cases where repair is needed, the time required to gain and close up access and for return-to-service actions is considerably greater than the time specified by the NPRM and would result in unscheduled time out-of-service. Both commenters assert the cost to accomplish the requirements shown in the NPRM should more closely reflect the labor costs specified by Boeing SASB 757-27-0150 and assert that the discrepancy in the cost estimates places undue hardship on operators.

In reply to the first commenter: We acknowledge that the amount of work estimated by the Boeing service bulletin to open and close the access ways is considerable. However, the cost information specified describes only the direct costs of the specific actions required by this AD. Based on the best data available, the manufacturer provided the number of work hours necessary to do the required inspection; one (1) work hour in this case. This number represents the time necessary to perform only the actions actually required by this AD. We recognize that, in doing the actions required by an AD, operators may incur additional costs in addition to the direct costs. The cost analysis in AD rulemaking actions, however, typically does not include additional costs such as the time required to gain access and close up, time necessary for planning, or time necessitated by other administrative actions. Those additional costs may be significant, but may also vary greatly among operators, which makes them almost impossible to calculate.

In reply to the second commenter: The economic analysis of an AD is limited to the cost of actions that are actually required and does not consider the costs of conditional actions, such as repairing a crack detected during a required inspection (“repair, if necessary”). Such conditional repairs would be required—regardless of AD direction—to correct an unsafe condition identified in an airplane and to ensure that the airplane is operated in an airworthy condition, as required by the Federal Aviation Regulations. In this case, we included the manufacturer's estimate of 20 work hours to remove a transmission assembly; remove, inspect, and reassemble the transmission output gear; and reinstall the transmission assembly, but we have no way of knowing how many transmission assemblies will require these actions or what additional actions will be needed to retrofit one transmission assembly. Therefore, we can't provide any further assessment of the total cost impact of the corrective action.

We have not changed this AD with regard to these comments. However, as previously discussed, we have revised paragraph (f) of this AD to specify that a maintenance records check is acceptable instead of the required inspection. A maintenance records check could greatly reduce the burden to operators.

One commenter requests that we re-evaluate the probability of a flap skew event and the classification of this condition as an “unsafe condition.” The commenter states that it has surveyed its own data, which indicate that it has 252 affected transmission assemblies, and that all of these units had new torque limiters installed because of the requirements of AD 2000-04-18, amendment 39-11601 (65 FR 10693). The commenter states that during this retrofit process, 221 of the 252 transmission assemblies were overhauled and had their output gears checked for defects per the component maintenance manual (CMM). The commenter asserts that, since all operators of the affected airplanes are required to accomplish AD 2000-04-18, the commenter's experience might be taken as typical of the industry's experience, which could mean the quantity of defective output gears has been substantially reduced. The commenter asserts this could lead us to decide that no unsafe condition exists and, therefore, withdraw the NPRM.

We do not agree with this request for the following reasons:

• The commenter assumes that most affected airplanes are no longer subject to the unsafe condition due to industry compliance with AD 2000-04-18, which specifies Boeing Service Bulletin 757-27A0127 as a source of service information. However, AD 2000-04-18 is applicable only to airplanes having line numbers from 1 through 796 inclusive, whereas this AD is applicable to airplanes having line numbers from 1 through 979 inclusive. This leaves 183 airplanes not covered by AD 2000-04-18.

• AD 2000-04-18 requires replacing the transmission assemblies with new assemblies incorporating new, improved torque limiters or replacing the torque limiters in the transmission assemblies with new, improved torque limiters, as provided in CMM Chapter 27-51-13. The commenter asserts that it is likely that all operators who accomplished this retrofit checked the transmission output gears for defects at the same time. We cannot assume that all operators checked the output gears during this retrofit, since checking the output gears was not specified by the CMM as a required part of the retrofit process.

• AD 2000-04-18 requires that retrofitted transmission assemblies having P/N 251N4050-37, -38, -39, or -40 be reidentified as P/N 251N4022-28, -29, -30 or -31, respectively. As already discussed, the commenter asserts that such retrofitted and re-identified transmission assemblies no longer are subject to the unsafe condition. However, Boeing Service Bulletin 757-27-0150 identifies the modified assemblies having those new P/Ns 251N4022-28, -29, -30 and -31, and having S/Ns 1 through 325 inclusive, as possibly having suspect output gears.

• The commenter suggests that its experience might be taken as typical for the industry and again assumes that most affected transmissions are no longer affected by the unsafe condition. As discussed earlier, we determined that, instead of 325 suspect transmission assemblies, there are actually 1,300 suspect transmission assemblies. This larger number indicates the unsafe condition represented by the faulty transmission assemblies could be more extensive than represented in the NPRM.

Our reasoning has led us to determine that the possibility of a flap skew event remains a significant unsafe condition for an unacceptable number of airplanes. We have not changed this AD in this regard.

We have revised this action to clarify the appropriate procedure for notifying the principal inspector before using any approved AMOC on any airplane to which the AMOC applies.

We have carefully reviewed the available data, including the comments that have been received, 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 979 airplanes of the affected design in the worldwide fleet. This AD will affect about 644 airplanes of U.S. registry.

It will take approximately 1 work hour per airplane to accomplish the required inspection at an average labor rate of $65 per work hour. Based on this figure, the cost impact of the AD on U.S. operators is estimated to be $41,860, or $65 per airplane.

Removal of a transmission assembly; removal, inspection, and reassembly of the transmission output gear; and reinstallation of the transmission assembly; if required; will take about 20 work hours per transmission assembly, at an average labor rate of $65 per work hour. Required parts will cost about $325 per transmission output gear. Based on these figures, we estimate the cost of replacement is $1,625 per transmission output assembly (there are 8 transmission output assemblies per airplane and 1,300 suspect assemblies).

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 and placed it in the AD docket. See theADDRESSESsection for a location to examine the regulatory evaluation.

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 theADDRESSESsection. This docket number is FAA-2005-20137; the directorate identifier for this docket is 2004-NM-96-AD.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to certain Boeing Model 757 series airplanes. That NPRM was published in theFederal Registeron January 28, 2005 (70 FR 4052). That NPRM proposed to require repetitive inspections for loose or damaged components of the support brackets and associated fasteners for the hydraulic lines located in the nacelle struts, and any related investigative and corrective actions.

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

Two commenters concur with the proposed AD as written.

Two commenters ask that the compliance time for the initial and repetitive inspections specified in the proposed AD be extended.

One commenter asks that the compliance time for the initial and repetitive inspections be extended to 6,000 flight hours or 24 months, whichever is first. The proposed AD specifies initial and repetitive inspections at intervals not to exceed 6,000 flight hours or 18 months. The commenter adds that, based on access, labor hour requirements, and the nature of the detailed inspections, this type of work aligns with the airline's heavy maintenance program, which is calendar-based and FAA-approved at 24-month intervals. The commenter states that, because the proposed inspections are fatigue-related, an equivalent level of safety is maintained by extending the proposed calendar compliance time.

A second commenter asks that the compliance time for the repetitive inspections be changed to 7,500 flight hours or 24 months. The commenter states that the proposed AD requires the initial inspection to be accomplished within 18 months or 6,000 flight hours, regardless of total flight cycles/hours on the airplane. The commenter adds that the safety concern addressed by the proposed AD appears to be age-related. Additionally, consideration should be given to whether or not, and when, the work described in Boeing Service Bulletin 757-29-0043, dated June 21, 1990 (the concurrent service bulletin referenced in the proposed AD) was accomplished. The commenter also states that the initial and repetitive inspection interval in the proposed AD coincides with the published Material Review Board's most conservative periodic check (PCK) interval; several operators, including the commenter, have escalated that PCK interval to 24 months. The commenter concludes that attempting to accomplish the proposed actions within the proposed compliance time would be expensive; extending the compliance time would allow operators who have escalated the PCK interval to accomplish the inspections during maintenance checks.

We agree to extend the compliance time for the initial and repetitive inspections to 6,000 flight hours or 24 months, whichever is first. The fatigue-related failures are a function of airplane flight hours and flight cycles, not a direct function of calendar time. Extending the compliance time will continue to provide an equivalent level of safety, as noted by the commenter. However, we do not agree to extend the compliance time to 7,500 flight hours or 24 months; the 6,000-flight-hour compliance time was based on service history of part failures and an engineering fatigue analysis by the original equipment manufacturer (OEM). We have changed paragraph (f) of this AD to reflect the revised compliance time.

Two commenters ask for changes to the Costs of Compliance section.

One commenter states that the estimate in the cost section in the proposed AD specifies that it wouldtake 35 work hours to accomplish the inspection required by paragraph (f) of the proposed AD, but the commenter estimates that it would take 47 work hours to accomplish that inspection. The commenter adds that the proposed AD also requires accomplishing the concurrent actions specified in paragraph (g) of the proposed AD and referenced in Boeing Service Bulletin 757-29-0043, dated June 21, 1990; however, the cost for those actions is not included in the Costs of Compliance section. The commenter concludes that the cost for the inspections was underestimated and the cost for the concurrent actions was omitted.

A second commenter asks that we change the Costs of Compliance section in the proposed AD to specify that the number of work hours necessary to accomplish the proposed inspection and the concurrent actions would be determined by operators on a case-by-case basis.

We do not agree to change the work hours in this AD or specify that operators will determine the number of work hours necessary for accomplishing the actions. The number of work hours represent the time necessary to perform only the actions actually required by the AD. The actions in an AD normally reflect only the costs of the specific required action (inspection) based on the best data available from the manufacturer; however, this AD also includes the time required to gain access and close up. The cost analysis in AD rulemaking actions typically does not include incidental costs such as the time necessary for planning, or time necessitated by other administrative actions. Those incidental costs, which may vary significantly among operators, are almost impossible to calculate. We have made no change to the AD in this regard.

We do agree to add the cost for the concurrent actions since those actions were inadvertently omitted from the NPRM. We have added a new paragraph to the Costs of Compliance section which estimates the work hours and cost per airplane for accomplishing the concurrent actions.

One commenter, the OEM, asks that we change the statement of unsafe condition specified in the proposed AD. The statement of unsafe condition is as follows: “We are proposing this AD to prevent flammable fluids from leaking into the interior compartment of the nacelle struts where ignition sources exist, which could result in the ignition of flammable fluids and an uncontained fire.” The commenter states that the damage to the Pratt Whitney strut has not caused any damage to barriers between the upper strut compartment and any other compartment; the hydraulic tube is clamped to frames, not to a vapor barrier. The commenter adds that the upper strut compartment is designated as a flammable leakage zone, and therefore, to the greatest extent possible, all ignition sources have been eliminated. The commenter notes that the unsafe condition addressed by the referenced service information does not result in any zone barriers being damaged. The commenter concludes that any leakage of flammable fluids will not come in contact with ignition sources; additionally, the upper strut compartment has drainage provisions to prevent the accumulation of flammable fluids.

We agree to change the description of the unsafe condition. The commenter is accurate in the statement that any leakage of flammable fluids will not come in contact with ignition sources because the upper strut compartment has drainage provisions to prevent the accumulation of flammable fluids. Due to the design of the system installations in the strut compartments, an additional failure would have to occur to result in the ignition of flammable fluids. Additional failures include shorting and sparking of electrical wires in either the strut upper fairing cavity or torque box, failure of seals that would allow flammable fluids to migrate to compartments with ignition sources, or overheating of the pneumatic ducts beyond auto-ignition temperatures. The description of the unsafe condition has been changed throughout the AD.

One commenter states that the proposed AD requires accomplishing the actions specified in two different service bulletins, which are referenced in paragraphs (f) and (g) of the proposed AD. The commenter is concerned because the part numbers specified in those two bulletins are different. The commenter recommends that the proposed AD be revised to specify that the part numbers listed in either service bulletin are acceptable configurations and fully comply with the actions specified in the proposed AD.

We acknowledge and provide clarification for the commenter's concern. The OEM verified with us that the different part numbers specified in the referenced service bulletins are due to one series of parts having pilot holes and the other series not having pilot holes. Therefore, the part numbers identified in either service bulletin are acceptable configurations and fully comply with the AD requirements for the modifications. We have added a note to the AD for clarification. In addition, once a revision to the service bulletins has been issued by the manufacturer, and reviewed and accepted by us, we will approve the use of either series of part numbers as an acceptable alternative method of compliance (AMOC) according to paragraph (j) of this AD.

One commenter asks that paragraph (i) of the proposed AD, titled “Repair Information,” be clarified concerning the requirement to obtain repair approval per the Manager, Seattle Aircraft Certification Office (ACO). The commenter questions if this approval is required for all Boeing-assisted repairs to the engine strut frames, or if the approval is only required for Boeing-assisted repairs found during the inspections required by the proposed AD.

We interpret the commenter's question to be whether damage found inside the strut that is not found during the inspection required by the AD requires Seattle ACO approval of the repair method. Our response is that only repairs of hardware damage found during the inspection required by the AD for which the service bulletin specifies a Boeing-assisted repair per the referenced service information need be submitted to the Seattle ACO for approval. If specific cases develop and the repair method is not apparent to the operator, contact the Seattle ACO for guidance. We have not changed the AD in this regard.

One commenter states that the following parts issues represent an undue burden on operators by needlessly restricting operator action, and asks that these issues be resolved. Those issues and our responses are as follows:

1. The commenter asks that the proposed AD be changed to allow dimensional drawings or provisions for operators to fabricate acceptable substitute brackets. The commenter states that, since parts are not available from the OEM, operators must fabricate the brackets and re-use the fasteners and rubber blocks, as necessary.

We do not agree that operators can be allowed to fabricate their own parts. Operators would be required to fabricate parts by using an approved design, and we cannot authorize this withoutreviewing the operators' design data. The manufacturer has indicated that the parts required are readily available; therefore, obtaining them should not be a problem. However, should parts not be available in a timely manner, operators may provide the design data to us and request approval of an AMOC per paragraph (j) of this AD.

2. The commenter asks that we revise Section II of Boeing Service Bulletin 757-29-0064 (referenced in the proposed AD as the appropriate source of service information for accomplishing the inspections for Model 757-200 and -200PF series airplanes) to add a provision for providing brackets and hardware for all stations. The commenter states that Section II of the service bulletin contains material information that is inadequate. The commenter has found that only parts necessary for station 149.5 are included in that section; however, the service bulletin specifies inspecting and replacing parts at stations 102.1, 128.0, 149.5, 161.35, and 180.0 on the left and right sides of the airplane. In addition, the commenter found damaged/worn parts at other stations.

3. The commenter asks that we require brackets and hardware to be stocked and provided by Boeing until terminating action is developed. The commenter states that parts for all stations are not readily available from the OEM or other suppliers.

We do not agree to advise Boeing to revise Section II of the referenced service bulletin, or to require that Boeing provide parts until terminating action is developed. The technical content of the referenced service bulletin is correct and contains adequate information and procedures to accomplish the repetitive inspections. Therefore, we have determined that it is not necessary for the manufacturer to revise the service bulletin before issuance of this AD. In addition, we have no regulatory basis to require the type certificate holder to provide the parts necessary to comply with the corrective action specified in the AD. The manufacturer has indicated that the parts required are readily available; therefore, obtaining them should not be a problem. However, under the provisions of paragraph (j) of this AD, affected operators may request approval of an AMOC.

One commenter, the OEM, asks that the appropriate sections in the proposed AD be changed to reference Revision 1 of Boeing Service Bulletins 757-29-0064 and 757-29-0065. (Boeing Service Bulletins 757-29-0064 and 757-29-0065, both dated February 29, 2004, are referenced in the NPRM as the appropriate sources of service information for accomplishing the repetitive inspections.) The commenter states that those service bulletins are currently being revised and are expected to be released soon.

We cannot accept as-yet unpublished service documents for compliance with the requirements of an AD. Referring to an unavailable service bulletin in an AD violates Office of the Federal Register regulations for approving materials that are incorporated by reference. We have not changed the AD regarding this issue because the service bulletins have not been revised and we cannot delay the final rule to wait for revisions to be issued. However, under the provisions of paragraph (j) of this AD, affected operators may request approval to use a later revision of the referenced service bulletin as an AMOC.

We have changed this AD to clarify the appropriate procedure for notifying the principal inspector before using any approved AMOC on any airplane to which the AMOC applies.

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

This AD affects about 432 airplanes worldwide and 377 airplanes of U.S. registry.

The inspection/test takes about 35 work hours per airplane (including access and close-up), at an average labor rate of $65 per work hour. Based on these figures, the estimated cost of the inspection/test for U.S. operators is $857,675, or $2,275 per airplane, per inspection/test cycle.

The concurrent actions would take about 38 work hours per airplane, at an average labor rate of $65 per work hour. Required parts cost is minimal. Based on these figures, the estimated cost of the concurrent actions is $2,470 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 and placed it in the AD docket. See theADDRESSESsection for a location to examine the regulatory evaluation.

June 10, 2004, the FAA issued AD 2004-13-01, Amendment 39-13681 (69 FR 34560, June 22, 2004). That AD requires initial and repetitive ultrasonic inspections of propeller hubs, P/N 660709201, installed on airplanes, and for hubs and propellers in storage, initial ultrasonic inspection of propeller hubs before placing in service. That AD was the result of the manufacturer's reevaluation of potential hub failure on Type R321/4-82-F/8, R324/4-82-F/9, R333/4-82-F/12, and R334/4-82-F/13 propeller assemblies. That condition, if not corrected, could result in propeller hub failure due to cracks in the hub, which could result in loss of control of the airplane.

Since we issued AD 2004-13-01, the Civil Aviation Authority (CAA), which is the airworthiness authority for the United Kingdom (U.K.), recently notified the FAA that an unsafe condition might exist on Dowty Aerospace Propellers Type R334/4-82-F/13 propeller assemblies installed on CASA 212 airplanes. The CAA advises that they have received a report of a hub separation of a Type R334/4-82-F/13 propeller assembly installed on a CASA 212 airplane. This AD requires the same initial and repetitive inspections as specified in AD 2004-13-01, but reduces the compliance intervals for the initial and repetitive inspections on Type R334/4-82-F/13 propeller assemblies installed on CASA 212 airplanes. We intend the actions specified in this AD to prevent propeller hub failure due to cracks in the hub, which could result in loss of control of the airplane.

We have reviewed and approved the technical contents of Dowty Aerospace Propellers Alert Mandatory Service Bulletin (MSB) No. 61-1119, Revision 4, dated September 14, 2005, that specifies initial and repetitive ultrasonic inspections of the rear wall of the rear half of the propeller hub for cracks on Type R334/4-82-F/13 propeller assemblies. The CAA classified this service bulletin as mandatory and issued CAA UK AD No. G-2005-0027, dated September 8, 2005, to assure the airworthiness of these Dowty Aerospace Propellers in the U.K.

Although Appendix A of Alert MSB No. 61-1119, Revision 4, dated September 14, 2005, requires reporting the inspection data to Dowty Aerospace Propellers, this AD requires that you report the data to the Boston Aircraft Certification Office of the FAA. Also, the Accomplishment Instructions 3.A.(1) of Alert MSB No. 61-1119, Revision 4, dated September 14, 2005, allows you to use Appendix A or Appendix D of that MSB, this AD requires that you use Appendix A of that MSB.

This propeller model is manufactured in the U.K. and is type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Under this bilateral airworthiness agreement, the CAA has kept the FAA informed of the situation described above. We have examined the findings of the CAA, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.

The unsafe condition described previously is likely to exist or develop on other Dowty Aerospace Propellers Type R321/4-82-F/8, R324/4-82-F/9, R333/4-82-F/12, and R334/4-82-F/13 propeller assemblies of the same type design. We are issuing this AD to prevent propeller hub failure due to cracks in the hub, which could result in loss of control of the airplane. This AD requires:

• Within 10 flight hours (FH) time-in-service (TIS) or 20 days after the effective date of this AD, whichever occurs earlier, performing an initial ultrasonic inspection of the rear halves of propeller hubs P/N 660709201, that are installed in Type R334/4-82-F/13 propeller assemblies, and;

• Within 50 FH TIS or 60 days after the effective date of this AD, whichever occurs earlier, performing an initial ultrasonic inspection of the rear halves of propeller hubs P/N 660709201, that are installed in Type R321/4-82-F/8, R324/4-82-F/9, and R333/4-82-F/12 propeller assemblies, and;

• Within 300 FH time-since-last-inspection (TSLI) performing a repetitive ultrasonic inspection of the rear halves of propeller hubs P/N 660709201, that are installed in Type R334/4-82-F/13 propeller assemblies, and;

• Within 1,000 FH TSLI performing a repetitive ultrasonic inspection of the rear halves of propeller hubs P/N 660709201, that are installed in Type R321/4-82-F/8, R324/4-82-F/9, and R333/4-82-F/12 propeller assemblies, and;

• If not already done, performing an ultrasonic inspection of the rear halves of propeller hubs P/N 660709201, that are installed in Type R321/4-82-F/8, R324/4-82-F/9, R333/4-82-F/12, and R334/4-82-F/13 propeller assemblies that are in storage before installing the propeller assembly onto an airplane.

You must use the service information described previously to perform the actions required by this AD.

Since an unsafe condition exists that requires the immediate adoption of this AD, we have found that notice and opportunity for public comment before issuing this AD are impracticable and that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety. We did not precede it by notice and an opportunity for public comment; however, we invite you to send us any written relevant data, views, or arguments regarding this AD. Send your comments to an address listed underADDRESSES.Include “AD Docket No. 2001-NE-50-AD” in the subject line of your comments. If you want us to acknowledge receipt of your mailed comments, send us a self-addressed, stamped postcard with the docket number written on it; we will date-stamp your postcard and mail it back to you. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify it. If a person contacts us verbally, and that contact relates to a substantive part of this AD, we will summarize the contact and place the summary in the docket. We will consider all comments received by the closing date and may amend the AD in light of those comments.

You may examine the AD Docket (including any comments and service information), by appointment, between 8 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays. SeeADDRESSESfor the location.

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

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

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

For the reasons discussed above, I certify that the regulation:

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

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

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

We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed underADDRESSES. Include “AD Docket No. 2001-NE-50-AD” in your request.

Federal RegisterDocument 2005-21873 published on Friday July 29, 2005 (70 FR 43742), modified Class D and Class E Airspace at Salina Municipal Airport, KS. The legal descriptions of these airspace areas used outdated and incorrect information. This action corrects those errors.

On August 2, 2005, the FAA proposed to establish Class E3 airspace at Riverside March Field, CA. Class E3 airspace areas are designated as arrival extensions to a Class C surface area. Class E arrival extensions are primarily designated to provide additional controlled airspace ancillary to a surface area to protect instrument operations for the primary airport, without imposing additional communications burdens on airspace users. This action is necessary at Riverside March Field to provide controlled airspace for Category E aircraft conducting circling maneuvers in conjunction with published Standard Instrument Approach Procedures. Generally, Category E aircraft are very large and/or high performance. These aircraft require additional airspace when conducting circling maneuvers. This action will establish the Class E3 airspace at Riverside March Field.

Interested parties were invited to participate in this rule making proceeding by submitting written comments on the proposal to the FAA. No comments were received. Class E3 airspace is published in Paragraph 6003 of FAA Order 7400.9N dated September 1, 2005, and effective September 16, 2005, which is incorporated by reference in 14 CFR 71.1. The Class E Surface Area airspace designation listed in this document would be published subsequently in this Order.

This amendment to 14 CFR part 71 establishes Class E3 airspace at Riverside March Field, CA.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

On May 25, 2005, the FAA proposed to amend Title 14 Code of Federal Regulations part 71 (14 CFR part 71) by establishing Class E airspace at Eagle, CO (70 FR 32275). The proposed action would provide additional controlled airspace to accommodate the new ILS or LOC DME SIAP at Eagle County Regional Airport, Eagle, CO. Interested parties were invited to participate in this rule making proceeding by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace designations are published in paragraph 6005 of the FAA Order 7400.9N dated September 1, 2005, and effective September 5, 2005, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designations listed in this document will be published subsequently in that order.

This amendment to 14 CFR part 71 establishes Class E airspace at Eagle, CO, by providing additional controlled airspace for aircraft executing the new ILS or LOC DME SIAP at the Eagle County Regional Airport. This additional controlled airspace extending upward from 700 feet or more above the surface is necessary for the containment and safety of IFR aircraft executing this SIAP procedure and transitioning to/from the en route environment.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep the regulations current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Polices and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

On April 18, 2005, the FAA published in theFederal Registera notice of proposed rulemaking to modify Class E airspace at Cheyenne, WY (70 FR 20093). New routes sequences from the en route environment to/from Cheyenne Regional Airport/Jerry Olson Field makes this proposed necessary.

Interested parties were invited to participate in this rule making proceeding by submitting written comments on the proposed to the FAA. No comments were received. Class E airspace designation are published in paragraph 6005 of FAA Order 7400.9N dated September 1, 2005, and effective September 16, 2005, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in that order.

This amendment to 14 CFR part 71 revises Class E airspace at Cheyenne, WY. New IFR routes sequences through this airspace from the en route environment to/from Cheyenne Regional Airport/Jerry Olson Field makes this rules necessary. Additional controlled airspace extending upward from 1,200 feet above the surface is necessary for the safety of IFR aircraft. This rule also corrects an error in the geographic coordinates of the Cheyenne VORTAC and the airport's designation as stated in the Notice of Proposed Rule Making.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The Trafficking Victims Protection Reauthorization Act of 2003 created a requirement that the President promulgate regulations to implement Section 105 of the Trafficking Victims Protection Act of 2000, as amended (“the Act”).

Section 105 of the Act calls for the President to establish an Interagency Task Force to Monitor and Combat Trafficking and a Senior Policy Operating Group consisting of senior officials designated as representatives of the appointed members of the Task Force. By Executive Order 13257, dated February 13, 2002, the President established the President's Interagency Task Force to Monitor and Combat Trafficking in Persons (“the Task Force”), which is chaired by the Secretary of State and includes the Administrator of the United States Agency for International Development, the Attorney General, the Secretary of Labor, the Secretary of Health and Human Services, the Director of Central Intelligence, and the Director of the Office of Management and Budget. Executive Order 13257 lays out the responsibilities of the Task Force including, among other things, coordinating the implementation of the Act. The Secretary of Homeland Security was added to the Task Force by Executive Order 13286 of February 28, 2003. The Task Force created the Senior Policy Operating Group on December 8, 2003, to coordinate agency activities regarding policies, including grants and grant policies, involving the international trafficking in persons and the implementation of the Act. The Trafficking Victims Protection Reauthorization Act of 2003 amended the Trafficking Victims Protection Act, including by setting out the duties of the Senior Policy Operating Group and requiring the President to promulgate regulations to implement Section 105 (22 U.S.C. 7103(f)(5)).

Executive Order 13333 of March 18, 2004 amends Executive Order 13257 and delegates the task of issuing such regulations to the Secretary of State, and instructs the Senior Policy Operating Group to advise the Secretary of State as to what regulations may be necessary to implement Section 105, including such regulations as may be necessary to carry out the sharing of information on all matters relating to grants, grant policies, or other significant actions regarding the international trafficking in persons (Executive Order 13333, section 4(b)).

This rule is exempt from notice-and-comment rulemaking in accordance with 5 U.S.C. 553(a)(2), since it concerns “a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.”

This rule falls outside the definition of “rule” set forth in the Regulatory Flexibility Act (5 U.S.C. 601(2)) and incorporated in Executive Order 13272, Proper Consideration of Small Entities in Agency Rulemaking. Nevertheless, the Department of State has reviewed this rule in accordance with the criteria set forth in the Act (5 U.S.C. 605(b)) and Section 3(b) of the Executive Order, and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities.

This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year and it will not significantly or uniquely affect small governments. Moreover, the rule falls outside the definition of “rule” set forth in the Unfunded Mandates Reform Act of 1996 (2 U.S.C. 658(10), incorporating the definition set forth in the Regulatory Flexibility Act. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a “major rule” as defined by 5 U.S.C. 804(2), for purposes of congressional review of agency rulemaking under the Small Business Regulatory Enforcement Act of 1996 (5 U.S.C. 801-808). This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign based companies in domestic and export markets.

The Department of State does not consider this rule to be a “rule” within the meaning of section 3(d) of Executive Order 12866, Regulatory Planning and Review, nor is it a “significant regulatory action” under Executive Order 12866, section 3(f). While this rulemaking is exempt from Executive Order 12866, the Department has nevertheless reviewed the rule to ensure its consistency with the regulatoryphilosophy and principles set forth in that Executive Order.

This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Nor would the rule have federalism implications warranting the application of Executive Orders 12372 and 13132.

The Department of State has reviewed this rule in light of sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

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

On August 10, 2005, we published a notice of proposed rulemaking (NPRM) entitled, “Drawbridge Operation Regulations; Fox River, Green Bay, WI and DePere, WI,” in theFederal Register(70 FR 46441). We received no letters commenting on the proposed rule. No public meeting was requested, and none was held.

The U.S. Coast Guard, at the request of Wisconsin Department of Transportation (WI-DOT), is modifying the existing operating schedule of the Main Street, Walnut Street, Mason Street (Tilleman Memorial), and George Street highway drawbridges between miles 1.58 and 7.27, and the two Canadian National Railway drawbridges at miles 1.03 and 3.31, respectively, over Fox River. The modified regulation primarily establishes permanent winter operating schedules for each drawbridge in lieu of the annual winter authorization granted by Commander, Ninth Coast Guard District, under the authority of 33 CFR 117.45.

All highway drawbridges are currently required to operate year-round and open on signal, except between the hours of 7 a.m. to 8 a.m., 12 noon to 1 p.m., and 4 p.m. to 5 p.m., Monday through Saturday, except for Federal holidays. This schedule does not apply to public vessels, tugs, and commercial vessels with a cargo capacity of 300 short tons or over, which are passed at all times. As noted, these drawbridges were granted yearly authorization to alter their operating schedules between December 15 and April 1 since approximately 1992.

The railroad drawbridges operated by Canadian National Railway at miles 1.03 and 3.31 over Fox River are swing bridges and currently have no permanent operating regulations, which requires the drawbridges to open on signal for vessels year-round, 24 hours per day. The Ninth Coast Guard District has also granted a yearly winter operating schedule for the railroad drawbridges from December 15 to April 1 each year since approximately 1992.

WI-DOT requested that the Coast Guard implement a permanent winter operating schedule for the Walnut Street and Mason Street (Tilleman Memorial) drawbridges between December 1 and April 1 each year. The Coast Guard expanded the review of all drawbridge regulations on Fox River to include theremaining highway drawbridges and the railroad drawbridges.

The Coast Guard requested drawbridge opening logs be provided for these two bridges for the month of December since the yearly authorization granted by the Coast Guard started on December 15 instead of the requested December 1 start date. The two highway bridges were considered representative of all drawbridges in Green Bay. The logs revealed that the request to begin winter operating hours on December 1 instead of December 15 was reasonable. Local Coast Guard units and representatives of American shipping companies were also consulted regarding the proposed schedule and provided no objections. The Canadian National Railway drawbridges would operate under the same schedules as the highway drawbridges, as requested by the railroad company in the past. During the yearly winter authorization granted for the highway and railroad drawbridges since 1992, the Coast Guard received no complaints regarding this schedule.

No comments or letters were received in response to the NPRM. No changes to the proposed regulation were made.

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

The Coast Guard expects minimal public impact from this rule. The operating hours for recreational vessels does not effectively change since the substantive changes occur during winter months when recreational vessel activity has ceased. Commercial vessels have been required to provide 12-hours advance notice prior to passing drawbridges since approximately 1992 with no reported problems.

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 is because the new schedule for all highway and railroad drawbridges will not significantly affect large commercial vessels during the winter navigation season. Impacts to a substantial number of small entities will not occur since these entities mostly operate during non-winter months.

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 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 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 would not create an environmental risk to health or risk to safety that might 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 anexplanation 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 (32)(e) of the Instruction, from further environmental documentation. This rule involves modifying or establishing drawbridge operation regulations to reflect standard practices for drawbridge operating schedules during winter months on the Great Lakes, and will not have any impact on the environment.

In addition to the publicly available docket materials available for inspection electronically in Regional Material in EDocket, and the hard copy available at the Regional Office, which are identified in theADDRESSESsection above, copies of the State submittal and EPA's technical support document are also available for public inspection during normal business hours, by appointment at the Bureau of Air Management, Department of Environmental Protection, State Office Building, 79 Elm Street, Hartford, CT 06106-1630.

Organization of this document. The following outline is provided to aid in locating information in this preamble.

On the date of enactment of the CAA Amendments of 1990, PM10 areas meeting the qualifications of Section 107(d)(4)(B) of the CAA were designated nonattainment by operation of law. [Seegenerally, 42 U.S.C. 7407(d)(4)(B).] These areas included all former Group I areas and any other areas violating the PM10 standards prior to January 1, 1989. On October 31, 1990 (55 FR 45799), EPA redefined a Group I area for Connecticut as the City of New Haven; the remainder of the State was designated as Group III (areas with a strong likelihood of attaining the PM10NAAQS). Subsequently, after enactment of the CAA on November 15, 1990, New Haven was designated moderate nonattainment for PM10in 56 FR 11101 (March 15, 1991).

The air quality in attainment or unclassifiable areas (Groups II and III) are regulated under the prevention of significant deterioration (PSD) program, under which an area's air quality is not allowed to deteriorate beyond prescribed maximum allowable increases in pollutant concentrations (i.e.,increments). On February 27, 2003, EPA approved revisions to Connecticut's SIP that implement CAA requirements regarding the PSD program.See68 FR 9009.

The PSD program, however, does not apply to nonattainment areas. During the period that New Haven has been classified as nonattainment for PM10, new major sources or major modifications proposing to locate in New Haven have been required to comply with the nonattainment provisions of Subsection 22a-174-3(l) (Permits Requirements for Non-attainment Areas) of the Regulations of Connecticut State Agencies.

On June 23, 2005, the State of Connecticut formally submitted a redesignation request entitled “Redesignation to Attainment and Limited Maintenance Plan for the City of New Haven PM10Nonattainment Area” as a SIP revision. Upon the effective date of today's action, the PM10designation status for the City of New Haven under 40 CFR part 81 will be revised to attainment, and Connecticut's PSD program will become applicable in the New Haven maintenance area. Sections below describe how Connecticut has adequately addressed all of the requirements of the CAA for redesignation of New Haven to attainment, and has qualified for use of a LMP for the first 10-year period (2006 to 2015).

Nonattainment areas can be redesignated to attainment after the area has measured air quality data showing it has attained the NAAQS and when certain planning requirements are met. Section 107(d)(3)(E) of the CAA provides the criteria for redesignation. These criteria are further clarified in a policy and guidance memorandum from John Calcagni, Director, Air Quality Management Division, EPA Office of Air Quality Planning and Standards dated September 4, 1992, Procedures for Processing Requests to Redesignate Areas to Attainment. The criteria for redesignation are:

On August 9, 2001, EPA issued guidance on streamlined maintenance plan provisions for certain moderate PM10nonattainment areas seeking redesignation to attainment (Memo from Lydia Wegman, Director, Air Quality Standards and Strategies Division, entitled “Limited Maintenance Plan Option for Moderate PM10Nonattainment Areas”, hereafter called “the Wegman memo”). The policy described in this guidance includes a statistical demonstration that areas meeting certain air quality criteria will, with a high degree of probability, maintain the standard 10 years into the future. Thus, EPA has already provided the maintenance demonstration for areas that meet the air quality criteria outlined in the policy. It follows that future-year emission inventories for these areas and some of the standard analyses to determine transportation conformity with the SIP are no longer necessary.

To qualify for the LMP option, the area should have attained the PM10NAAQS and the average PM10design values for the area, based upon the most recent five years of air quality data at all monitors in the area, should be at or below the LMP requirement of 98 μg/m3for the 24-hour PM10NAAQS and 40 μg/m3for the annual PM10NAAQS. If an area cannot meet this test, it still qualifies for the LMP option if the average design values (ADVs) of a site are less than their respective site-specific critical design value (CDV). A CDV is the highest possible ADV at which there is a less than 10 percent risk of future violation of the PM10NAAQS. At least five years of data from a monitoring site are required to calculate the site's CDV. Given sufficient site data, a CDV can be found by using a mathematical relationship between the NAAQS, ADV, standard deviation of past design values (a measure of their variability over time), and a selected risk factor (in this case, a 10 percent risk of violation of the PM10NAAQS). For further details about the CDV calculation method, see Attachment A of the Wegman memo. Section 2.2 of the Connecticut SIP submittal shows calculations used to derive the CDV for the Stiles Street monitoring site in New Haven, which is the site currently used to assess whether the city is in attainment with the PM10NAAQS.

The CDV test was used to determine whether the New Haven NAA qualifies for the LMP option because the 2003 24-hour ADVs for the PM10Federal Equivalent Method (FEM) monitor at the Stiles Street site in New Haven exceeded 98 μg/m3for the 24-hour PM10NAAQS. A CDV of 124 μg/m3for the 24-hour standard was calculated for the Stiles Street site using over five years of data from the FEM monitor and over 10 years of data from a Federal Reference Method (FRM) monitor. All 24-hour ADVs for the Stiles Street site, including the ADV for 2003, have remained below this CDV, indicating a very low probability (less than 1 in 10 chance) of exceeding the 24-hour PM10NAAQS in the future. Therefore, this site passes the CDV test and qualifies for the LMP option.

In addition to meeting design value criteria, an area qualifying for the LMP option should expect only limited growth in on-road motor vehicle PM10emissions (including fugitive dust) and should pass a motor vehicle regional emissions analysis test designed to show that expected growth in vehicle miles traveled will not cause the area to exceed the margin of safety for the relevant PM10standard for a given area (in this case, the CDV for the 24-hour PM10NAAQS at the Stiles Street site). In addition to meeting these requirements, the LMP must include an attainment-year emission inventory, assurance of continued operation of an EPA-approved air quality monitoring network, and contingency provisions (See pages A-6 and A-7 of the Wegman memo). Sections below describe how the Connecticut LMP meets each of these requirements.

The transportation conformity rule (40 CFR parts 51 and 93) and the general conformity rule (40 CFR parts 51 and 93) apply to nonattainment areas and maintenance areas covered by an approved maintenance plan. Under either conformity rule, an acceptable method of demonstrating that a federal action conforms to the applicable SIP is to demonstrate that expected emissions from planned actions are consistent with the emissions budget for the area. While EPA's LMP policy does not exempt an area from the need to affirm conformity, it explains that the area may demonstrate conformity without submitting an emissions budget. Emissions budgets in LMP areas are treated as essentially not constraining for the length of the maintenance period because it is unreasonable to expect that an area satisfying the LMP criteria will experience so much growth during that period of time that a violation of the PM10NAAQS would result.

For transportation conformity purposes, EPA concludes that, as long as the area qualifies for the LMP option, emissions in New Haven need not be capped for the maintenance period and, therefore, a regional emissions analysis is not required. Similarly, Federal actions subject to the general conformity rule could be considered to satisfy the “budget test” specified in § 93.158 (a)(5)(i)(A) of the rule for the same reasons that the budgets are essentially considered to be unlimited.

States must demonstrate that an area has attained the PM10NAAQS through analysis of ambient air quality data from an ambient air monitoring network representing peak PM10concentrations. The data should be stored in the EPA Air Quality System (AQS) database.

The 24-hour PM10NAAQS is 150 μg/m3. An area has attained the 24-hour standard when the average number of expected exceedances per year is less than or equal to one when averaged over a three-year period (40 CFR 50.6). To make this determination, three consecutive years of complete ambient air quality data must be collected in accordance with federal requirements (40 CFR part 58, including appendices). Table 1 in the Connecticut SIP submittal lists 24-hour design values for 1999 through 2003. The 24-hour design value is below 150 μg/m3for each of these years at all PM10monitoring sites in Connecticut (range: 31-107 μg/m3). There have been no exceedances of the 24-hour PM10NAAQS in the New Haven NAA during the past five years. Thus, currently, the expected number of days exceeding the 24-hour standard is zero, and the New Haven NAA has attained the 24-hour PM10NAAQS.

The annual PM10NAAQS is 50 μg/m3. To determine attainment at a monitoring site, the standard is compared to the expected annual average, which is calculated by averaging the arithmetic average from the previous three years. Table 2 in the Connecticut SIP submittal lists annual average design values for 1999 through 2003. These values are below 50 μg/m3for each of these years at all PM10monitoring sites inConnecticut (range: 11-37 μg/m3). Thus, the three year annual average is below 50 μg/m3, and the New Haven NAA has attained the annual PM10NAAQS.

To qualify for redesignation, the SIP for the area must be fully approved under section 110(k) of the CAA, and must satisfy all requirements that apply to the area. EPA approved Connecticut's PM10Attainment Plan for New Haven on September 11, 1995 (60 FR 47076). Connecticut's PM10attainment plan demonstrated that the implementation of reasonably available control technology and reasonably available control measures (RACT/RACM), as embodied in seven consent orders, is sufficient to attain and maintain the PM10NAAQS. Thus, the area has a fully approved nonattainment area SIP under section 110(k) of the CAA.

Section 107(d)(3)(E)(v) of the CAA requires that a state containing a nonattainment area must meet all applicable requirements under section 110 and Part D of the CAA. EPA interprets this to mean the state must meet all requirements that applied to the area prior to, and at the time of, the submission of a complete redesignation request. The following is a summary of how Connecticut meets these requirements.

Section 110(a)(2) of the CAA contains general requirements for state implementation plans. These requirements include, but are not limited to, submittal of a SIP that has been adopted by the state after reasonable notice and public hearing; provisions for establishment and operation of appropriate apparatus, methods, systems and procedures necessary to monitor ambient air quality; implementation of a permit program; provisions for Part C—Prevention of Significant Deterioration (PSD) and Part D—New Source Review (NSR) permit programs; criteria for stationary source emission control measures, monitoring and reporting, provisions for modeling; and provisions for public and local agency participation. For purposes of redesignation, EPA's review of the Connecticut SIP shows that the State has satisfied all requirements under section 110(a)(2) of the CAA.

Part D contains general requirements applicable to all areas designated nonattainment. The general requirements are followed by a series of subparts specific to each pollutant. All PM10nonattainment areas must meet the general provisions of Subpart 1 and the specific PM10provisions in Subpart 4, “Additional Provisions for Particulate Matter Nonattainment Areas.” The following paragraphs discuss these requirements as they apply to the New Haven area.

Subpart 1, section 172(c) contains general requirements for nonattainment area plans. A thorough discussion of these requirements may be found in the General Preamble. See 57 FR 13538 (April 16, 1992). The requirements for reasonable further progress and other measures needed for attainment were satisfied with the approved PM10 Attainment Plan for New Haven. See 60 FR 47076 (September 11, 1995).

Section 172(c)(3) of the CAA requires a comprehensive, accurate, current inventory of actual emissions from all sources in the New Haven PM10NAA. The PM10Attainment Plan for New Haven that was approved by EPA in 1995 (60 FR 47076) included an emissions inventory for base year 1990. As described in the Attainment Plan, CT DEP determined that the PM10nonattainment problem in New Haven was a local problem in the area around the Stiles Street and Yankee Gas monitoring sites, primarily due to re-entrainment of mud and dirt from the unpaved areas by local traffic. To estimate PM10emissions from all source sectors, CT DEP used the 1999 National Emissions Inventory (NEI). This inventory represents the level of emissions in the New Haven area during the five-year time period (1999-2003) used to demonstrate that the area qualifies for the LMP option. This inventory shows that fugitive dust sources were the primary contributor to PM10in New Haven County, with lesser contributions from on-road, non-road, area (other than fugitive dust), and point sources. EPA is satisfied that the inventory contained in the Attainment Plan and in the NEI is sufficiently accurate and comprehensive to meet the requirement for an emission inventory.

The CAA Amendments of 1990 contained revisions to the new source review (NSR) program requirements for the construction and operation of new and modified major stationary sources located in nonattainment areas. The CAA requires states to amend their SIPs to reflect these revisions, but does not require submittal of this element along with the other SIP elements. The CAA established June 30, 1992 as the submittal date for the revised NSR programs (Section 189 of the CAA). In the New Haven Area, the requirements of the Part D NSR program will be replaced by the Prevention of Significant Deterioration (PSD) program and the maintenance area NSR program upon the effective date of redesignation. Revisions to the Part D NSR rules for nonattainment areas and to PSD rules for attainment areas in Connecticut were approved by EPA on February 27, 2003 (68 FR 9009) and can be found in Subsection 22a-174 of the Regulations of Connecticut State Agencies.

Once an area is redesignated, the state must continue to operate an appropriate air monitoring network in accordance with 40 CFR part 58 to verify attainment status of the area. Connecticut currently (as of December 2004) maintains seven PM10monitoring sites. Monitors at these sites are operating in accordance with 40 CFR part 58. The State has committed to continue operating a PM10monitoring network, and has agreed (in Hearing Report in Connecticut SIP submittal, DEP Response to Comment 3, p. 4) to maintain a continuous PM10FEM or FRM monitor at the Criscuolo Park site, which will replace the Stiles Street site about October 2005 due to highway construction. If Crisuolo Park site becomes unsuitable, a monitor will be maintained at an alternate site agreeable to EPA and CT DEP. This monitor must be maintained over the maintenance period to verify compliance with the PM10NAAQS in the New Haven area.

To continue to qualify for the LMP option, Connecticut must ensure that the ADV of the Criscuolo Park PM10monitor remains below the monitor's CDV. Connecticut has agreed (in Hearing Report in Connecticut SIP submittal, DEP Response to Comment 4, p. 4) to calculate the ADV for this monitor on an annual basis and to report this value to EPA. When five years of data are available, Connecticut will calculate the CDV for the monitoring site and compare this to the five-year ADV; CDV and ADV values will be reported to EPA annually over the maintenance period.

The CAA requires that contingency measures take effect if the area fails to meet reasonable further progress (RFP) requirements or fails to attain the NAAQS by the applicable attainment date. EPA approved Connecticut's PM10Attainment Plan and Contingency Measures for New Haven on September 11, 1995 (60 FR 47076). Contingency provisions are also required for maintenance plans under Section 175(a)(d). Connecticut provided contingency measures in their LMP. These measures are described below.

Part D Subpart 4, Section 189(a), (c) and (e) requirements apply to any moderate nonattainment area before the area can be redesignated to attainment. The requirements which were applicable prior to the submission of the request to redesignate the area must be fully approved into the SIP before redesignating the area to attainment. These requirements include: (i) Provisions to assure that RACM was implemented by December 10, 1993; (ii) Either a demonstration that the plan provided for attainment as expeditiously as practicable but not later than December 31, 1994, or a demonstration that attainment by that date was impracticable;

(iii) Quantitative milestones which were achieved every 3 years and which demonstrate reasonable further progress (RFP) toward attainment by December 31, 1994; and

(iv) Provisions to assure that the control requirements applicable to major stationary sources of PM10also apply to major stationary sources of PM10precursors except where the Administrator determined that such sources do not contribute significantly to PM10levels which exceed the NAAQS in the area. These provisions were fully approved into the SIP upon EPA approval of the PM10Attainment Plan for New Haven on September 11, 1995 (60 FR 47076).

The state must be able to reasonably attribute the improvement in air quality to permanent and enforceable emission reductions. In making this showing, the state must demonstrate that air quality improvements are the result of actual enforceable emission reductions. This showing should consider emission rates, production capacities, and other related information. The analysis should assume that sources are operating at permitted levels (or historic peak levels) unless evidence is presented that such an assumption is unrealistic. EPA believes that areas that qualify for the LMP will meet the NAAQS even under worst case meteorological conditions.

The maintenance demonstration is considered satisfied for New Haven because the area meets the air-quality criteria in the Wegman memo (pages A-4 and A-5 of the memo) and, thus, has a very low probability (1 in 10) of exceeding the NAAQS in the future. These criteria are met when ADVs for monitoring sites are less than CDVs for those sites with little variability in data over the years, the area expects only limited growth in on-road motor vehicle PM10emissions (including fugitive dust), and the area passes a motor vehicle regional emissions analysis test. A more detailed description of the LMP qualifying criteria and how the New Haven area meets these criteria is provided in Section (6).

In this action, EPA is proposing to fully approve the maintenance plan as allowed by the LMP guidance described in Section 6 below.

The Wegman memo explains the requirements for an area to qualify for the LMP option. First, the area should be attaining the NAAQS. Section 2.0 of the Connecticut SIP submittal summarizes quality-assured ambient monitoring data showing that the New Haven area met both the 24-hour and annual PM10NAAQS for the period 1999-2003 and continues to do so. As stated above in Section C(1), EPA has determined that the New Haven area is in attainment with the PM10NAAQS.

Second, the design value at each PM10monitor for the past five years must be either (1) at or below the margin of safety levels of 98 μg/m3for the 24-hour PM10NAAQS and 40 μg/m3for the annual PM10NAAQS, or (2) be less than the site-specific CDV, indicating that the site has a very low probability (1 in 10) of exceeding the NAAQS in the future. EPA's review of AQS data for 1999-2003 shows that New Haven qualifies for the LMP option using the second option. The CDV test is appropriate because, in 2003, one PM10monitor (of two) at the New Haven Stiles Street site had a 24-hour design value above 98 μg/m3(107 μg/m3). Section B (2) above describes how this site passes the CDV test and qualifies for the LMP option.

Third, the area must meet the motor vehicle regional emissions analysis test. This test determines whether increased emissions from on-road mobile sources could, in the next 10 years, increase concentrations in the area and threaten the assumption of maintenance under the LMP option. Section 3.0 of the Connecticut SIP submittal demonstrates that when adjusted for future on-road mobile emissions, New Haven passes a motor vehicle emissions analysis test with a design value of 102 μg/m3, which is less than the (Stiles Street) CDV of 124 μg/m3for the 24-hour NAAQS. Thus Connecticut has shown that New Haven qualifies for the LMP option as described in the Wegman memo.

The PM10Attainment Plan for New Haven that was approved in 1995 (60 FR 47076) includes an emissions inventory which was used to demonstrate attainment of the NAAQS. As described in the Attainment Plan, CT DEP determined that the PM10nonattainment problem in New Haven was a local problem in the area around the Stiles Street and Yankee Gas monitoring sites, primarily due to re-entrainment of mud and dirt from the unpaved areas by local traffic. These areas have since been paved.

To estimate PM10emissions from all source sectors, CT DEP used the 1999 National Emissions Inventory (NEI). This inventory represents the level of emissions in the New Haven area during the five-year time period (1999-2003) used to demonstrate that the area qualifies for the LMP option. This inventory shows that fugitive dust sources were the primary contributor to PM10in New Haven County, with lesser contributions from on-road, non-road, area (other than fugitive dust), and point sources. EPA is satisfied that the inventory contained in the Attainment Plan and in the NEI is sufficiently accurate and comprehensive to meet the requirement for an emission inventory that can be used to demonstrate attainment of the NAAQS

In Section 5.0 of the Connecticut SIP submittal, the CT DEP states that it will continue to maintain a PM10network toverify continued compliance with the PM10NAAQS in the New Haven maintenance area. Connecticut has specifically committed to maintaining a FEM monitor for PM10at Criscuolo Park (Hearing Report in Connecticut SIP submittal, DEP Response to Comment 3, p. 4). This site will replace the Stiles Street site about October 2005 due to highway construction.

Section 175A of the CAA states that a maintenance plan must include contingency measures, as necessary, to promptly correct any violation of the NAAQS which may occur after redesignation of the area to attainment. As explained in the Wegman memo, these contingency measures do not have to be fully adopted at the time of redesignation. The New Haven PM10LMP contains a Contingency Plan (Section 6.0 of the Connecticut SIP submittal). This plan incorporates contingency measures in the approved Attainment Plan (60 FR 47076) plus procedures that CT DEP will follow if a measured violation of the PM10NAAQS occurs after redesignation.

The contingency plan would be activated in the event of a potential violation of the PM10NAAQS, which under the LMP option is 40 μg/m3for the annual PM10NAAQS and 98 μg/m3for the 24-hour PM10NAAQS. These limits will be effective until five years of PM10FEM monitoring data are available for the Criscuolo Park site, which is scheduled to replace the Stiles Street site about October 2005. When five years of data are available, CDVs can be calculated for the PM10annual and 24-hour NAAQS for Criscuolo Park. If ADVs exceed these new CDV, the New Haven PM10maintenance area would no longer qualify for the LMP option, and a full maintenance would be required.

If a measured violation of the PM10NAAQS occurs, CT DEP will “immediately” (defined as within several working days in Hearing Report in Connecticut SIP submittal, DEP Response to Comment 5, p. 5) determine the validity of data by verifying all monitor operating parameters and quality assurance procedures. Once the violation is confirmed, the CT DEP will examine all activities in the vicinity of the site, such as traffic patterns and meteorological conditions, and determine the likely cause of the violation. CT DEP will then consult with the appropriate local, regional or state agency to design and implement a control remedy.

If the control remedy is ineffectual (i.e., another verified exceedance of the PM10NAAQS occurs), CT DEP will undertake a full emission inventory of the area and do modeling studies to identify additional control measures, and to estimate future PM10reductions and expected air quality at the violating monitor.

EPA concludes that these measures and commitments meet the requirement for contingency provisions of CAA Section 175A(d).

Under the LMP policy, emissions budgets are treated as essentially not constraining for the maintenance period because it is unreasonable to expect that qualifying areas would experience so much growth in that period that a NAAQS violation would result. While areas with maintenance plans approved under the LMP option are not subject to the budget test, the areas remain subject to other transportation conformity requirements of 40 CFR part 93, subpart A. Thus, the metropolitan planning organization (MPO) in the area or the state will still need to document and ensure that: (a) Transportation plans and projects provide for timely implementation of SIP transportation control measures (TCMs) in accordance with 40 CFR 93.113; (b) transportation plans and projects comply with the fiscal constraint element per 40 CFR 93.108; (c) the MPO's interagency consultation procedures meet applicable requirements of 40 CFR 93.105; (d) conformity of transportation plans is determined no less frequently than every three years, and conformity of plan amendments and transportation projects is demonstrated in accordance with the timing requirements specified in 40 CFR 93.104; (e) the latest planning assumptions and emissions model are used as set forth in 40 CFR 93.110 and 40 CFR 93.111; (6) projects do not cause or contribute to any new localized carbon monoxide or particulate matter violations, in accordance with procedures specified in 40 CFR 93.123; and (7) project sponsors and/or operators provide written commitments as specified in 40 CFR 93.125.

As noted above, under the LMP policy, emissions budgets are treated as essentially not constraining for the maintenance period because it is unreasonable to expect that qualifying areas would experience so much growth in that period that a NAAQS violation would result. As long as the New Haven area qualifies for the LMP option, federal actions subject to the general conformity rule are considered to satisfy the “budget test” specified in § 93.158(a)(5)(i)(A) of the rule.

EPA is approving the LMP for the New Haven PM10nonattainment area (New Haven NAA) in the State of Connecticut, and is granting a request by the State to redesignate the New Haven NAA to attainment for the NAAQS for particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM10).

The EPA is publishing this action without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of thisFederal Registerpublication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should relevant adverse comments be filed. This rule will be effective December 12, 2005 without further notice unless the Agency receives relevant adverse comments by November 14, 2005.

If the EPA receives such comments, then EPA will publish a notice withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on the proposed rule. Any parties interested in commenting on the proposed rule should do so at this time. If no such comments are received, the public is advised that this rule will be effective on December 12, 2005 and no further action will be taken on the proposed rule. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the state to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501et seq.)

The Congressional Review Act, 5 U.S.C. 801et 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 the rule in theFederal Register. A major rule cannot take effect until 60 days after it is published in theFederal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 12, 2005. Interested parties should comment in response to the proposed rule rather than petition for judicial review, unless the objection arises after the comment period allowed for in the proposal. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

This is a summary of the Commission's First Report and Order (1st RO) in ET Docket No. 04-295, FCC 05-153, adopted August 5, 2005, and released September 23, 2005. The complete text of this document is available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. This document may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone (800) 378-3160 or (202) 863-2893, facsimile (202) 863-2898, or via e-mail athttp://www.bcpiweb.com. It is also available on the Commission's Web site athttp://www.fcc.gov.

1.Background.In response to concerns that emerging technologies such as digital and wireless communications were making it increasingly difficult for law enforcement agencies to execute authorized surveillance, Congress enacted CALEA on October 25, 1994. CALEA was intended to preserve the ability of law enforcement agencies to conduct electronic surveillance by requiring that telecommunications carriers and manufacturers of telecommunications equipment modify and design their equipment, facilities, and services to ensure that they have the necessary surveillance capabilities. The Commission began its implementation of CALEA with the release of a Notice of Proposed Rulemaking in 1997 (62 FR 63302, November 27, 1997). Since that time, the Commission has taken several actions and released numerous orders implementing CALEA's requirements.

2. On March 10, 2004, the Department of Justice, the Federal Bureau of Investigation, and the Drug Enforcement Administration (collectively, DOJ) filed a petition asking the Commission to declare that broadband Internet access services and VoIP services are covered by CALEA. The Petition also requested that the Commission initiate a rulemaking proceeding to resolve, on an expedited basis, various outstanding issues associated with the implementation of CALEA. The Commission declined to issue a declaratory ruling, finding instead that it was necessary to compile a more complete record on the factual and legal issues surrounding the applicability of CALEA to broadband Internet access services and VoIP services, and thus issued a Notice of Proposed Rulemaking (NPRM) (69 FR 56976, September 23, 2004).

3. The Commission initiated this proceeding both to undertake a comprehensive and thorough examination of the appropriate legal and policy framework of CALEA, and to respond to DOJ's Petition asking the Commission to seek comment on the various outstanding issues associated with the implementation of CALEA, including the potential applicability of CALEA to broadband Internet access services and VoIP services. The NPRM indicated that the Commission would analyze the applicability of CALEA to broadband Internet access services and VoIP services under section 102(8)(B)(ii), a provision of CALEA upon which the Commission had never before relied. That provision—the Substantial Replacement Provision (SRP)—requires the Commission to deem certain service providers to be telecommunications carriers for CALEA purposes even when those providers are not telecommunications carriers under the Communications Act of 1934, as amended (Communications Act). The NPRM indicated that the Commission had never before exercised its section 102(8)(B)(ii) authority to identify additional entities that fall within CALEA's definition of “telecommunications carrier,” and had never before solicited comment on the discrete components of that subsection.

4. The NPRM sought comment, among other things, on the Commission's tentative conclusions that: (1) Congress intended the scope of CALEA's definition of “telecommunications carrier” to be more inclusive than that of the Communications Act; (2) facilities-based providers of any type of broadband Internet access service are subject to CALEA; (3) “managed” VoIP services are subject to CALEA; and (4) the phrase “a replacement for a substantial portion of the local telephone exchange service” in section102 of CALEA calls for assessing the replacement of any portion of an individual subscriber's functionality previously provided via “plain old telephone service” (POTS).

5.Discussion.In this 1st RO, we interpret the SRP to cover facilities-based broadband Internet access and interconnected VoIP. Our analysis first interprets the SRP to establish a legal framework for assessing services under CALEA, explaining the basis for all statutory interpretations that inform this framework. Next, we apply this framework to providers of facilities-based broadband Internet access services and interconnected VoIP services. In each case, we find that these providers are subject to CALEA under the SRP. We then discuss the scope of our actions today and the relationship of these actions to the Commission's efforts to resolve a number of outstanding issues related to CALEA, such as assistance capability requirements, compliance, enforcement, identification of future services and entities subject to CALEA, and cost-related matters.

6.Legal Framework.In this section, we explain how CALEA's SRP requires us to determine that some providers are subject to CALEA even if they are not telecommunications carriers as defined in the Communications Act. We further explain the relationship between the SRP and CALEA's exclusion for information services. Because the text of CALEA does not provide unambiguous direction, we consider the structure and history of the relevant provisions, including Congress's stated purposes, and interpret the statute in a manner that most faithfully implements Congress's intent. We conclude, as we indicated in the NPRM, that the terms “telecommunications carrier” and “information services” in CALEA cannot be interpreted identically to the way those terms have been interpreted under the Communications Act in light of the statutory text as well as Congress's intent and purpose in enacting CALEA.

7.CALEA Definition of “Telecommunications Carrier.”We affirm our tentative conclusion that Congress intended the scope of CALEA's definition of “telecommunications carrier” to be more inclusive than the similar definition of “telecommunications carrier” in the Communications Act. Critically, while certain portions of the definition are the same in both statutes, CALEA's SRP “has no analogue” in the Communications Act, thus rendering CALEA's definition of “telecommunications carrier” broader than that found in the Communications Act. The SRP directs the Commission to deem certain providers to be telecommunications carriers for CALEA purposes, whether or not they satisfy the definition of telecommunications carrier in sections 102(8)(A) and 102(8)(B)(i). The SRP reflects Congress's intent to “preserve the government's ability to * * * intercept communications that use advanced technologies such as digital or wireless transmission.” Under the SRP, a telecommunications carrier is “a person or entity engaged in providing wire or electronic communication switching or transmission service to the extent that the Commission finds that such service is a replacement for a substantial portion of the local telephone exchange service and that it is in the public interest to deem such a person or entity to be a telecommunications carrier for purposes of [CALEA].”

8. The SRP contains three components, each of which must be satisfied before the Commission can deem a person or entity a telecommunications carrier for purposes of CALEA. We address each of these components in turn. First, the SRP requires that an entity be “engaged in providing wire or electronic communication switching or transmission service.” In the NPRM, we interpreted the term “switching” in this phrase to include “routers, softswitches, and other equipment that may provide addressing and intelligence functions for packet-based communications to manage and direct the communications along to their intended destinations.” We affirm this reading of the statute, which has support in the record. We disagree with commenters who claim that the term “switching” as used by Congress in 1994 did not contemplate routers and softswitches, and thus suggest that the interpretation of this term must forever be limited to the function as it was commonly understood in 1994, namely circuit switching in the narrowband PSTN. Our decision today is reinforced by judicial precedent that has found CALEA to apply to certain packet-switched services. Moreover, limiting the interpretation of “switching” to circuit-switched technology would effectively eliminate any ability the Commission may have to extend CALEA obligations under the SRP to service providers using advanced digital technologies, in direct contravention of CALEA's stated purpose.

9. Second, the SRP requires that the service provided be “a replacement for a substantial portion of the local telephone exchange service.” We conclude that this requirement is satisfied if a service replaces any significant part of an individual subscriber's functionality previously provided via circuit-switched local telephone exchange service. This interpretation of an ambiguous statutory provision is most consistent with the language of section 102(8)(B)(ii), the express purpose of CALEA, and its legislative history. Congress did not enact language consistent with an interpretation offered by some commenters that would require the widespread use of a service before the SRP may be triggered. Instead, the SRP's phrase “substantial portion of the local telephone exchange service” indicates that the appropriate test is a functional one. It is triggered when a service replaces a portion of traditional telephone service,i.e., all or some of the components, or functions, of the service. Because the statutory phrase includes the word “substantial,” we will require the functions being replaced to be a significant or substantial function of traditional telephone service.

10. As we explained in the NPRM, the legacy local telephone exchange network served two distinct purposes at the time CALEA was enacted: it provided POTS, which enabled customers to make telephone calls to other customers within a defined local service area; and it was the primary, if not the only, conduit (i.e., transmission facility) used to access many non-local exchange services such as long distance services, enhanced services, and the Internet. The legislative history indicates that Congress intended CALEA to cover both the ability to “make, receive and direct calls” (i.e., the POTS functionality) and the transmission facilities that provide access to other services (i.e., the access conduit functionality). In 1994, this transmission function was commonly provided by dial-up Internet access, which shows that Congress did not mean to limit CALEA's scope to voice service alone. We therefore agree with DOJ that the language “substantial portion of the local telephone exchange service” includes both the POTS service and the transmission conduit functionality provided by local telephone exchange service in 1994. Commenters have not persuaded us otherwise.

11. The SRP's third component requires that the Commission find that “it is in the public interest to deem * * * a person or entity to be a telecommunications carrier for purposes of [CALEA]” once that entity has met the first and second components of the SRP. We sought comment in the NPRMon how to define the “public interest” for purposes of CALEA, as the statute does not explicitly define the term. We noted that the House Report specifically identified three factors for the Commission to consider, at a minimum, in making its public interest determination under the SRP: whether deeming an entity a telecommunications carrier would “promote competition, encourage the development of new technologies, and protect public safety and national security.” Based on the record before us, we conclude that it is appropriate to rely primarily on these three factors when making our public interest determination for purposes of the SRP. We find that consideration of these three factors balances the goals of competition and innovation with the needs of law enforcement.

12.CALEA Definition of “Information Services.”As we explained in the NPRM, the treatment of information services under CALEA is different from the treatment such services have been afforded under the Communications Act. In keeping with the legislative history of the Communications Act, the Commission interprets that Act's definitions of “telecommunications service” and “information service” to be mutually exclusive. Moreover, because the definition of “telecommunications service” focuses on the character of a provider's “offering * * * to the public,” the Commission has concluded that the classification of a particular service as a telecommunications service or an information services “turns on the nature of the functions that the end user is offered.” Additionally, the Communications Act's definition of “telecommunications” “only includes transmissions that do not alter the form or content of the information sent,” a definition that the Commission has found to exclude Internet access services, which “alter the format of information through computer processing applications.” For these reasons, the Commission has concluded that a single entity offering an integrated service combining basic telecommunications transmission with certain enhancements, specifically “capabilities for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information,” offers only an information service, and not a telecommunications service, for purposes of the Communications Act if the telecommunications and information services are sufficiently intertwined. In other words, the Commission does not recognize the telecommunications component of an information service as a telecommunications service under the Communications Act.

13. In contrast with the Communications Act, CALEA does not define or utilize the term “telecommunications service,” it does not adopt the Communications Act's narrow definition of “telecommunications,” and it does not construct a definitional framework in which the regulatory treatment of an integrated service depends on its classification into one of two mutually exclusive categories,i.e., telecommunications service or information service. As a result, structural and definitional features of the Communications Act that play a critical role in drawing the Act's regulatory dividing line between telecommunications service and information service, and that undergird the Commission's resulting classification of integrated broadband Internet access service as solely an information service for purposes of the Communications Act, are absent from CALEA. Unlike the Communications Act, CALEA's “overall statutory scheme” does not require the Commission to classify an integrated service offering as solely a telecommunications service or solely an information service depending on “the nature of the functions that the end user is offered,” and thus the classification of broadband Internet access services under the Communications Act is not controlling under CALEA.

14. The text of the “information services” definition is entirely consistent with this interpretive approach. CALEA defines “information services” as the offering of a capability for manipulating and storing information “via telecommunications,” but the statutory definition does not resolve the question whether the telecommunications functionality used to access that capability itself falls within the information service category. Under the Communications Act's similar definition of information service, we have resolved that ambiguity by concluding that the telecommunications component of an integrated information service offering falls within the information service category, but that result is not compelled by the text of CALEA, and thus the Act leaves the Commission free to resolve the definitional ambiguity as appropriate in light of CALEA's purposes and the public interest, without being bound by the approach followed under the Communications Act.

15. We also reach that same conclusion by a separate, and independent, route. CALEA excludes from its definition of telecommunications carrier “persons or entities insofar as they are engaged in providing information services,” and the definition of information services in CALEA is similar to the definition in the Communications Act. The SRP, however, adds a third category of services to the mix. A provider of communication switching or transmission service that is not a telecommunications service under the Communications Act is nonetheless deemed to be a telecommunications carrier under CALEA if the Commission finds that the service replaces a substantial portion of local telephone exchange service and it is in the public interest to treat the provider as a telecommunications carrier. To give significance to the SRP, this new category of services must include some aspects of services that may be “information services” under the Communications Act. An “irreconcilable tension” would occur if the Commission rendered Congress's deliberate extension of CALEA's requirements to providers satisfying the SRP insignificant by simply applying its Communications Act interpretation of “information services” to CALEA. Consequently, to resolve that tension in a manner that the Commission determines best reflects Congressional intent under CALEA as well as the text of the statute, a service classified as an “information service” under the Communications Act may not, in all respects, be classified as an “information service” under CALEA.

16. In addition to constituting the most reasonable construction of the statutory text, this conclusion is further bolstered by an examination of the legislative history. The House Report's discussion of information services and information service providers for CALEA purposes pertains only to the enhancements to the transmission capability underlying the service, that is, the computing capabilities that transform the service from a “telecommunications service” under the Communications Act and the corresponding Commission rules into an “information service.” For example, in discussing privacy concerns and the scope of CALEA, the House Report indicates that “electronic mail providers, on-line service providers, and Internet service providers are not subject to CALEA.” The House Report goes on to indicate, however, that while the storage of an e-mail message falls within CALEA's Information Services Exclusion, the transmission of an e-mailmessage is subject to CALEA. Similarly, the House Report indicates that a portion of voice mail service is also covered by CALEA: “the ‘redirection’ of a voice mail message is covered by CALEA, while the storage of the message is not.” If an information service for purposes of CALEA mirrored the definition and treatment of an information service under the Communications Act, CALEA would never have been able to reach the transmission of all e-mails or voice mails even when CALEA was enacted.

17. That conclusion is further supported by CALEA's structure. CALEA establishes a general rule that telecommunications carriers (including those covered by the SRP) are subject to CALEA's assistance capability requirements. Information services are an exception to that general rule. It is a well recognized principle of statutory construction that “[w]here a general provision in a statute has certain limited exceptions, all doubts should be resolved in favor of the general provision rather than the exceptions.” Accordingly, it is appropriate to give the Information Services Exclusion a narrow construction in order to give full effect to CALEA's general rule.

18. We thus find that the classification of a service as an information service under the Communications Act does not necessarily compel a finding that the service falls within CALEA's Information Service Exclusion. Decisions about the applicability of CALEA must be based on CALEA's definitions alone, not on the definitions in the Communications Act. Equally important, the classification of a service provider as a telecommunications carrier under CALEA's SRP does not limit the Commission's options for classifying that provider or service under the Communications Act. In the sections below, we apply this legal framework to providers of facilities-based broadband Internet access and interconnected VoIP services.

19.Applicability of CALEA to Broadband Internet Access Services.In this section, we find that facilities-based providers of any type of broadband Internet access service, including but not limited to wireline, cable modem, satellite, wireless, fixed wireless, and broadband access via powerline are subject to CALEA. In finding these providers to be subject to CALEA under the SRP, we reiterate that we do not disturb the Commission's prior decisions that CALEA unambiguously applies to all “common carriers offering telecommunications services for sale to the public,” as so classified under the Communications Act. Thus, to the extent that any facilities-based broadband Internet access service provider chooses to offer such service on a common carrier basis, that provider is subject to CALEA pursuant to section 102(8)(A), the Common Carrier Provision.

20. Applying the legal framework set forth above, we determine that facilities-based broadband Internet access providers satisfy each of the three prongs of the SRP: (1) They are providing a switching or transmission functionality; (2) this functionality is a replacement for a substantial portion of the local telephone exchange service, specifically, the portion used for dial-up Internet access; and (3) public interest factors weigh in favor of subjecting broadband Internet access services to CALEA.

21.Broadband Internet Access Service Providers Are “Telecommunications Carriers” Under CALEA: Broadband Internet Access Service Includes Switching or Transmission.We find that facilities-based broadband Internet access service providers are “engaged in providing wire or electronic communication switching or transmission service” and therefore meet the first prong of the SRP. As discussed above, we interpret the “switching or transmission” component of the SRP broadly to capture not only transmission or transport capabilities, but also new packet-based equipment and functionalities that direct communications to their intended destinations. No commenter suggests that facilities-based broadband Internet access providers do not provide a transmission or transport function. Indeed, commenters providing broadband Internet access service today describe the underlying transport component of their service as “switching and forwarding data.”

22.Broadband Internet Access Service Replaces a Substantial Portion of the Local Telephone Exchange Service.We next conclude that facilities-based broadband Internet access service providers provide a replacement for a substantial portion of the local telephone exchange service, specifically, the portion of local telephone exchange service that provides subscribers with dial-up Internet access capability. Broadband Internet access service unquestionably “replaces” a portion of the functionality that the traditional local telephone exchange service provides—namely, the ability to access the Internet. CALEA's legislative history supports our conclusion that broadband Internet access service was intended to be covered by CALEA, as are both dial-up and common carrier DSL transport services. That history explains the distinction between the portion of e-mail service that was subject to CALEA (a service that was accessible only over the Internet) and the portion that was not. The only way that the “transmission of an E-mail message” could have been captured under CALEA in 1994 was through the dial-up facilities and capabilities of narrowband local telephone exchange service. Thus, to the extent that dial-up capabilities are “replaced” today by broadband Internet access service, we ensure that the “transmission of an E-mail message” continues to be subject to CALEA by finding that the SRP covers the transmission component of broadband Internet access service.

23.Public Interest Factors Weigh in Favor of Subjecting Broadband Internet Access Service to CALEA.We further find that it is in the public interest to deem facilities-based broadband Internet access service providers to be “telecommunications carriers” for purposes of CALEA under the SRP. The public interest factors that we consider in reaching this determination—the effect on competition, the development and provision of new technologies and services, and public safety and national security—on balance, support this finding.

24. One of the cornerstones of the Commission's broadband policy is achieving the goal of developing a consistent regulatory framework across all broadband platforms by treating providers in the same manner with respect to broadband services providing similar functionality. Because all facilities-based providers of broadband Internet access services will be covered by CALEA, our finding today will have no skewing effect on competition. In addition, covering all broadband Internet access service providers prevents migration of criminal activity onto less regulated platforms.

25. We further determine that our actions today will not hinder the development of new services and technologies. While our action today brings much needed certainty to the application of CALEA to the development of new services and technologies, it does not favor any particular technology over another. Furthermore, nothing in this item will substantially change the deployment incentives currently faced by providers. Broadband Internet access service providers today are already subject to a number of electronic surveillance statutes that compel their cooperation with law enforcement agencies. Inaddition, it has been over a year since the Commission issued its tentative conclusion that broadband Internet access service providers would be covered by CALEA. During that time, we have seen an increase in broadband build-out, undermining any arguments that development of these systems would be stifled. In contrast, many commenters have indicated they are currently cooperating with law enforcement agencies to provide CALEA-like capabilities today.

26. The overwhelming importance of CALEA's assistance capability requirements to law enforcement efforts to safeguard homeland security and combat crime weighs heavily in favor of the application of CALEA obligations to all facilities-based broadband Internet access service providers. It is clearly not in the public interest to allow terrorists and criminals to avoid lawful surveillance by law enforcement agencies by using broadband Internet access services as a substitute for dial-up service.

27. Finally, in finding CALEA's SRP to cover facilities-based providers of broadband Internet access service, we conclude that establishments that acquire broadband Internet access service from a facilities-based provider to enable their patrons or customers to access the Internet from their respective establishments are not considered facilities-based broadband Internet access service providers subject to CALEA under the SRP. We note, however, that the provider of underlying facilities to such an establishment would be subject to CALEA, as discussed above. Furthermore, providers of Personal Area Networks (e.g., cordless phones, PDAs, home gateways) are not intended to be covered by our actions today. We find that these services are akin to private networks, which are excluded from CALEA requirements.

28. CALEA's Information Services Exclusion Does Not Apply to Broadband Internet Access Providers. We find that providers of broadband Internet access service are not relieved of CALEA obligations as a result of CALEA's Information Services Exclusion. As we have noted, our interpretation of the term information services in CALEA differs from our interpretation of that term in the Communications Act. Thus, the fact that broadband Internet access service may be classified as an information service under the Communications Act does not determine its classification for CALEA purposes. The appropriate focus of our analysis must be on the meaning of the term in CALEA, and for that, as we have explained, we look to the text of CALEA and its legislative history for guidance. As noted above, the legislative history indicates that under CALEA, telecommunications components are separable for regulatory purposes from information service components within a single service.

29. Our interpretation of the relationship between information services under the Communications Act and the Information Services Exclusion under CALEA does not eviscerate the Information Services Exclusion, as certain commenters claim. Rather, this approach gives meaning to the Information Services Exclusion, as intended by Congress, while reconciling the fact that Congress included the SRP specifically to empower the Commission to bring services such as broadband Internet access within CALEA's reach if appropriate. A facilities-based broadband Internet access service provider continues to have no CALEA obligations with respect to, for example, the storage functions of its e-mail service, its web-hosting and DNS lookup functions or any other ISP functionality of its Internet access service. It is only the “switching and transmission” component of its service that is subject to CALEA under our finding today.

30.Applicability of CALEA to VoIP Services.We conclude that CALEA applies to providers of “interconnected VoIP services,” which include those VoIP services that: (1) Enable real-time, two-way voice communications; (2) require a broadband connection from the user's location; (3) require IP-compatible customer premises equipment; and (4) permit users to receive calls from and terminate calls to the PSTN. We find that providers of interconnected VoIP services satisfy CALEA's definition of “telecommunications carrier” under the SRP and that CALEA's Information Services Exclusion does not apply to interconnected VoIP services. To be clear, a service offering is “interconnected VoIP” if it offers the capability for users to receive calls from and terminate calls to the PSTN; the offering is covered by CALEA for all VoIP communications, even those that do not involve the PSTN. Furthermore, the offering is covered regardless of how the interconnected VoIP provider facilitates access to and from the PSTN, whether directly or by making arrangements with a third party.

31. In reaching our conclusion, we abandon the distinction the NPRM drew between “managed” and “non-managed” VoIP services as the dividing line between VoIP services that are covered by CALEA and those that are not. The record has overwhelmingly convinced us that this distinction is unadministrable; even DOJ expressed an openness to a different way of identifying those VoIP services that CALEA covers. We find that using “interconnected VoIP services” to define the category of VoIP services that are covered by CALEA provides a clearer, more easily identifiable distinction that is consistent with recent Commission orders addressing the appropriate regulatory treatment of IP-enabled services. Interconnected VoIP services today include many of the types of VoIP offerings that DOJ's Petition indicates should be covered by CALEA, and is thus responsive to DOJ's needs at this time.

32.Interconnected VoIP Providers Are “Telecommunications Carriers” Under CALEA: Interconnected VoIP Includes Switching or Transmission.We find that providers of interconnected VoIP satisfy the three prongs of the SRP under CALEA's definition of “telecommunications carrier.” First, these providers are “engaged in providing wire or electronic communication switching or transmission services.” As we have explained, we interpret the term “switching” in the CALEA definition of “telecommunications carrier” to include “routers, softswitches, and other equipment that may provide addressing and intelligence functions for packet-based communications to manage and direct the communications along to their intended destinations.” Interconnected VoIP service providers use these technologies to enable their subscribers to make, receive, and direct calls. The record reflects that any VoIP provider that is interconnected to the PSTN “must necessarily” use a router or other server to do so. Thus, even VoIP providers that do not own their own underlying transmission facilities nonetheless are engaged in providing “switching” services to their customers.

33.Interconnected VoIP Replaces a Substantial Portion of the Local Telephone Exchange Service.Second, interconnected VoIP satisfies the “replacement for a substantial portion of the local telephone exchange service” prong of the SRP because it replaces the legacy POTS service functionality of traditional local telephone exchange service. As we explained in our recentVoIP E911 Order(70 FR 37273, June 29, 2005), customers who purchase interconnected VoIP service receive a service that “enables a customer to do everything (or nearly everything) the customer could do using an analog telephone.” We determine that a servicethat is increasingly used to replace analog voice service is exactly the type of service that Congress intended the SRP to reach.

34.Public Interest Factors Weigh in Favor of Subjecting Interconnected VoIP Providers to CALEA.Finally, we find that it is in the public interest to deem an interconnected VoIP service provider a telecommunications carrier for purposes of CALEA. In reaching this conclusion, we examine the three prongs of the public interest analysis that the NPRM proposed to consider: promotion of competition, encouragement of the development of new technologies, and protection of public safety and national security. These three factors compel a finding that CALEA should apply to interconnected VoIP. First, our finding today will not have a deleterious effect on competition because all providers of interconnected VoIP will be covered by CALEA. Singling out certain technologies or categories of interconnected VoIP providers would be more harmful to competition than applying CALEA requirements to all providers of interconnected VoIP services, as we do today. Second, we are confident that our decision today will not discourage the development of new technologies and services. Interconnected VoIP providers are already obligated to cooperate with law enforcement agencies under separate electronic surveillance laws. We have seen no evidence that these requirements have deterred the development of new VoIP technologies and services in the period of time since the Commission issued its tentative conclusion that some types of VoIP service are covered by CALEA. Instead, we have seen an increasing effort on the part of many interconnected VoIP providers to develop CALEA capabilities, and the record indicates that VoIP providers are already modifying their operations to ensure that they are able to comply with CALEA. Industry solutions appear to be readily available. Finally, the protection of public safety and national security compels us to apply CALEA to interconnected VoIP service providers. Excluding interconnected VoIP from CALEA coverage could significantly undermine law enforcement's surveillance efforts. Further, broadband Internet access providers alone might not have reasonable access to all of the information that law enforcement needs. Specifically, call management information (such as call forwarding and conference call features) and call set-up information (such as real-time speed dialing information and post-dial digit extraction information) are unlikely to be reasonably available to a broadband Internet access provider. The record thus indicates that the broadband Internet access provider and the interconnected VoIP provider must both be covered by CALEA in order to ensure that law enforcement agencies' surveillance needs are met.

35.CALEA's Information Services Exclusion Does Not Apply to Interconnected VoIP.We find that interconnected VoIP service is not subject to the Information Services Exclusion in CALEA. The regulatory classification of interconnected VoIP under the Communications Act is not determinative with regard to this inquiry. Indeed, the Commission has yet to determine the statutory classification of providers of interconnected VoIP for purposes of the Communications Act, but nowhere does CALEA require such a determination before analyzing a service provider under the SRP. Instead, the appropriate focus is on the meaning of the term in CALEA. As we have explained, CALEA's legislative history contains much discussion of “information services,” but not once did Congress contemplate that any type of voice service would fall into that category. Most significantly, Congress explicitly distinguished between “information services” that are not covered by CALEA and “services or facilities that enable the subscriber to make, receive or direct calls,” which are covered. Congress intended the capability to make what appear to the consumer to be ordinary voice calls—regardless of the technology involved—to fall outside the category of excluded information services under CALEA.

36.Scope of Commission Action.Our action in this 1st RO is limited to establishing that CALEA applies to facilities-based broadband Internet access providers and interconnected VoIP service providers. The NPRM raised important questions regarding the ability of broadband Internet access providers and VoIP providers to provide all of the capabilities that are required by section 103 of CALEA, including what those capability requirements mean in a broadband environment. The NPRM also sought comment on a variety of issues relating to identification of future services and entities subject to CALEA, compliance extensions, cost recovery, and enforcement. We will address all of these matters in a future order. Because we acknowledge that providers need a reasonable amount of time to come into compliance with all relevant CALEA requirements, we establish a deadline of 18 months from the effective date of this 1st RO, by which time newly covered entities and providers of newly covered services must be in full compliance.

37. This document does not contain proposed information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified “information collection burden for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,see44 U.S.C. 3506(c)(4).

38. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the NPRM in this proceeding. The Commission sought written public comment on the proposals in the NPRM, including comment on the IRFA. This Final Regulatory Flexibility Certification (FRFC) is limited to the matters raised in the NPRM relating to the applicability of CALEA to providers of broadband Internet access services and VoIP services. The present FRFC addresses comments on the IRFA concerning only those issues and conforms to the RFA.

39. Advances in technology, most notably the introduction of digital transmission and processing techniques and the proliferation of wireless and Internet services such as broadband Internet access services and VoIP, have challenged the ability of the law enforcement agencies (LEAs) to conduct lawful surveillance. In light of these difficulties, the Department of Justice, the Federal Bureau of Investigation, and the Drug Enforcement Administration (collectively, DOJ) filed a joint petition for expedited rulemaking in March 2004. In its petition, DOJ asked the Commission immediately to declare that broadband Internet access services and VoIP services are covered by CALEA.

40. In this 1st RO, we conclude that facilities-based broadband Internet access providers and providers of interconnected VoIP service are subject to CALEA as telecommunications carriers under CALEA's Substantial Replacement Provision (SRP). Because we acknowledge that providers need a reasonable amount of time to come into compliance with all relevant CALEArequirements, we establish a deadline of 18 months from the effective date of the 1st RO, by which time newly covered entities and providers of newly covered services must be in full compliance. This 1st RO is the first critical step needed to apply CALEA obligations to new technologies and services that are increasingly relied upon by the American public to meet their communications needs.

41. In this section, we respond to commenters who filed directly in response to the IRFA. To the extent we received comments raising general small business concerns during this proceeding, those comments are discussed throughout the 1st RO and are also summarized in part E, below.

42. The Office of Advocacy, U.S. Small Business Administration (SBA) and the National Telecommunications Cooperative Association (NTCA) filed comments directly in response to the IRFA. We note that both commenters raise various concerns about issues that were raised in the NPRM in this proceeding but are not addressed in this 1st RO. In this FRFC, we address their comments only to the extent that they relate to the applicability of CALEA's SRP to broadband Internet access and VoIP service, as all other concerns will be addressed in the subsequent order.

43. We reject SBA's argument that the Commission failed to analyze the compliance requirements and impacts on small carriers in the IRFA. The SBA argues that this failure made it difficult for small entities to comment on possible ways to minimize any impact. Although the Commission did not list the exact costs, in the NPRM we identified all the potential carriers that may be required to be CALEA compliant under the SRP, described in great detail what these carriers would be required to do if they were subject to CALEA, and requested comment on how the Commission could address the needs of small businesses. Indeed, far from discouraging small entities from participating, the NPRM elicited extensive comment on issues affecting small businesses. Therefore, we believe that small entities received sufficient notice of the implications of CALEA compliance addressed in today's 1st RO, and a revised IRFA is not necessary.

44. We also reject NTCA and SBA's contention that the Commission failed to include in the IRFA significant alternatives to minimize burdens on small entities. First, NTCA argues that the Commission failed to identify in the IRFA that small entities may be exempted under the SRP's public interest clause. In the NPRM, however, we asked for comment as to whether there are discrete groups of entities for which the public interest may not be served by including them under the SRP. We noted that small businesses that provide wireless broadband Internet access to rural areas may be one example of such a discrete group. In response to the NPRM, several small carriers filed comments claiming that the public interest would not be served by subjecting these providers to CALEA under the SRP. Second, SBA claims the Commission failed to identify in the IRFA the option of granting an extended transition period for small carriers. In the NPRM, however, we specifically invited comment from all entities on the appropriate amount of time to give newly covered entities to comply with CALEA. While we recognize that we did not specifically list in the IRFA the potential exclusion of small businesses under the SRP's public interest clause or the option of extending the time period for small carriers, the IRFA in this proceeding combined with the NPRM appropriately identified all the ways in which the Commission could lessen the regulatory burdens on small businesses in compliance with our RFA obligations.

45. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the NPRM in this proceeding. The Commission sought written public comment on the proposals in the NPRM, including comment on the IRFA. This present FRFC is limited to the matters raised in the NPRM relating to the applicability of Communications Assistance for Law Enforcement Act (CALEA) to providers of broadband Internet access services and VoIP services. The present FRFC addresses comments on the IRFA concerning only those issues and conforms to the RFA.

46.Wireline Carriers and Service Providers.We have included small incumbent local exchange carriers in this present RFA analysis. As noted above, a “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard (e.g., a telephone communications business having 1,500 or fewer employees), and “is not dominant in its field of operation.” The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent local exchange carriers are not dominant in their field of operation because any such dominance is not “national” in scope. We have therefore included small incumbent local exchange carriers in this RFA analysis, although we emphasize that this RFA action has no effect on Commission analyses and determinations in other, non-RFA contexts.

47.Incumbent Local Exchange Carriers (LECs).Neither the Commission nor the SBA has developed a small business size standard specifically for incumbent local exchange services. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 1,303 carriers have reported that they are engaged in the provision of incumbent local exchange services. Of these 1,303 carriers, an estimated 1,020 have 1,500 or fewer employees and 283 have more than 1,500 employees. Consequently, the Commission estimates that most providers of incumbent local exchange service are small businesses that may be affected by our action. In addition, limited preliminary census data for 2002 indicate that the total number of wired communications carriers increased approximately 34 percent from 1997 to 2002.

48.Competitive Local Exchange Carriers, Competitive Access Providers (CAPs), “Shared-Tenant Service Providers,” and “Other Local Service Providers.”Neither the Commission nor the SBA has developed a small business size standard specifically for these service providers. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 769 carriers have reported that they are engaged in the provision of either competitive access provider services or competitive local exchange carrier services. Of these 769 carriers, an estimated 676 have 1,500 or fewer employees and 93 have more than 1,500 employees. In addition, 12 carriers have reported that they are “Shared-Tenant Service Providers,” and all 12 are estimated to have 1,500 or fewer employees. In addition, 39 carriers have reported that they are “Other Local Service Providers.” Of the 39, an estimated 38 have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, theCommission estimates that most providers of competitive local exchange service, competitive access providers, “Shared-Tenant Service Providers,” and “Other Local Service Providers” are small entities that may be affected by our action. In addition, limited preliminary census data for 2002 indicate that the total number of wired communications carriers increased approximately 34 percent from 1997 to 2002.

49.Payphone Service Providers (PSPs).Neither the Commission nor the SBA has developed a small business size standard specifically for payphone services providers. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 654 carriers have reported that they are engaged in the provision of payphone services. Of these, an estimated 652 have 1,500 or fewer employees and two have more than 1,500 employees. Consequently, the Commission estimates that the majority of payphone service providers are small entities that may be affected by our action. In addition, limited preliminary census data for 2002 indicate that the total number of wired communications carriers increased approximately 34 percent from 1997 to 2002.

50.Interexchange Carriers (IXCs).Neither the Commission nor the SBA has developed a small business size standard specifically for providers of interexchange services. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 316 carriers have reported that they are engaged in the provision of interexchange service. Of these, an estimated 292 have 1,500 or fewer employees and 24 have more than 1,500 employees. Consequently, the Commission estimates that the majority of IXCs are small entities that may be affected by our action. In addition, limited preliminary census data for 2002 indicate that the total number of wired communications carriers increased approximately 34 percent from 1997 to 2002.

51.Operator Service Providers (OSPs).Neither the Commission nor the SBA has developed a small business size standard specifically for operator service providers. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 23 carriers have reported that they are engaged in the provision of operator services. Of these, an estimated 20 have 1,500 or fewer employees and three have more than 1,500 employees. Consequently, the Commission estimates that the majority of OSPs are small entities that may be affected by our action. In addition, limited preliminary census data for 2002 indicate that the total number of wired communications carriers increased approximately 34 percent from 1997 to 2002.

52.Prepaid Calling Card Providers.Neither the Commission nor the SBA has developed a small business size standard specifically for prepaid calling card providers. The appropriate size standard under SBA rules is for the category Telecommunications Resellers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 89 carriers have reported that they are engaged in the provision of prepaid calling cards. Of these, 88 are estimated to have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that all or the majority of prepaid calling card providers are small entities that may be affected by our action.

53.Wireless Telecommunications Service Providers.Below, for those services subject to auctions, we note that, as a general matter, the number of winning bidders that qualify as small businesses at the close of an auction does not necessarily represent the number of small businesses currently in service. Also, the Commission does not generally track subsequent business size unless, in the context of assignments or transfers, unjust enrichment issues are implicated.

54.Wireless Service Providers.The SBA has developed a small business size standard for wireless firms within the two broad economic census categories of “Paging” and “Cellular and Other Wireless Telecommunications.” Under both SBA categories, a wireless business is small if it has 1,500 or fewer employees. For the census category of Paging, Census Bureau data for 1997 show that there were 1,320 firms in this category, total, that operated for the entire year. Of this total, 1,303 firms had employment of 999 or fewer employees, and an additional 17 firms had employment of 1,000 employees or more. Thus, under this category and associated small business size standard, the majority of firms can be considered small. For the census category Cellular and Other Wireless Telecommunications, Census Bureau data for 1997 show that there were 977 firms in this category, total, that operated for the entire year. Of this total, 965 firms had employment of 999 or fewer employees, and an additional 12 firms had employment of 1,000 employees or more. Thus, under this second category and size standard, the majority of firms can, again, be considered small. In addition, limited preliminary census data for 2002 indicate that the total number of paging providers decreased approximately 51 percent from 1997 to 2002. In addition, limited preliminary census data for 2002 indicate that the total number of cellular and other wireless telecommunications carriers increased approximately 321 percent from 1997 to 2002.

55.Cellular Licensees.The SBA has developed a small business size standard for wireless firms within the broad economic census category “Cellular and Other Wireless Telecommunications.” Under this SBA category, a wireless business is small if it has 1,500 or fewer employees. For the census category Cellular and Other Wireless Telecommunications firms, Census Bureau data for 1997 show that there were 977 firms in this category, total, that operated for the entire year. Of this total, 965 firms had employment of 999 or fewer employees, and an additional 12 firms had employment of 1,000 employees or more. Thus, under this category and size standard, the great majority of firms can be considered small. Also, according to Commission data, 437 carriers reported that they were engaged in the provision of cellular service, Personal Communications Service (PCS), or Specialized Mobile Radio (SMR) Telephony services, which are placed together in the data. We have estimated that 260 of these are small, under the SBA small business size standard.

56.Common Carrier Paging.The SBA has developed a small business size standard for wireless firms within the broad economic census category, “Cellular and Other Wireless Telecommunications.” Under this SBA category, a wireless business is small if it has 1,500 or fewer employees. For the census category of Paging, Census Bureau data for 1997 show that there were 1,320 firms in this category, total, that operated for the entire year. Of this total, 1,303 firms had employment of 999 or fewer employees, and an additional 17 firms had employment of 1,000 employees or more. Thus, under this category and associated small business size standard, the majority offirms can be considered small. In the Paging Third Report and Order, we developed a small business size standard for “small businesses” and “very small businesses” for purposes of determining their eligibility for special provisions such as bidding credits and installment payments. A “small business” is an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $15 million for the preceding three years. Additionally, a “very small business” is an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $3 million for the preceding three years. The SBA has approved these small business size standards. An auction of Metropolitan Economic Area licenses commenced on February 24, 2000, and closed on March 2, 2000. Of the 985 licenses auctioned, 440 were sold. Fifty-seven companies claiming small business status won. Also, according to Commission data, 375 carriers reported that they were engaged in the provision of paging and messaging services. Of those, we estimate that 370 are small, under the SBA-approved small business size standard.

57.Wireless Communications Services.This service can be used for fixed, mobile, radiolocation, and digital audio broadcasting satellite uses. The Commission established small business size standards for the Wireless Communications Services (WCS) auction. A “small business” is an entity with average gross revenues of $40 million for each of the three preceding years, and a “very small business” is an entity with average gross revenues of $15 million for each of the three preceding years. The SBA has approved these small business size standards. The Commission auctioned geographic area licenses in the WCS service. In the auction, there were seven winning bidders that qualified as “very small business” entities, and one that qualified as a “small business” entity.

58.Wireless Telephony.Wireless telephony includes cellular, Personal Communications Services (PCS), and Specialized Mobile Radio (SMR) telephony carriers. As noted earlier, the SBA has developed a small business size standard for “Cellular and Other Wireless Telecommunications” services. Under that SBA small business size standard, a business is small if it has 1,500 or fewer employees. According to Commission data, 437 carriers reported that they were engaged in the provision of wireless telephony. We have estimated that 260 of these are small under the SBA small business size standard.

59.Broadband Personal Communications Service.The broadband Personal Communications Service (PCS) spectrum is divided into six frequency blocks designated A through F, and the Commission has held auctions for each block. The Commission defined “small entity” for Blocks C and F as an entity that has average gross revenues of $40 million or less in the three previous calendar years. For Block F, an additional classification for “very small business” was added and is defined as an entity that, together with its affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years.” These standards defining “small entity” in the context of broadband PCS auctions have been approved by the SBA. No small businesses, within the SBA-approved small business size standards bid successfully for licenses in Blocks A and B. There were 90 winning bidders that qualified as small entities in the Block C auctions. A total of 93 small and very small business bidders won approximately 40 percent of the 1,479 licenses for Blocks D, E, and F. On March 23, 1999, the Commission re-auctioned 347 C, D, E, and F Block licenses. There were 48 small business winning bidders. On January 26, 2001, the Commission completed the auction of 422 C and F Broadband PCS licenses in Auction No. 35. Of the 35 winning bidders in this auction, 29 qualified as “small” or “very small” businesses. Subsequent events, concerning Auction 35, including judicial and agency determinations, resulted in a total of 163 C and F Block licenses being available for grant.

60.Cable and Other Program Distribution.This category includes cable systems operators, closed circuit television services, direct broadcast satellite services, multipoint distribution systems, satellite master antenna systems, and subscription television services. The SBA has developed small business size standard for this census category, which includes all such companies generating $12.5 million or less in revenue annually. According to Census Bureau data for 1997, there were a total of 1,311 firms in this category, total, that had operated for the entire year. Of this total, 1,180 firms had annual receipts of under $10 million and an additional 52 firms had receipts of $10 million or more but less than $25 million. Consequently, the Commission estimates that the majority of providers in this service category are small businesses that may be affected by the rules and policies adopted herein.

61.Cable System Operators (Rate Regulation Standard).The Commission has developed its own small business size standard for cable system operators, for purposes of rate regulation. Under the Commission's rules, a “small cable company” is one serving fewer than 400,000 subscribers nationwide. The most recent estimates indicate that there were 1,439 cable operators who qualified as small cable system operators at the end of 1995. Since then, some of those companies may have grown to serve over 400,000 subscribers, and others may have been involved in transactions that caused them to be combined with other cable operators. Consequently, the Commission estimates that there are now fewer than 1,439 small entity cable system operators that may be affected by the rules and policies adopted herein.

62.Cable System Operators (Telecom Act Standard).The Communications Act of 1934, as amended, also contains a size standard for small cable system operators, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” The Commission has determined that there are 67,700,000 subscribers in the United States. Therefore, an operator serving fewer than 677,000 subscribers shall be deemed a small operator, if its annual revenues, when combined with the total annual revenues of all its affiliates, do not exceed $250 million in the aggregate. Based on available data, the Commission estimates that the number of cable operators serving 677,000 subscribers or fewer, totals 1,450. The Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million, and therefore are unable, at this time, to estimate more accurately the number of cable system operators that would qualify as small cable operators under the size standard contained in the Communications Act of 1934.

63.Internet Service Providers.The SBA has developed a small business size standard for Internet Service Providers (ISPs). ISPs “provide clients access to the Internet and generally provide related services such as web hosting, web page designing, andhardware or software consulting related to Internet connectivity.” Under the SBA size standard, such a business is small if it has average annual receipts of $21 million or less. According to Census Bureau data for 1997, there were 2,751 firms in this category that operated for the entire year. Of these, 2,659 firms had annual receipts of under $10 million, and an additional 67 firms had receipts of between $10 million and $24,999,999. Consequently, we estimate that the majority of these firms are small entities that may be affected by our action. In addition, limited preliminary census data for 2002 indicate that the total number of Internet service providers increased approximately five percent from 1997 to 2002.

64. The 1st RO requires all facilities-based broadband Internet access providers and providers of interconnected VoIP service to be CALEA compliant. Our decision today does not impose reporting or recordkeeping requirements that would be subject to the Paperwork Reduction Act. Pursuant to CALEA both small and large carriers must design their equipment, facilities, and services to ensure that they have the required surveillance capabilities. We note that a subsequent order will address other important issues under CALEA, such as compliance extensions and exemptions, cost recovery, identification of future services and entities subject to CALEA, and enforcement.

65. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include (among others) the following four alternatives: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.

66. In the 1st RO, we conclude that facilities-based broadband Internet access providers and providers of interconnected VoIP service are “telecommunications carriers” under CALEA's SRP. In arriving at these conclusions, the Commission first interprets the SRP to establish a legal framework for assessing services under CALEA, explaining the basis for all statutory interpretations that inform this framework. We then apply this framework to providers of facilities-based broadband Internet access services and interconnected VoIP services. The Commission considered various alternatives, which it rejected or accepted for the reasons set forth in the body of the 1st RO. The significant alternatives that commenters discussed and that we considered in determining that these providers are “telecommunications carriers” under CALEA's SRP are as follows.

67.Legal Framework.In the 1st RO, we affirm our tentative conclusion that Congress intended the scope of CALEA's definition of telecommunications carrier to be more inclusive than the similar definition of “telecommunications carrier” in the Communications Act. In reaching this conclusion, we rejected arguments that the definition of “telecommunications carriers” in CALEA is functionally identical to the definition of that term in the Communications Act. While we recognize that a broader interpretation may include small entities under the definition, CALEA contains several differences that support this broader interpretation of the term “telecommunications carrier” under CALEA. As noted above, the most significant difference is the SRP, which “has no analogue” in the Communications Act.

68. The SRP applies only to entities “engaged in providing wire or electronic communication switching or transmission service.” We conclude that the term “switching” in this phrase includes “routers, softswitches, and other equipment that may provide addressing and intelligence functions for packet-based communications to manage and direct the communications along to their intended destinations.” We considered but rejected arguments that the term “switching” as used by Congress in 1994 did not contemplate routers and softswitches. For instance, some commenters argued that this term must forever be limited to that function as it was commonly understood in 1994, namely circuit switching in the narrowband PSTN. We believe that interpreting CALEA's inclusion of the word “switching” to describe a function that Congress intended to be covered—regardless of the specific technology employed to perform that function—is the interpretation most consistent with the purpose of the statute. The alternative approach would effectively eliminate any ability the Commission may have to extend CALEA obligations under the SRP to service providers using advanced digital technologies, in direct contravention of CALEA's stated purpose.

69. The SRP requires that the service provided be “a replacement for a substantial portion of the local telephone exchange service.” We affirmed our tentative conclusion that this requirement is satisfied if a service replaces any significant part of an individual subscriber's functionality previously provided via circuit-switched local telephone exchange service. We considered various interpretations. For example, we considered, but declined to adopt, an interpretation that would require the service to be capable of replacing all of the functionalities of local exchange service. Instead, we agree with DOJ that the language “substantial portion of the local telephone exchange service” includes both the POTS service and the transmission conduit functionality provided by local telephone exchange service in 1994. While our interpretation will most likely cover small entities, commenters have not persuaded us to adopt a different interpretation.

70. The SRP also requires that the Commission find that “it is in the public interest to deem * * * a person or entity to be a telecommunications carrier for purposes of [CALEA].” We conclude that the Commission will consider three factors in its public interest analysis: (1) Promotion of competition; (2) encouragement of the development of new technologies; and (3) protection of public safety and national security. We declined to identify any other specific public interest considerations, which we recognize might benefit small telecommunications carriers.

71. We conclude, as we indicated in the NPRM, that the terms “telecommunications carrier” and “information services” in CALEA cannot be interpreted identically to the way those terms have been interpreted under the Communications Act in light of Congress's intent and purpose in enacting CALEA. As explained above, we disagree with commenters who argue that we should interpret the statute to narrow the scope of services that are covered today to a more narrow group of services than those covered when CALEA was enacted, particularly in light of CALEA's stated purpose to “preserve the government's ability to * * * intercept communications that use advanced technologies such as digital or wireless transmission.” Whilewe recognize that small entities might benefit by an interpretation that would narrow the scope of services subject to CALEA, we believe that decisions about the applicability of CALEA must be based on CALEA's definitions alone, not on the definitions in the Communications Act.

72.Facilities-Based Broadband Internet Access Service Providers.We apply our conclusions concerning the legal framework to providers of facilities-based broadband Internet access services and find that these providers are subject to CALEA under the SRP. In reaching this decision, we considered the comments by small carriers, which generally claimed that the public interest would not be served by subjecting these providers to CALEA under the SRP. Based on our analysis here, we decline to exclude any facilities-based broadband Internet access providers from CALEA requirements at this time. We agree with DOJ that these commenters have not provided sufficient evidence, identified the particular carriers that should be exempted from CALEA's SRP, or addressed law enforcement's needs. These telecommunications carriers have several options under CALEA. We believe that these CALEA provisions will safeguard small entities from any significant adverse economic impacts of CALEA compliance.

73. Additionally, based on comments from these small carriers, we adopt a Further Notice of Proposed Rulemaking (FNPRM), published elsewhere in this issue, that seeks comment on what procedures the Commission should adopt to implement CALEA's exemption provision, as well as the appropriateness of requiring something less than full CALEA compliance for certain classes or categories of providers, such as small or rural entities. We also seek comment on the best way to impose different compliance standards. We believe that the FNPRM will assist the Commission in adopting streamlined exemption procedures, which will ultimately benefit both large and small entities alike. The FNPRM is also a concerted effort by the Commission to adopt any other rules that will reduce CALEA burdens on small entities. We believe our approach represents a reasonable accommodation for small carriers, and we encourage these entities to file comments on the FNPRM to assist the Commission in these efforts.

74.Interconnected VoIP Service.We apply our conclusions concerning the legal framework to providers of interconnected VoIP services and find that these providers are subject to CALEA under the SRP. We considered but abandoned the distinction the NPRM drew between “managed” and “non-managed” VoIP services as the dividing line between VoIP services that are covered by CALEA and those that are not. The record convinced us that this distinction is unadministrable; even DOJ expressed an openness to a different way of identifying those VoIP services that CALEA covers. We believe that the alternative approach, using “interconnected VoIP services” to define the category of VoIP services that are covered by CALEA, provides a clearer, more easily identifiable distinction that is consistent with recent Commission orders addressing the appropriate regulatory treatment of IP-enabled services.

75. As a result, certain VoIP service providers are not subject to CALEA obligations imposed in today's 1st RO. Specifically, the 1st RO does not apply to those entities not fully interconnected with the PSTN. Because interconnecting with the PSTN can impose substantial costs, we anticipate that many of the entities that elect not to interconnect with the PSTN, and which therefore are not subject to the rules adopted in today's 1st RO, are small entities. Small entities that provide VoIP services therefore also have some control over whether they will have to be CALEA compliant. Small businesses may still offer VoIP service without being subject to the rules adopted in today's 1st RO by electing not to provide an interconnected VoIP service.

76.Scope of 1st RO.Our action in the 1st RO is limited to establishing that CALEA applies to facilities-based broadband Internet access providers and interconnected VoIP service providers. As noted above, we will address in a subsequent order other important outstanding issues under CALEA, such as compliance extensions and exemptions, cost recovery, identification of future services and entities subject to CALEA, and enforcement. The 1st RO establishes a deadline of 18 months from the effective date of the Order, by which time newly covered entities and providers of newly covered services must be in full compliance with CALEA. We considered various comments advocating, for example, effective dates ranging from 12 months to 24 months. We also considered whether the Commission should grant additional time for small carriers to become CALEA compliant. However, as explained above, we find that 18 months is a reasonable time period to expect all providers of facilities-based broadband Internet access service and interconnected VoIP service to comply with CALEA. This alternative represents a reasonable accommodation for small entities and others, as these newly covered entities can begin planning to incorporate CALEA compliance into their operations. Furthermore, this approach will ensure that the appropriate parties become involved in ongoing discussions among the Commission, law enforcement, and industry representatives to develop standards for CALEA capabilities and compliance.

77.Report to Congress:The Commission will send a copy of the 1st RO, including this FRFC, in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the 1st RO, including this FRFC, to the Chief Counsel for Advocacy of the SBA.

78. Accordingly,it is orderedthat pursuant to sections 1, 4(i), 7(a), 229, 301, 303, 332, and 410 of the Communications Act of 1934, as amended, and section 102 of the Communications Assistance for Law Enforcement Act, 18 U.S.C. 1001, the Report and Order in ET Docket No. 04-295is adopted.

79.It is further orderedthat the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center,shall senda copy of this Report and Order, including the Final Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business Administration.

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

The 2005 Atka mackerel TAC in the Western Aleutian District of the BSAI is 18,500 metric tons (mt) as established by the 2005 and 2006 final harvest specifications for groundfish in the BSAI (70 FR 8979, February 24, 2005).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2005 Atka mackerel TAC in the Western Aleutian District of the BSAI will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 18,450 mt, and is setting aside the remaining 50 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Atka mackerel in the Western Aleutian District of the BSAI.

After the effective date of this closure the maximum retainable amounts at §§ 679.20(e) and (f) apply at any time during a trip.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of Atka mackerel in the Western Aleutian District of the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of October 5, 2005.

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

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

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

The 2005 Pacific ocean perch TAC in the Western Aleutian District of the BSAI is 4,703 metric tons (mt) as established by the 2005 and 2006 final harvest specifications for groundfish inthe BSAI (70 FR 8979, February 24, 2005).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2005 Pacific ocean perch TAC in the Western Aleutian District of the BSAI will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 4,650 mt, and is setting aside the remaining 53 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific ocean perch in the Western Aleutian District of the BSAI.

After the effective date of this closure the maximum retainable amounts at §§ 679.20(e) and (f) apply at any time during a trip.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of Pacific ocean perch in the Western Aleutian District of the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of October 5, 2005.

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

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

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

NMFS closed directed fishing for Atka mackerel with gears other than jig in the Eastern Aleutian District and the Bering Sea subarea of the BSAI under § 679.20(d)(1)(i) on September 2, 2005 (70 FR 53101, September 7, 2005).

NMFS has determined that as of October 4, 2005, approximately 1,355 metric tons of Atka mackerel remain in the 2005 Atka mackerel TAC specified for gears other than jig in the Eastern Aleutian District and the Bering Sea subarea of the BSAI. Therefore, in accordance with §§ 679.25(a)(2)(i)(C) and (a)(2)(iii)(D), and to allow the Atka mackerel fishery to resume, NMFS is terminating the previous closure and is reopening directed fishing for Atka mackerel with gears other than jig in the Eastern Aleutian District and the Bering Sea subarea of the BSAI.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the delay the opening of the fishery, not allow the full utilization of the Atka mackerel TAC specified for gears other than jig in the Eastern Aleutian District and the Bering Sea subarea of the BSAI, and therefore reduce the public's ability to use and enjoy the fishery resource.

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

This action is required by § 679.25 and is exempt from review under Executive Order 12866.

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

The 2005 TAC of pollock in Statistical Area 630 of the GOA is 18,718 metric tons (mt) as established by the 2005 and 2006 harvest specifications for groundfish of the GOA (70 FR 8958, February 24, 2005).

In accordance with § 679.20(d)(1)(i), the Regional Administrator has determined that the 2005 TAC of pollock in Statistical Area 630 of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 18,708 mt, and is setting aside the remaining 10 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for pollock in Statistical Area 630 of the GOA.

After the effective date of this closure the maximum retainable amounts at §§ 679.20(e) and (f) apply at any time during a trip.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of pollock in Statistical Area 630 of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of October xx, 2005.

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

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