On May 9, 2005, the Board published amendments to 5 CFR part 1207 as an interim rule with request for comments (70 FR 24293). The Board received no comments during the 60 days allowed for receipt of public comments. This final rule makes no changes to the previously published interim rule. See 70 FR 24293 for additional information concerning the Board's revision of 5 CFR 1207.

Accordingly, the Board adopts the interim rule published at 70 FR 24293 on May 9, 2005, as a final rule effective August 26, 2005.

The United States Grain Standards Act (USGSA) (7 U.S.C. 71 et seq. ) authorizes GIPSA to supervise grain inspection and weighing services provided by official agencies and to charge and collect reasonable fees to cover the cost of such supervision. These fees are charged by official agencies to their customers (grain industry) as part of the overall fee charged for inspection and weighing services. Supervision fees collected by GIPSA cover, as nearly as practicable, the program and administrative costs of supervising official agencies. The current supervision fees were published in the Federal Register on May 13, 2004 (69 FR 26476), and became effective June 14, 2004. This action adjusted only the supervision fee charged to delegated States for the inspection and weighing of export grain shipments. All other supervision fees remained unchanged. The fee for export grain shipments was changed from a unit fee of $49.20 per inspection to 1.6 cents per metric ton.

The fees unchanged by the June 14, 2004, action were last amended in September 23, 1985, as published in the Federal Register (50 FR 38503) and became effective on October 1, 1985. At that time, supervision fees were lowered an average 40 percent due to the accumulation of a $4.5 million reserve in retained earnings. The fee rates established on October 1, 1985, were set at a level so that the program operated at a net loss in order to reduce the operating reserves on a planned gradual basis. During the 19 year span from 1985 to 2004, GIPSA has gradually reduced the retained earnings in this program and has reached a point where an adjustment is needed to cover current and future program costs. In FY 2004, the official agency supervision program operating costs totaled $2,606,826, while revenue amounted to $1,527,713, a negative margin of $1,079,113. The retained earnings balance was $867,191 at the end of FY 2004. GIPSA projects the official agency supervision program deficit to continue at a comparable rate, and estimates that at the end of FY 2006, the program's retained earnings will be negative $1.1 million.

GIPSA regularly reviews its user-fee-financed programs under the USGSA (7 U.S.C. 71 et seq. ) to determine if the fees are adequate. GIPSA recognizes the need to reduce inspection and weighing supervision costs as much as possible before increasing fees and therefore has taken action through the years to minimize costs. GIPSA plans to reduce costs by initiating a transition to a central monitoring program. This action, scheduled for implementation in FY 2008, should reduce overall operating expenses an estimated $1.2 million or 43 percent. Implementing the central monitoring process, coupled with a new supervision fee, will assist GIPSA in reaching an adequate 3-month retained earnings balance.

GIPSA completed a review of the official agency inspection and weighing programs and determined it was necessary to propose a change in the manner in which it collects user fees and to increase fees in order to recover the retained earnings to their desired 3-month level. On March 21, 2005, GIPSA proposed in the Federal Register (70 FR 13411) to amend the fees to recover the costs associated with administering the official agency supervision program. This action would maintain GIPSA's financial stability to assure continued inspection and weighing services to the grain industry, which will further facilitate the sound and orderly marketing of grain in domestic and export markets.

The current supervision fee is assessed on a unit or carrier basis and does not necessarily reflect the amount of grain inspected and weighed. GIPSA believes assessing supervision fees proportionate to the weight of grain inspected and/or weighed is a reasonable approach. This process was implemented for the supervision of export grain inspected and weighed by Delegated States in the changes effective June 14, 2004 (69 FR 26476). Therefore, GIPSA proposed charging all supervision fees based on a per metric ton basis.

In FY 2004, customers of official agencies, the grain industry, paid an estimated $39 million or 21 cents per metric ton for official inspection and weighing services on an estimated 187 million metric tons of grain. Of the $39 million paid for services, $1,527,713 (3.92 percent or 0.82 cents per metric ton) represented GIPSA collected supervision fees. GIPSA's actual program costs for FY 2004 were $2,606,826 or 1.39 cents per metric ton which resulted in a net loss of approximately 0.57 cents per metric ton.

To minimize the impact of a fee increase, GIPSA proposed supervision fee rates that would collect sufficient revenue over time to cover operating expenses, while striving to create a 3-month operating reserve by FY 2014. The cost of living projections used in calculating future salary, benefits, and all other non-salary expenses out to FY 2014 were supplied by the Office of Management and Budget (OMB) as set forth in their Federal Register publication (69 FR 26900) on May 14, 2004. In projecting revenue to FY 2014, GIPSA used a 5 year average of the total tons inspected and/or weighed by official agencies. GIPSA will evaluate the financial status of the supervision of the grain inspection and weighing program on a continuous basis to determine if it is meeting the goal of obtaining a 3-month operating reserve by FY 2014, and to determine if other adjustments are necessary.

GIPSA proposed to gradually replenish the reserve rather than sharply increase supervision fees in the short term to immediately replenish the retained earnings. GIPSA proposed a change in the supervision fees and a change in the methodology for assessing supervision fees to official agencies. Section 800.71 of the regulations provides that the fees shown in Schedule C apply to official inspection and weighing services performed by delegated States and designated agencies in the United States, except for those State agencies that are delegated additional responsibilities by GIPSA. These States are assessed annual charges as noted in the State's Delegation of Authority document. GIPSA has a long-standing agreement with the State of Washington whereby the State pays GIPSA for direct local costs along with their portion of the national administrative costs. The financial data and information used to develop the fees for Schedule C did not include the costs and tonnage associated with the State of Washington since the State is charged for their direct local costs and their share of the national administrative costs as established by the agreement.

GIPSA projected that the new fees should be implemented no later than FY 2007 and projected costs to FY 2014 to develop the new fees for Schedule C. GIPSA projections are based on an average total inspection and weighing tonnage of 170 million metric tons per year.

GIPSA determined that if the new fees are implemented by FY 2007 and the goal is to replenish the retained earnings and 3-month operating reserve by FY 2014, then GIPSA will need to collect approximately $1.9 million per year from FY 2007 through FY 2014 to achieve this goal. GIPSA concluded that a 1.1 cents per metric ton fee would generate approximately $1.9 million per year based on an average annual service volume of 170 million metric tons. This new fee would generate sufficient funds to rebuild the retained earnings to its desired 3-month level by FY 2014. GIPSA will continue to monitor and evaluate the program to ensure the goal is achieved.

GIPSA also proposed to change the method to assess supervision fees to the official agencies. GIPSA has historically charged supervision fees based on the type of carrier serviced and further charged supervision fees based on the kinds and levels of services received. GIPSA proposed to charge the 1.1 cents per metric ton supervision fees based on the total tonnage of grain officially inspected and/or weighed by official agencies. GIPSA proposed to utilize a standard metric ton conversion rate for submitted samples and specific carriers serviced in order to calculate and assess the supervision fees to the official agencies. The following table illustrates the standard metric ton conversion rate that GIPSA will use to assess the total tons serviced by the official agencies.

GIPSA determined that ships will be assessed the 1.1 cents per metric ton supervision fee based on the actual certified weight for the ship.

The change in supervision fees would increase the average current fee rate by approximately 0.3 cent per metric ton. This additional increase should minimally affect the amount an applicant (grain industry) pays for service.

GIPSA received comments in response to the proposed rulemaking published March 21, 2005, in the Federal Register (70 FR 13411). One comment indicated that GIPSA should streamline its operations and reduce staff before imposing a fee increase. As discussed earlier in this document, GIPSA recognizes the need to reduce inspection and weighing costs as much as possible before increasing fees and has taken action through the years to minimize costs. However, the fee adjustment is necessary to collect sufficient revenue to cover the current and future costs of supervising the performance of official agencies. A second response did not respond to the proposed action. Consequently, GIPSA is implementing the fee changes as they were proposed.

This rule has been determined to be non-significant for the purposes of Executive Order 12866 and therefore has not been reviewed by the OMB. This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This action is not intended to have a retroactive effect. The USGSA provides in Sec. 87g that no subdivision may require or impose any requirements or restrictions concerning the inspection, weighing, or description of grain under the Act. Otherwise, this rule will not preempt any State or local laws, regulations, or policies unless they present irreconcilable conflict with this rule. There are no administrative procedures that must be exhausted prior to any judicial challenge to the provisions of this rule.

In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the information collection and recordkeeping requirements included in this rule has been approved by the OMB under control number 0580-0013.

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

GIPSA has determined that this rule does not have a significant economic impact on a substantial number of small entities, as defined in the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), because the majority of applicants (grain industry) that apply for these official services, and are subjected to GIPSA supervision fees, do not meet the requirements for small entities. This rule will affect entities engaged in shipping grain to and from points within the United States and exporting grain from the United States. GIPSA estimates there are approximately 9,500 off-farm storage facilities and 18 export elevators in the United States that could receive services from delegated States or designated agencies. Official services are available from 7 delegated States and 49 designated agencies. For clarification, any and all grain that is exported from the U.S. export port locations must, as required by the USGSA, be inspected and/or weighed. These services are either performed by GIPSA or delegated States. Further, some grain exported from interior locations may also require inspection and/or weighing services unless the services are waived as provided in section 800.18 of the regulations. These services are provided by designated agencies. The USGSA does not require inspection or weighing services for grain marketed within the U.S. Consequently, these services are permissive and may be performed by official agencies. The USGSA (7 U.S.C. 71 et seq. ) authorizes GIPSA to provide supervision of official grain inspection and weighing services, and to charge and collect reasonable fees for performing these services. The fees collected are to cover, as nearly as practicable, GIPSA's costs for performing these services, including related administrative and supervisory costs.

GIPSA realizes that any increase in supervision fees will be charged by official agencies to the users (grain industry) of the official grain inspection and weighing system.

Although, the overall effect of this rule will be passed on to the users of official grain inspection and weighing services, mostly large corporations, David R. Shipman, Acting Administrator, GIPSA, has determined that this rule will not have a significant impact on a substantial number of small entities as defined in the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ).

This rule is issued under Marketing Agreement and Order No. 984, both as amended (7 CFR part 984), hereinafter referred to as the “order”, regulating the handling of walnuts grown in the State of California. The marketing agreement and order are effective pursuant to the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

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

This proposal has been reviewed under Executive Order 12988, Civil Justice Reform. This proposal is not intended to have retroactive effect. This proposed rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this proposed 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 suspends a provision of the walnut marketing order (order) pertaining to eligibility of members to serve on the Walnut Marketing Board (Board). The order regulates the handling of walnuts grown in California, and the Board is responsible for local administration of the order. This action is an interim measure to address a change in industry structure affecting cooperative marketing association related positions. This will allow the Board to continue to represent the industry's interests while the order is amended to reflect the change in industry structure. The Board unanimously recommended a suspension action by mail balloting in early July, 2005.

Section 984.35 of the order establishes the Board as the administrative body appointed by USDA to administer the order. That section also specifies composition of the Board, and allocates seats to cooperative and independent growers and handlers. The Board is comprised of ten members and ten alternate members. Two members represent handlers that are cooperative marketing associations of growers (cooperative handlers), and two members represent growers who market their walnuts through cooperative handlers. Two members represent handlers that are not cooperative marketing associations of growers (independent handlers), and two members represent growers that market their walnuts through independent handlers. One member represents growers that market their walnuts through either cooperative or independent handlers, whichever category handled over fifty percent of the walnuts handled by all handlers in the industry in the immediately preceding two marketing years. In recent years, this Board position has been allocated to the independent category. One member represents neither growers nor handlers (public member).

Section 984.38 of the order provides, in part, that no person shall be selected or continue to serve as a member or alternate member of the Board unless that person is engaged in the business of the group he or she was nominated to represent.

A change recently occurred in the walnut industry that impacts composition of the Board. A large cooperative marketing association recently converted to a publicly held corporation. The former cooperative association held two grower and two handler positions on the Board.

In order to address this change, section 984.38 of the order needs to be suspended to allow a representative Board to continue in place while the order is amended to reflect the new industry structure. Therefore, the Board recommended through a mail ballot vote in early July, 2005, to suspend the order provision. USDA has reviewed the recommendation and has determined that suspending § 984.38 of the order regarding eligibility requirements of Board members will accomplish that objective. As previously discussed, § 984.38 provides that no person shall be selected or continue to serve as a member or alternate member of the Board unless that person is engaged in the business of the group he or she was nominated to represent.

If the eligibility requirements are not suspended, four of the Board members that represented the cooperative become ineligible to serve on the Board. However, these members continue to represent a significant portion of the industry. Suspending the order provision regarding eligibility of Board members allows a complete Board to remain in place. This action will enable a Board that is representative of the walnut industry to continue to administer the order without disruption while the order is being amended to reflect changes in the industry structure.

This action suspends § 984.38 of the order entitled “Eligibility”. This action is in the best interest of handlers and growers in the California walnut industry as the industry transitions through a structural change.

Pursuant to the requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this proposal on small entities. Accordingly, AMS has prepared this initial 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 rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.

There are approximately 5,000 producers of walnuts in the production area and 50 walnut handlers subject to regulation under the marketing order. Small agricultural service firms are defined as those whose annual receipts are less than $6,000,000 and small agricultural producers have been defined by the Small Business Administration as those having annual receipts less than $750,000 (13 CFR 121.201).

Industry information from the Walnut Marketing Board indicates that 36 of the 50 walnut handlers, or 72%, shipped less than $6,000,000 worth of walnuts and could be considered small businesses by the Small Business Administration. In addition, only an estimated 60 producers, or 1.2%, have annual receipts in excess of $750,000. Based on the foregoing, the majority of walnut producers and handlers regulated under the marketing order may be classified as small entities.

This rule suspends provisions of the walnut marketing order (order) pertaining to eligibility of members to serve on the Walnut Marketing Board (Board). The order regulates the handling of walnuts grown in California, and the Board is responsible for local administration of the order. Specifically, this action suspends § 984.38 of the order entitled “Eligibility”.

Due to structural changes in the industry, the order provisions regarding Board composition no longer accurately reflect the industry composition. If the eligibility requirements are not suspended, four of the Board members that represented the cooperative become ineligible to serve on the Board. However, these members continue to represent a significant portion of the industry. Suspending the order provision regarding eligibility of Board members allows a complete Board to remain in place. This action will enable a Board that still represents the walnut industry to continue to administer the order without disruption while the order is being amended to reflect changes in the industry structure. The Board unanimously recommended suspending order language by mail balloting in early July, 2005.

Alternatives to this action were considered. One alternative was to remove the former cooperative members from the Board, which would result in a 6-member Board. This was not considered a preferred option because it would limit the size of the Board.

This rule suspends order language pertaining to membership eligibility on the Walnut Marketing Board. Accordingly, this action does not impose any additional reporting or recordkeeping requirements, or any other costs, on either small or large walnut handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. In addition, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule. Finally, interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses.

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

This rule invites comments on suspending order provisions regarding eligibility of Board members under the California walnut marketing order. Any comments received will be considered prior to finalization of this rule.

After consideration of all relevant material presented, including the Board's recommendation, and other information, it is found that the order language being suspended, as hereinafter set forth, no longer tends to effectuate the declared policy of the Act.

Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) The Board unanimously recommended these changes; (2) these changes are needed to allow a representative Board to remain in place to administer the order; and (3) this rule provides a 60-day comment period and any comments timely received will be considered prior to finalization of this rule.

This rule is issued under Marketing agreement and Order No. 993, both as amended (7 CFR part 993), regulating the handling of dried prunes produced in California, hereinafter referred to as the “order.” The marketing agreement and order are 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 a 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.

Section 993.90(a) of the prune marketing order provides, in part, that the Secretary “shall terminate or suspend the operations of any or all of the provisions of the subpart, whenever he finds that such provisions do not tend to effectuate the declared policy of the “Act.” Information from the committee, or other sources, may be used by the Secretary in making the determination.

Being cognizant that some growers and packers believe the marketing order has become overly complex and restrictive in today's more technologically-advanced, global market, the committee has held task force meetings over the last two years to solicit input from the industry on amending the order. However, little progress has resulted from those meetings concerning the best method to streamline the existing order and update it to reflect modern packing methods and marketing strategies. Thus, at its meeting on March 15, 2005, the committee voted unanimously to recommend to USDA that the handling and reporting requirements, including the currently-suspended outgoing inspection and volume-control regulations, be suspended indefinitely.

Because the committee would need to obtain information on the tonnage received by each handler to properly allocate committee member and alternate positions, and to assess handlers for their prorate share of expenses, the committee has arranged with the California Department of Food and Agriculture and the California Dried Plum Board (CDPB) to receive such information as needed from CDPB for this purpose.

On April 16, 2004, the committee approved a motion to submit a request to USDA no later than January 15, 2005, to suspend the marketing order for one year, effective August 1, 2005, through July 31, 2006. At that time, the committee believed that the lead time provided by this recommended suspension permits the industry to consider what portions of the suspended Federal marketing order should be added to the California State marketing order for dried plums.

In accordance with the committee's April 16, 2004, resolution, on December 8, 2004, it recommended to USDA that the marketing order be suspended for one crop year, beginning August 1, 2005, and requested that the current committee members to be appointed as trustees during the suspension period.

On February 23, 2005, the Executive Committee reconsidered their recommendation to suspend the entire order and have the current members named as trustees. The Executive Committee made a subsequent recommendation to committee to rescind the December 8, 2004, recommendation. The Executive Committee then recommended the handling and reporting requirements be suspended indefinitely, and forwarded that revised recommendation to the full committee, as well. The revised recommendation also included extending the temporary suspensions of outgoing inspection and volume control regulations, which would have ended on August 1 of 2006 and 2008, respectively. As stated earlier, on March 15, 2005, the committee revised its recommendation accordingly.

Section 8e of the Act provides that when certain domestically-produced commodities, including prunes, are regulated under a Federal marketing order, imports of that commodity must meet the same or comparable grade, size, quality, and maturity requirements. Since this rule indefinitely suspends the handling regulations, including grade, size, and quality requirements, these requirements will continue to be suspended in the import regulations. Currently, the prune import regulations are suspended through July 31, 2006.

U.S. imports of dried prunes are insignificant compared to U.S. production. In 2002, while the U.S. produced 158,000 tons of dried prunes, only 616 tons were imported. In that year, the domestically-produced tonnage was over 250 times larger than the imported tonnage.

In recent years, as volumes of domestically-produced prunes have fluctuated imports have also fluctuated, but imported prunes continue to represent a very small portion of the available prune products in the U.S. market.

Argentina, Chile, France, Mexico, Iran, and Turkey export prunes to the United States, with Argentina accounting for approximately 90 percent of all U.S. imports.

Under the order, §§ 993.48 through 993.59, and §§ 993.62 authorized requirements upon handlers to meet grade and size requirements, obtain both incoming and outgoing inspection, label prunes appropriately, and hold a portion of the crop in reserve. The order's rules and regulations establish similar requirements.

Currently the provisions for outgoing inspections and reserve disposition are suspended in both the order and the order's rules and regulations until August 1, 2006, and August 1, 2008, respectively. This rule suspends indefinitely all the remaining handling requirements.

Under §§ 993.71 through 993.75, the order also includes authority to require that handlers file reports with the committee on acquisitions, accountings, holdings, uses, sales, and shipments of prunes. The order's rules and regulations include similar requirements, except that some of these provisions are currently suspended, as they relate to volume control requirements.

This action suspends indefinitely those requirements, along with other handling requirements and the reporting requirements.

As stated previously, the committee would enter into an agreement with the CDPB to collect information necessary for allocating committee member and alternate member positions and for continuing assessments on a limited basis.

As noted, handling and reporting requirements will be suspended indefinitely. Included are provisions in the order regarding outgoing inspection and volume control regulations, which are currently temporarily suspended until August 1, 2006, and August 1, 2008, respectively.

In a conforming action, the provisions related to marketing policy are suspended, as well. Under the order the committee is required to establish a marketing policy annually if handling requirements are recommended. If no handling regulations are recommended due to suspension, no marketing policy statement is required.

Certain provisions and parts of certain provisions are currently suspended until a specified time. This rule will indefinitely suspend those provisions or parts of certain provisions, as well as additional provisions. The following list of provisions or parts of provisions being suspended are listed below chronologically and notations are made to clarify which provisions or parts of provisions are currently suspended.

Section 993.21d  Reserve prunes (currently suspended through 2008)

Section 993.33  Voting procedure (partially suspended through 2008)

Section 993.36(i)  Duties (currently suspended through 2008)

Section 993.41  Marketing policy

Section 993.48  Regulation

Section 993.49  Incoming regulation

Section 993.50  Outgoing regulation (partially suspended through 2006)

Section 993.51  Inspection and certification (partially suspended through 2006)

Section 993.52  Modification

Section 993.53  Above parity situations

Section 993.54  Establishment of salable and reserve percentages (currently suspended through 2008)

Section 993.55  Application of salable and reserve percentages after end of crop year (currently suspended through 2008)

Section 993.56  Reserve obligation (currently suspended through 2008)

Section 993.57  Holding requirement and delivery (currently suspended through 2008)

Section 993.58  Deferment of time for withholding (currently suspended through 2008)

Section 993.59  Payment to handlers for services (currently suspended through 2008)

Section 993.62  Diversion privileges (currently suspended through 2008)

Section 993.65  Disposition of reserve prunes (currently suspended through 2008)

Section 993.72  Reports of acquisitions, sales, uses, and shipments

Section 993.73  Other reports

Section 993.74  Records

Section 993.75  Verification of reports

Section 993.97  Exhibit A; minimum standards (partially suspended through 2006)

Section 993.104  Lot

Section 993.105  Size count

Section 993.106  In-line inspection

Section 993.107  Floor inspection

Section 993.108  Non-human consumption outlet

Section 993.149  Receiving of prunes by handlers

Section 993.150  Disposition of prunes by handlers (partially suspended through 2006)

Section 993.156  Application of reserve percentage (currently suspended through 2008)

Section 993.157  Holding and delivery of reserve prunes (currently suspended through 2008)

Section 993.158  Deferment of reserve withholding (currently suspended through 2008)

Section 993.159  Payments for services performed with respect to reserve tonnage prunes (currently suspended through 2008)

Section 993.162  Voluntary prune plum diversion (currently suspended through 2008)

Section 993.165  Disposition of reserve prunes (currently suspended through 2008)

Section 993.172  Reports of holdings, receipts, uses, and shipments (partially suspended through 2008)

Section 993.173  Reports of accounting (partially suspended through 2008)

Section 993.174  Records

Section 993.400  Modifications

Section 993.409  Undersized prune regulation for the 2002-03 crop year

Section 993.501  Consumer package of prunes

Section 993.503  Size category

Section 993.504  In-line inspection

Section 993.505  Floor inspection

Section 993.506  Lot

Section 993.515  Size categories (currently suspended through 2006)

Section 993.516  Tolerance and limitations (currently suspended through 2006)

Section 993.517  Identification (currently suspended through 2006)

Section 993.518  Compliance (currently suspended through 2006)

Section 993.601  More restrictive grade regulation (partially suspended through 2006)

Section 993.602  Maximum tolerances

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

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

There are approximately 1,100 producers of dried prunes in the production area and approximately 22 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $6,000,000.

An industry profile shows that 8 out of 21 handlers (38 percent) shipped over $6,000,000 worth of dried prunes in 2003 and could be considered large handlers by the Small Business Administration. Thirteen of the 21 handlers (62 percent) shipped under $6,000,000 worth of prunes and could be considered small handlers. An estimated 32 producers, or less than 3 percent of the 1,100 total producers, would be considered large growers with annual incomes over $750,000. The majority of handlers and producers of California dried prunes may be classified as small entities.

In addition, there are an estimated 30 importers, and one third-party entity that performs inspections under the order. USDA does not have precise information on these entities, but believes that the majority of the importers and the third-party inspection agency are small entities.

As recommended by the Committee, this rule indefinitely suspends handling and reporting requirements under the marketing order, including extending the temporary suspensions of outgoing inspection requirements and reporting regulations and the import regulations.

This action reduces the reporting and recordkeeping requirements for California prune handlers and importers; and reduces the committee's, prune handlers', and prune importers' associated administrative costs. This action also reduces the number of inspections performed by the inspection agency for both handlers and importers.

The benefits of this final rule are expected to accrue to all prune handlers and importers regardless of their size.

The deliberations about suspension of the marketing order for one year began at meetings held on April 3 and May 1, 2003, and continued to the present. In April 2004, the committee believed that such a suspension provides the industry with an opportunity to operate without regulation. For some members, a suspension was preferable to termination.

At the December 8, 2004, meeting, the committee discussed the impact of and alternatives to suspending the entire marketing order, and at the February 23, 2005, Executive Committee meeting, the members and industry representatives discussed the impact of and alternatives to suspending handling and reporting requirements, including extending the current suspensions of outgoing inspection requirements and reporting regulations.

At the March 15, 2005, committee meeting, the members received the recommendations of the Executive Committee and, being in unanimous accord, voted to rescind their previous recommendation to suspend the entire order in favor of recommending that the handling and reporting requirements be suspended indefinitely, including the currently-suspended outgoing inspection and volume control regulations.

The suspension permits the industry to operate for an indefinite period of time without most order requirements. This will allow growers and handlers time to consider which provisions in the marketing order might continue to meet their future needs.

This rule will not impose any additional reporting or recordkeeping requirements on either small or large California dried prune handlers. On the contrary, this action will remove reporting requirements on all prune handlers indefinitely. 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.

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

In addition, the committee's meetings were widely publicized throughout the prune industry and all interested persons were invited to attend the meeting and participate in committee deliberations on all issues at any meeting in the last two years, including task force meetings. Like all committee meetings, the April 16 and December 8, 2004, meetings; and the February 23 and March 15, 2005, meetings were public meetings; and all entities, both large and small, were encouraged to express views on this issue. The committee itself is composed of twenty-two members. Seven are handlers, fourteen are producers, and one is a public member. Moreover, the committee, its Executive Committee, and the marketing order task force, provide broad industry representation. Thus, this rule reflects their considerable deliberations and determinations. Finally, interested persons were invited to submit information on the regulatory and informational impacts of this action on small business.

Further, the Committee's meeting was widely publicized throughout the Prune industry and all interested persons were invited to attend the meeting and participate in Committee deliberations. Like all Committee meetings, the March 15, 2005, meeting was a public meeting and all entities, both large and small, were able to express their views on this issue.

An interim final rule concerning this action was published in the Federal Register on May 27, 2005. Copies of the rule were mailed by the Committee staff to all Committee members and Prune handlers. In addition, the rule was 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 July 26, 2005. No comments were received.

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

The U.S. Trade Representative has reviewed this final rule and concurs with its issuance.

After consideration of all relevant material presented, including the committee's recommendation, and other information, it is found that finalizing the interim final rule, without change, as published in the Federal Register (70 FR 30610, May 27, 2005) will tend to effectuate the declared policy of the Act.

The FAA proposed to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) with an AD to supersede AD 98-13-33, amendment 39-10624 (63 FR 34580, June 25, 1998). The existing AD applies to all Airbus Model A300 B2 and B4 series airplanes; Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called A300-600 series airplanes); and Model A310-200 and -300 series airplanes. The proposed AD was published in the Federal Register on April 5, 2005 (70 FR 17212), to continue to require repetitive tests to detect desynchronization of the rudder servo actuators, and adjustment or replacement of the spring rods of the rudder servo actuators, if necessary. The proposed AD would also require new repetitive tests/inspections/ analyses of the rudder servo actuators, and related investigative/corrective actions if necessary. The proposed AD states that accomplishing the new actions ends the existing repetitive requirements.

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

The commenter states that it can find no compelling reason for the proposed AD. The commenter notes that it has been accomplishing the requirements of AD 98-13-33 for several years and has had no significant findings. The commenter states that it has previously accomplished the actions in the parallel French airworthiness directive, F-2004-092, dated June 23, 2004, which introduced the inspection for dead travel of the input lever of the rudder servo control due to an isolated incident with a single operator. The commenter asserts that this incident most likely resulted from improper assembly and testing of the servo control during repair and overhaul of the component. Therefore, the commenter does not see the value of or need for the inspection for dead travel. The commenter suggests that resolution of the discrepancy with the input lever of the rudder servo control should be addressed by revising the applicable component maintenance manual.

We infer that the commenter is requesting that we withdraw the proposed AD. We do not agree. The information that we have received from the manufacturer and the Direction Générale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, does not indicate that the malfunction or misadjustment of the spring rods of the rudder servo actuator is an isolated incident. We find that the new repetitive tests, inspections, and analyses of the rudder servo actuators that will be newly required by this AD are necessary to ensure that all potential causes of desynchronization of the rudder servo actuators are addressed. As explained previously, desynchronization of one of the three rudder servo actuators, if combined with an engine failure, could result in the loss of the related hydraulic system and, potentially, loss of one of the two synchronized actuators. This condition could create additional fatigue loading and possible cracking on the attachment fittings and could result in the inability of the remaining synchronized actuator to maintain the commanded rudder deflection, which could result in reduced controllability of the airplane. The tests, inspections, and analyses, as well as any necessary investigative and corrective actions, required by this AD are intended to address this unsafe condition. We have not changed the final rule in this regard.

The commenter declares that the reporting requirement included in paragraph (n) of the proposed AD is unnecessary and does not enhance the value of the proposed requirements. The commenter states that reporting data at this point would not be relevant because there have been numerous opportunities to correct the unsafe condition prior to the proposed AD.

We partially agree with the commenter's request. Reporting any discrepancy will help to determine the extent of the unsafe condition in the affected fleet. Based on the results of these reports, we may determine that further investigative or corrective action is necessary. Reporting any discrepancy may also help us to determine if other conditions, as yet undetected, are present in the fleet, which could lead to desynchronization of the rudder servo actuators. For these reasons, this AD will continue to require reporting any discrepancy in accordance with the applicable referenced Airbus service bulletin.

However, we have determined that it is not necessary to require reporting the inspection results in which there are no findings. Thus, we have revised paragraph (n) of this AD to specify that only positive findings must be reported.

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

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

The following table provides the estimated costs for U.S. operators to comply with this AD. The average labor rate is $65 per hour.

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

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

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

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

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

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

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

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

The Civil Aviation Authority (CAA), which is the airworthiness authority for the United Kingdom, notified us that an unsafe condition may exist on all Short Brothers Model SD3-60 airplanes. The CAA advises that there have been reports of fatigue cracking found on the rudder horn spar. In one event, the rudder horn spar failed and the lower mass balance weights detached from the rudder horn spar, which caused structural damage to the rudder's front spar, rib 14, and outer skin. Cracking of the rudder horn spar, if not corrected, could lead to detachment of the mass balance weight of the rudder. The detachment of the mass balance weight could jam or restrict the movement of the rudder, which could result in reduced controllability of the airplane. Loss of a mass balance weight could also damage other parts of the airplane, which could result in reduced controllability of the airplane, or could result in an injury to a person or damage to property on the ground.

Short Brothers has issued Alert Service Bulletin SD360-55-A22, Revision 1, dated August 4, 2005. The service bulletin describes procedures for doing a visual inspection of the rudder for damage and an inspection of the balance weight attachment for discrepancies (discrepancies include potential rudder restriction and detachment of the balance weight). The service bulletin also describes procedures for a detailed visual inspection of the rudder horn spar for cracking and corrosion, a borescope inspection of the cleats for cracking and corrosion, and corrective action if necessary. The corrective action includes replacement of the rudder horn spar and cleats as specified in Part C of the service bulletin and an optional temporary repair to the rudder horn spar that includes replacement of the cleats.

The CAA mandated the service bulletin and issued British airworthiness directive G-2005-0021, dated July 6, 2005, to ensure the continued airworthiness of these airplanes in the United Kingdom.

The service bulletin refers to Short Brothers Repair Drawing SD3-03-6825XB, dated July 2005, as the appropriate source of service information for doing the temporary repair to the rudder horn spar including replacement of the cleats.

This airplane model is manufactured in the United Kingdom 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. Pursuant to this bilateral airworthiness agreement, the CAA has kept the FAA informed of the situation described above. We have examined the CAA's findings, evaluated all pertinent information, and determined that we need to issue an AD for products of this type design that are certificated for operation in the United States.

Therefore, we are issuing this AD to detect and correct cracking and corrosion of the rudder horn spar, which could lead to detachment of the mass balance weight of the rudder. The detachment of the mass balance weight could jam or restrict the movement of the rudder, which could result in reduced controllability of the airplane. Loss of a mass balance weight could also damage other parts of the airplane, which could result in reduced controllability of the airplane, or could result in an injury to a person or damage to property on the ground. This AD requires accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between the AD and the Service Bulletin.”

When less than five cracks are detected in the rudder horn spar that are each 1 inch or less (and no cracks found on the cleats), Shorts Alert Service Bulletin SD360-55-A22 specifies to repetitively inspect every 25 flight cycles for up to 100 flight cycles. However, this AD does not permit further flight if any crack is detected in the rudder horn spar. We have determined that, because of the safety implications and consequences associated with that cracking, any crack found on the rudder horn spar must be repaired before further flight. In addition, the service bulletin does not specify what the corrective action is after 100 flight cycles. This AD requires either replacing the rudder horn spar with a new rudder horn spar and replacing the cleats, part number (P/N) SD3-33-6404XA and -6405XA, with new improved cleats; or doing the temporary repair and then replacing the rudder horn spar with a new rudder horn spar.

In this AD, the “visual inspection” specified in the service bulletin is referred to as a “general visual inspection.” We have included the definition for a general visual inspection in a note in the AD.

In this AD, the “detailed visual inspection” specified in the service bulletin is referred to as a “detailed inspection.” We have included the definition for a detailed inspection in a note in the AD.

We consider this AD interim action. If final action is later identified, we may consider further rulemaking.

An unsafe condition exists that requires the immediate adoption of this AD; therefore, providing notice and opportunity for public comment before the AD is issued is impracticable, and good cause exists to make this AD effective in less than 30 days.

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 relevant written data, views, or arguments regarding this AD. Send your comments to the address listed under the ADDRESSES section. Include “Docket No. FAA-2005-22168; Directorate Identifier 2005-NM-146-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the AD that might suggest a need to modify it.

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

You may examine the AD docket on the Internet at http://dms.dot.gov , or 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 DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the Docket Management System receives them.

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

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

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

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

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

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

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

We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation.

The Direction General De L'Aviation Civile (DGAC), which is the airworthiness authority for France, recently notified us that an unsafe condition might exist on Turbomeca S.A. Arrius 2F turboshaft engines. In addition, on May 13, 2005, an uncommanded in-flight engine shutdown (IFSD) of an Arrius 2F engine resulted in the forced landing of a Eurocopter EC120B helicopter in the Gulf of Mexico. Investigation of the engine found that an interruption of engine lubrication due to excessive swelling of the check valve O-ring in the lubrication unit caused the IFSD. The amount of swelling of the O-ring depends on the class of oil used, standard (STD) or high-thermal stability (HTS), and the engine operating time. This condition, if not corrected, could result in an uncommanded in-flight shutdown of the engine, which could result in a forced autorotation landing and damage to the helicopter.

We have reviewed and approved the technical contents of Turbomeca Alert Service Bulletin (ASB) No. A319 79 4802, dated June 21, 2005, that describes procedures for replacing the O-ring on the check valve piston of the lubrication unit. The DGAC classified this alert service bulletin as mandatory and issued AD No. F-2005-122, dated July 20, 2005, in order to ensure the airworthiness of these Turbomeca S.A. Arrius 2F turboshaft engines in France.

This turboshaft engine model is manufactured in France, 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 DGAC kept the FAA informed of the situation described above. We have examined the findings of the DGAC, 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 Turbomeca S.A. Arrius 2F turboshaft engines of the same type design. We are issuing this AD to prevent an uncommanded in-flight shutdown of the engine, which could result in a forced autorotation landing and damage to the helicopter. This AD requires replacing the O-ring on the check valve piston in the lubrication unit at the following intervals:

• For engines that use HTS or an unknown class oil, within 300 hours time-since-new (TSN) or 50 hours after the effective date of this AD, whichever is later.

• For engines that use STD class oil, within 450 hours TSN or 50 hours after the effective date of this AD, whichever is later.

• Thereafter, replace the O-ring within 300 hours time-since-last replacement (TSR) on engines that use HTS class oil or 500 hours TSR on engines that use STD class oil.

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.

These actions are interim actions and we may take further rulemaking actions in the future.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to send us any written relevant data, views, or arguments regarding this AD. Send your comments to an address listed under ADDRESSES. Include “AD Docket No. FAA-2005-22039; Directorate Identifier 2005-NE-33-AD” in the subject line of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify it.

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

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

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

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

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

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

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

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

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

We prepared a summary of the costs to comply with this AD and placed it in the AD Docket.

The Direction Générale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, notified us that an unsafe condition may exist on certain Airbus Model A330-200, A330-300, A340-200, and A340-300 series airplanes; and A340-541 and -642 airplanes. The DGAC advises of an incident that occurred on a Model A330 series airplane, in which all six of the liquid crystal display units (DUs) for the electronic instrument system (EIS) (which is equipped with the EIS2 software standard) went blank simultaneously during flight. The DUs recovered automatically after approximately 40 seconds. This incident was attributed to an automatic reset function of the DUs. (After the DUs have been continuously powered for more than 6 days, an internal timer automatically resets them.) This condition, if not corrected, could result in loss of data from the DUs, which could reduce the ability of the flightcrew to control the airplane during adverse flight conditions.

Airbus has issued All Operator Telexes (AOTs) A330-31A3092 (for Model A330-200 and -300 series airplanes), A340-31A4102 (for Model A340-200 and -300 series airplanes), and A340-31A5023 (for Model A340-541 and -642 airplanes), all dated August 1, 2005. The AOTs are effective for airplanes of the identified models on which the EIS is equipped with the EIS2 software standard, version L4-1 or L-5. The AOTs describe procedures for resetting the DUs for the EIS by switching them off, waiting 5 seconds or longer, then switching the DUs back on again. The DGAC mandated the AOTs and issued French emergency airworthiness directive UF-2005-150, dated August 10, 2005, to ensure the continued airworthiness of these airplanes in France.

These airplane models are manufactured in France and are 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. Pursuant to this bilateral airworthiness agreement, the DGAC has kept the FAA informed of the situation described above. We have examined the DGAC's findings, evaluated all pertinent information, and determined that we need to issue an AD for products of this type design that are certificated for operation in the United States.

Therefore, we are issuing this AD to prevent automatic reset of the DUs for the EIS during flight and consequent loss of data from the DUs, which could reduce the ability of the flightcrew to control the airplane during adverse flight conditions. This AD requires repetitively resetting the DUs for the EIS either by accomplishing the actions specified in the AOTs described previously, or by performing a complete electrical shutdown of the airplane. We have determined that switching the DUs off and back on again may be properly performed by flight deck crew (or by certificated maintenance personnel) because this action does not require tools, precision measuring equipment, training, or pilot logbook endorsements, or the use of or reference to technical data that are not contained in the body of the AD.

We consider this AD interim action. The manufacturer is currently developing a modification that will address the unsafe condition identified in this AD. Once this modification is developed, approved, and available, we may consider additional rulemaking.

An unsafe condition exists that requires the immediate adoption of this AD; therefore, providing notice and opportunity for public comment before the AD is issued is impracticable, and good cause exists to make this AD effective in less than 30 days.

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 relevant written data, views, or arguments regarding this AD. Send your comments to an address listed in the ADDRESSES section. Include “Docket No. FAA-2005-22196; Directorate Identifier 2005-NM-170-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the AD that might suggest a need to modify it.

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

You may examine the AD docket on the Internet at http://dms.dot.gov , or 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 DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the Docket Management System receives them.

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

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

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

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

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

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

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

We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation.

The Direction Generale de L'Aviation Civile (DGAC), which is the airworthiness authority for France, notified us that an unsafe condition might exist on Turbomeca S.A. Arrius 2F turboshaft engines. The DGAC advised us of reports of restricted fuel flow caused by a dimensionally incorrect FCU filters. Ground run testing may not detect the fuel flow limitation and, therefore, it could go undetected until maximum power is needed for certain flight conditions. We are issuing this AD to detect a dimensionally incorrect FCU filter that could lead to an undetected limitation of fuel flow, limiting the maximum power available in-flight, which could result in the inability to continue safe flight, avoid obstacles or land safely.

We have reviewed and approved the technical contents of Turbomeca Mandatory Alert Service Bulletin No. A319 73 4823, dated May 11, 2005, that describes procedures for checking the correct position of the FCU fuel filter. The DGAC classified this service bulletin as mandatory and issued AD No. F-2005-088, in order to ensure the airworthiness of these engines in France.

This engine model is manufactured in France 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 Direction General De L'Aviation Civile (DGAC), which is the airworthiness authority for France, recently notified us that an unsafe condition might exist on certain Turbomeca S.A. Arrius 2F turboshaft engines. Under this bilateral airworthiness agreement, the DGAC kept the FAA informed of the situation described above. We have examined the findings of the DGAC, 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 Turbomeca S.A. Arrius 2F turboshaft engines of the same type design. We are issuing this AD to detect incorrect positioning of the FCU filter that could lead to an undetected limitation of fuel flow, limiting the maximum power available in-flight, which could result in the inability to continue safe flight, avoid obstacles or land safely. This AD requires a one-time removal and inspection of the fuel filter-holder assembly to determine that the fuel control unit (FCU) filter is in the correct position. The AD also requires that the Engine Maintenance Manuals be updated to include this inspection every time the FCU filter is removed from the fuel filter-holder assembly. 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 and was not preceded by notice and an opportunity for public comment; however, we invite you to send us any written relevant data, views, or arguments regarding this AD. Send your comments to an address listed under ADDRESSES. Include “AD Docket No. FAA-2005-21924; Directorate Identifier 2005-NE-30-AD” in the subject line of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify it.

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

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

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

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

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

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

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

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

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

We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES . Include “AD Docket No. 2005-NE-30-AD” in your request.

The FAA proposed to amend 14 CFR part 39 with a proposed airworthiness directive (AD). The proposed AD applies to Pratt & Whitney (PW) JT8D-1, -1A, -1B, -7, -7A, -7B, -9, -9A, -11, -15, -15A, -17, -17A, -17R, -17AR, -209, -217, -217A, -217C, and -219 turbofan engines. We published the proposed AD in the Federal Register on December 30, 2004 (69 FR 78359). That action proposed to require removing affected rotating parts overhauled by a certain repair vendor, and inspecting or replacing the parts as applicable.

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

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

One commenter requests that we remove the rear compressor rear hub from the list of affected parts. The commenter states that the part is a nickel alloy similar to the 13th stage disk and there is no cracking or corrosion associated with it. In addition, the rear compressor rear hub is not a life-limited part, and the serial numbers are not readily available. As a result, the commenter feels the proposed AD would force operators to inspect all parts, not just the listed serial number parts.

We agree. We have removed it from this AD.

One commenter asks that this AD include all parts improperly processed by a certain repair vendor, not just the high-pressure compressor.

We do not agree. The proposed AD addresses those parts that pose a safety threat. All other parts either present no known safety threat, or are already addressed through other applicable ADs and field notifications. If we decide that further AD action is necessary to address other parts, we may issue a separate AD at that time.

One commenter asks that we clarify the definition of “shop visit” contained in the AD. The commenter feels that an operator could interpret a shop visit as when an airplane upon which an affected engine is installed, goes into a hangar.

We agree. We included the following definition in the AD: “A shop visit is defined as an engine removal where engine maintenance entails separation of pairs of major engine flanges or the removal of a disk, hub or spool at a maintenance facility, regardless of the scheduled maintenance action or the reason for engine removal.”

One commenter asks that we not place time restrictions on operators to inspect rear compressor front and rear compressor rear hubs and instead inspect them when they are accessible. Because they aren't life-limited parts, the hubs are not tracked by serial numbers. The commenter believes the proposed AD would require operators to inspect every JT8D before March 31, 2008. Those inspections would force early removal of many engines. We partially agree. Table 1 of this AD lists all life-limited rear compressor front hubs, and operators must inspect them by the March 31, 2008, deadline. Table 2 of this AD lists all rear compressor front hubs that are non-life limited. Operators must inspect them at the next accessibility. We removed the rear compressor rear hubs from this AD, based on a previous comment.

One commenter asks us to explain how we determined the March 31, 2008 compliance date. The commenter states that it is unclear how we selected that compliance date since corrosion inspection ADs 2003-16-05 and 2003-12-07, as well as PW ASBs A6431 and A6435, designate July 18, 2011, as a compliance date.

We evaluated the results of a risk analysis based on inspection data obtained from a sample of parts repaired by the repair vendor. That analysis demonstrated a greater risk of failure if the parts were only inspected for corrosion and not for cracking as mandated in ADs 2003-16-05 and 2003-12-07. Based on that risk analysis, we set March 31, 2008, as the date by which operators must complete the inspections.

One commenter recommends inspecting all parts listed in Tables 1 and 2 that have zero cycles-in-service since May 14, 2001, using PW ASB A6442 and made available for use as spare parts.

We do not agree. Parts listed in Table 1 were subjected to shot peening that could mask surface cracks. Parts listed in Table 2 were not. If the parts in Table 1 were cracked and, thereafter, shot peened, the cracks will reopen once operated in an engine, a significant factor in our risk analysis and the resulting compliance schedule in the proposed AD. Since there is no effective inspection to detect these cracks, operators may use only parts that have been in service. This is consistent with the manufacturer's disposition instructions in ASB A6442 that state, “All compressor disks and hubs listed in Table 1 that are not installed in an engine MUST be scrapped.”

One commenter requests that the definition of installed part be included in this AD to prevent “operation of a part physically installed in a module.”

We do not agree. A definition of “installed part” is unnecessary because this proposed AD prohibits all parts with zero cycles-in-service that are listed in Table 1 from entering service, regardless of whether they are installed or not. However, we added a new paragraph (h) to prevent installing any engine that has an affected disk or hub that has zero cycles-in-service after May 14, 2001, and recodified the subsequent paragraphs.

One commenter asks that we explain the cost to operators, suggesting that we evaluate the cost as if every part fails inspection. The commenter states that the current market value for all affected parts is $14,413,020, and the cost to disassemble, inspect and reassemble engines outside of regularly scheduled maintenance is $1,766,440.

We disagree. We still consider our evaluation of cost as noted in the NPRM valid. We do not expect that every part will fail the inspection, although we estimate that the number will be substantial. In addition, we did not include the full cost of every disk in the economic analysis if the disks must be replaced before they reach their certified life, a normal operating expense. Accordingly, we didn't change the Costs to Comply.

One commenter asks that we add a sentence to Paragraph (g) that reads “This includes all parts on the shelf that have not been used.”

We do not agree. This AD is clear as written. We have not added the sentence.

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.

These actions are interim actions and we might take further rulemaking action in the future.

We estimate that this AD will affect about 632 JT8D engines installed on airplanes of U.S. registry. We estimate that 158 engines will require access to the high-pressure compressor outside of regularly scheduled maintenance, and will require 66 work hours per engine. The high pressure compressor section of the remaining 474 engines will be inspected during regularly scheduled maintenance, and will not require additional labor costs to inspect. The average labor rate is $65 per work hour. We estimate that half of the parts presently installed will require replacement, at a cost of approximately $6,730,800. Based on this information, we estimate the total cost of the AD to U.S. operators to be $7,398,620.

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

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

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

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

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

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

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

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

The Fastener Quality Act of 1999, Public Law 101-592 (as amended by Pub. L. 104-113, Pub. L. 105-234 and Pub. L. 106-34) requires the Secretary of Commerce to establish a program for the recordation of the identifying insignia of certain fasteners. The rules set forth at Subpart D of 15 CFR 280.300 et seq. accordingly provide for a recordation system, and that system is maintained at the United States Patent and Trademark Office (USPTO). One of the rules, 15 CFR 280.310(d), provides that all documents pertaining to recordation must be mailed to a particular postal box maintained by the USPTO in Washington, DC.

The efficiency of the insignia recordation program will be enhanced if documents submitted in connection with the program are mailed to a postal box that is close to the USPTO's headquarters in Alexandria, Virginia. Accordingly, Section 280.310(d) is amended to provide that these documents be mailed to that postal box.

This final rule amends section 280.30, Application for Insignia, to identify the postal box to which all documents pertaining to recordation should be sent.

This rule of agency organization and management is not subject to Executive Order 12866.

This rule does not contain policies with Federalism implications sufficient to warrant preparation of a Federalism assessment under Executive Order 12612.

Prior notice and an opportunity for public comment are not required for this rule of agency organization, procedure, or practice. 5 U.S.C. 553(b)(A). This rule revises the regulations to identify the address where documents submitted in connection with the recordal of fastener insignia may be mailed.

Because notice and comment are not required under 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) are inapplicable. As such, a regulatory flexibility analysis is not required.

This rule involves a collection of information that is subject to the Paperwork Reduction Act (PRA), and that has been approved by the Office of Management and Budget (OMB) under control number 0651-0028. Notwithstanding any other provision of the law, no person is required to comply, nor shall any person be subject to penalty for failure to comply with, a collection of information, subject to the requirements of the Paperwork Reduction Act, unless that collection of information displays a currently valid OMB Control Number.

This rule will not significantly affect the quality of the human environment. Therefore, an environmental assessment or Environmental Impact Statement is not required to be prepared under the National Environmental Policy Act of 1969.

The following sponsors have requested that FDA withdraw approval of the 16 NADAs and 1 ANADA listed in table 1 of this document because the products are no longer manufactured or marketed:

Following the withdrawal of approval of these NADAs, Biocraft Laboratories, Inc., IMPAX Laboratories, Inc., Jorgensen Laboratories, Inc., Pliva d.d., and Teva Pharmaceuticals USA are no longer sponsors of an approved application. Therefore, we are removing entries for these five sponsors from 21 CFR 510.600(c).

As provided below, the animal drug regulations are amended to reflect the withdrawal of approvals and a current format. In addition, FDA has noticed that the regulations do not reflect approved NADA 065-063 for Tetracycline Capsules sponsored by Eon Labs Manufacturing, Inc. At this time, the regulations in 21 CFR 520.2345a are amended to reflect this approved product.

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

On December 20, 2004, USAID published in the Federal Register (69 FR 75885-75887) a proposed rule to implement fully Section 641 of the Foreign Assistance Act of 1961, as amended. The Agency provided a forty five (45)-day public comment period on the proposed rule, which ended on February 3, 2005. The Agency also offered the public the opportunity to submit comments by surface mail, e-mail or fax.

The marking of foreign aid as assistance from the U.S. Government was first required during the Marshall Plan when Congress became concerned about poorly marked U.S. foreign aid donations to European countries. USAID's framework legislation, the Foreign Assistance Act of 1961, as amended, section 641, requires that all programs under the Foreign Assistance Act, including assistance awards, be identified appropriately overseas as “American Aid.” While USAID has required its contractors to mark U.S. Government-funded foreign assistance, that requirement has applied to recipients of grants and cooperative agreements only to the limited extent of acknowledging USAID funding in publications and media releases. A Commission on Public Diplomacy report, “Changing Minds, Winning Peace: a New Strategic Direction for U.S. Public Diplomacy in the Arab World,” both commends and encourages USAID to continue to “become more forthright about branding its activities, so recipients know that they are receiving contributions from the American people.”

Beneficiaries of U.S. aid receive billions of dollars of foreign assistance every year in the form of grants and cooperative agreements, often with little to no awareness that the assistance is provided by the American people through USAID. Clear evidence of the new visibility and value of foreign aid came in the aftermath of the recent U.S. tsunami relief effort, the first time USAID's new “brand identity” was used publicly. According to a State Department study, in 2004, favorable opinions of the U.S. were at record lows in many Muslim countries. But, in early 2005, favorability of the U.S. nearly doubled in Indonesia (from 37 to 66 percent) thanks to the massive delivery of—for the first time “well branded”—U.S. foreign assistance. A Pew Research study confirms this: “Positive opinions of the U.S. in Indonesia, which had plummeted to as low as 15 percent in 2003, also have rebounded to 38 percent. The U.S. tsunami aid effort has been widely hailed there; 79 percent of Indonesians say they have a more favorable view of the U.S. as a result of the relief efforts.” A senior U.S. diplomat summarized the impact of our campaign this way: “The people of Ache (Indonesia) saw the branding; they knew right away the U.S. Government was responding. That absolutely had a major impact on their perception of the U.S. I think our new global branding is a major foreign policy achievement.” Such awareness of the generosity of the American people is an important part of the U.S. Government's public diplomacy strategy and a critical part of the post 9/11 war against terrorism.

USAID takes the following action to ensure that the American people are visibly acknowledged for their generosity in providing foreign assistance. USAID has carefully considered comments to the proposed rule, and adjusted the final rule in response, 1 as set out more fully below.

The purpose of this rule is to bring USAID regulations into full alignment with Section 641 of the Foreign Assistance Act of 1961, as amended, which requires that all programs under the Foreign Assistance Act be marked appropriately overseas as “American Aid.” USAID also takes this action for the policy reasons noted above.

This rule adds a new provision, (§ 226.91), to 22 CFR part 226, Administration of Assistance Awards to U.S. Non-Governmental Organizations, and amends § 226.2 by adding new definitions.

The new § 226.91 applies to all Federal financial assistance awarded by USAID to U.S. Non-Governmental Organizations (NGOs). Award documentation for such Federal financial assistance will include standard clauses that incorporate the requirements of § 226.91, and USAID internal directives will highlight, explain, and incorporate § 226.91 by reference.

1. Scope of the marking requirement. The rule is intended to require marking for all implementation activities overseas under USAID funded grants and cooperative agreements and other assistance awards to NGOs, and to require use of a marking provision in any NGO-issued subaward of USAID funding.

2. Threshold for marking requirements. The rule applies to all USAID partially or fully funded grants and cooperative agreements and other assistance awards to U.S. NGOs, and to subawards of USAID funding issued by U.S. NGOs.

3. Extent of the marking requirements. In most cases, marking of a size and prominence equivalent to that of the recipients and/or other donors is required. USAID reserves the right to require marking of a greater size or prominence on a per case basis, when it is the majority donor of a program, project, activity, public communication, or commodity. In the event the recipient or other donor does not chose to mark with its own graphic identity or logo, USAID reserves the right to require marking with the USAID Identity.

USAID has greatly reduced the paperwork required to comply with this rule by limiting those who must submit it. The Agreement Officer will request a “Branding Strategy,” defined in 22 CFR 226.2, only from “Apparent Successful Applicants,” defined in 22 CFR 226.2 for USAID funds which have been recommended for award after technical evaluation of their applications. The Branding Strategy will describe how the program will be named, promoted, and communicated to beneficiaries and cooperating country citizens and how donors will be acknowledged. The Branding Strategy will be a required submission but will not be competitively evaluated. The Branding Strategy will be reviewed for adequacy, negotiated, and included in the award by the Agreement Officer. The Agreement Officer also will request Apparent Successful Applicants to provide a “Marking Plan,” defined at 22 CFR 226.2., detailing the type (for example, plaque or adhesive labels) and level of marking (for example, every computer or just one sign) for activities, commodities, public communications and other deliverable items that will visibly bear the USAID Identity. The Marking Plan also will be reviewed for adequacy, negotiated, and included in the award by the Agreement Officer. The approved Marking Plan will be used to monitor compliance with marking requirements. Further, specific marking instructions and examples will be provided to recipients in the USAID Partner Co-Branding Guide. USAID will consult with interested parties on development of the guide.

4. Exceptions. USAID has established “Presumptive Exceptions,” that may apply to obviate marking requirements where marking would interfere with USAID and recipient program goals, or marking would be inefficient or ineffective. Applicants may request the USAID Agreement Officer to approve one or more applicable Presumptive Exceptions as part of their Marking Plan. Any approved exceptions will apply for the life of the award, unless provided otherwise. The “Presumptive Exceptions” provision is described fully at 22 CFR § 226.91 (h).

5. Waiver provisions. Because USAID intends that marking requirements be carried out reasonably, erring on the side of safety, USAID has provided in the rule an “emergency” waiver authority for USAID Principal Officers, defined at 22 CFR 226.2, who currently exercise similar waiver authority for marking requirements under contracts. By virtue of being posted in the cooperating country, Principal Officers have access to current and relevant information concerning political, safety and security concerns, including that provided by recipients, and can anticipate adverse impact in the cooperating country. No marking is required while a waiver request is pending determination by a USAID Principal Officer. The waiver provision is described fully below.

In sum, Presumptive Exceptions will be approved by the Agreement Officers, waivers by the Principal Officers. Inclusion of the Presumptive Exceptions provision is intended to address the majority of common cases where USAID marking requirements may not apply; the waiver provision is intended to address cooperating country political, safety and security concerns, emergencies, or special cases.

Please note, when marking with the USAID Identity is not required due to an exception or waiver, USAID may review how program materials will be marked if the USAID identity is removed.

6. Compliance. USAID will monitor and enforce the approved Marking Plan in USAID awards, and USAID's Office of the Inspector General will audit both USAID and recipient compliance with the approved Marking Plan. Recipients in non-compliance with the Marking Plan are subject to the suspension and termination provisions of 22 CFR 226.61 and 226.62.

7. Costs. Recipients are required to submit proposed costs for branding and marking as part of their total cost estimate, which may be revised and negotiated when Apparent Successful Applicants are required to submit a Marking Plan. All marking costs that are reasonable, allocable and allowable will be funded by USAID.

On December 20, 2004, USAID published in the Federal Register (Volume 69, Number 243, Page 75885-75887) a Proposed Rule for Administration of Assistance Awards to U.S. Non-Governmental Organizations, Marking Requirements. By February 3, 2005, the closing date for comments, USAID received forty-seven (47) comments, including comments from NGOs that have received USAID funding, trade associations that represent them, and other interested parties. All of the comments were read, and most are discussed below and reflected in the final rule, on the following basis: While there is no legal requirement to respond to every comment or discuss every fact or opinion included, all have been considered that could potentially challenge a fundamental premise or are relevant and significant.

The following is a summary of comments by issue, and the Agency's responses to those comments.

Comment: Several comments expressed concern that USAID restricted discussion of the proposed marking requirements by sending an Agency notice to employees, requesting that all comments on the proposed rule be made through the rulemaking process.

Response: USAID engaged in rulemaking to ensure that the proposed rule would benefit from public comment; to provide transparency; and so all interested parties would have an equal opportunity to comment, not just those in the Washington area or with access to USAID staff. The Agency notice was intended to ensure that comments by NGOs and other interested parties would be taken into account during a formal process, rather than through informal conversations with USAID employees who could not directly affect its outcome. As part of this formal rulemaking process, USAID is bound by the “ex parte contact” rule to limit comments to the rulemaking process, to ensure the final rule was based on comments in the public record, as well as Agency expertise.

Comment: While there was nearly uniform support for the purpose of the proposed rule, to ensure that aid recipients overseas understand that all USAID-funded assistance awards are from the American people, several comments challenged the authority of the Agency to issue a rule requiring NGOs to mark USAID funded assistance with the USAID Identity.

Response: USAID's framework legislation, the Foreign Assistance Act of 1961, as amended, Section 641, provides that “[p]rograms under this Act shall be identified appropriately overseas as ‘American Aid.’ ” Section 621 of that same Act provides that the head of USAID “may from time to time promulgate such rules and regulations as may be necessary” to carry out Agency functions under the Act, including Section 641 marking requirements. This authority is not contradicted, as one commenter argues, because Congress did not say explicitly how the marking requirement was to be implemented. Under the above authority, implementation is left to Agency discretion.

Comment: Several comments also questioned the timing and reason for the rule, pointing out that USAID has existing, less comprehensive marking requirements for media products and publications in its standard provisions for grants to NGOs.

Response: In response to the 9/11 tragedy, the U.S. national security strategy has been revised to include, for the first time, development along with diplomacy and defense. As the lead development assistance agency of the U.S. Government, USAID has the responsibility to ensure that international development plays a vital role in national security by ensuring beneficiaries are aware the aid—including the funding of grants and cooperative agreements—is from the American people. Recent surveys show that more comprehensive marking requirements result in a much more favorable impression of the U.S abroad.

Comment: Several comments also questioned the approval of the proposed rule by the Office of Management and Budget (OMB) or argued that before engaging in rulemaking, USAID had to seek a deviation from OMB under 22 CFR part 226.4.

Response: Both the proposed rule and final rule have been reviewed by OMB's Office of Information and Regulatory Affairs under Executive Order 12866. The deviation procedure set forth at 22 CFR 226.4 is not pertinent. As noted above, section 621 of the Foreign Assistance Act of 1961, as amended, provides USAID with statutory rulemaking authority. USAID used this rulemaking authority to issue 22 CFR part 226, Administration of Assistance Awards to U.S. Non-Governmental Organizations, including section 226.1, which provides that “[e]xcept as otherwise authorized by statute, this part establishes uniform administrative requirements * * *' As noted in the proposed rule and above, marking is expressly required by statute, and so comes within the ‘otherwise authorized by statute’ exception of § 226.1. Section 226.4, “Deviations,” is not related to the purpose and applicability of the regulations, but rather deviations from their general applicability as authorized by OMB and if not prohibited by statute. The comments calling for USAID to obtain an OMB deviation to engage in rulemaking have the purpose of such a deviation backwards: A deviation is not required to permit rulemaking, particularly when rulemaking is expressly required by a statute—but to deviate from rules already promulgated by rulemaking and included in any part 226 of 22 CFR. Any reading of § 226.4 to the contrary contradicts with its plain language, and would frustrate its purpose by locking the current version of 22 CFR part 226 in stone, a result contrary to USAID's express and ongoing rulemaking authority, section 621 of the Foreign Assistance Act of 1961, as amended.

Comment: No similar policy concerning marking is apparently being pursued by the Department of State, which has overall responsibility for conduct of foreign relations. Thus the marking requirement is simply ‘a USAID attempt to raise its visibility.’

Response: The USAID marking initiative, including the extension of full marking requirements to NGOs, has been coordinated with the U.S. Department of State. Programs implemented by the State Department, such as the Middle East Partnership Initiative (MEPI) and the President's Emergency Plan For AIDS Relief (PEPFAR) under the authority of the Global AIDS Coordinator, have their own marking requirements. USAID is the lead foreign assistance agency of the U.S. Government, and it is appropriate for USAID to exercise leadership in the marking of foreign assistance. Because USAID often plays a role in implementing programs funded in part or in whole by sister agencies such as the Department of State, recipients may be required to include the logo of other U.S. Government agencies on USAID funded programs, projects, activities, public communications, and commodities. In such circumstances, guidance will be provided on a case by case basis.

The characterization of the initiative as simply a ‘USAID attempt to raise its visibility overseas’ misinterprets the intention of the message and the design of the USAID Identity with its emphasis not on USAID as the acronym for the Agency but ‘US-AID’ (differentiated by colors) as a “brand” of foreign assistance, like Japanese or British aid, as well as the emphasis of the tagline “From the American People.”

Comment: USAID also received many comments to the effect that the proposed rule undercuts the independence of grantees, oversteps the Federal Grant and Cooperative Agreement Act, makes grantees an arm of the U. S. Government and, by extending marking requirements, is treating grantees like contractors.

Response: Marking is required by the Foreign Assistance Act, as noted above. Nothing in the marking requirement is inconsistent with the definition of a grant—to accomplish a public purpose of support or stimulation authorized by a federal statute—in this case the Foreign Assistance Act. Marking does not change the funding or purpose of a grant or cooperative agreement. All the marking requirement does is raise the level of visibility of the American people's donation. Other donors to NGOs require similar acknowledgement. See EU Visibility Guidelines for External Actions, November 2002. The co-branding requirements established by this rule are much less comprehensive than USAID's branding requirements for contractors, which do not permit co-branding or marking with a contractor logo, and establish rigorous design standards similar to those used for USAID's own external communications.

Comment: Several comments expressed concern that markings with high visibility would block host-country national ‘ownership’ of the program or project, cause local citizens to view projects adversely, compromise NGOs' apolitical position in a cooperating country or otherwise harm the acceptance and effectiveness of programs and projects in some situations.

Response: The Branding Strategy and Marking Plan submitted by the Apparent Successful Applicant provides the opportunity to propose a program or project name, outline the promotional and communication activities, and to recommend which items are to be marked. Such participation by recipients ‘up front’ should ensure that their concerns about marking requirements are addressed in program implementation. USAID also has included a “Presumptive Exceptions” provision that may apply to obviate marking requirements, see section 226.91(h) below. Also, USAID has amended the ‘waiver provision’ of the final rule to include waivers in case of adverse reaction in the cooperating country, see section 226.91(j), below.

USAID employees are dedicated development professionals who share NGO partners' focus on designing and implementing successful programs. They are responsible for reporting results and ultimately accountable to the Executive Branch, Congress, and the American people for return on their investment. For these reasons, USAID will ensure that use of markings does not cause the program or project to fail.

Comment: Several comments suggested including marking requirements in the initial Request for Proposals (RFPs) or Annual Program Statements (APS) for implementation of a program or project. The comments also included many suggestions for more flexibility in application of the marking requirements.

Response: USAID has drafted the rule to minimize the burden on applicants, and to maximize flexibility. Only those Apparent Successful Applicants who have been recommended for award after technical evaluation will be requested to submit a Branding Strategy and Marking Plan by the Agreement Officer. Both the Strategy and Plan enable implementing partners to recommend how to customize global marking requirements to individual activities, subject to the approval of the Agreement Officer.

Comment: The comments also expressed concern over, and requested clarification about, the breadth—for example, ‘all’ commodities—of the marking requirements.

Response: The Marking Plan enables implementing partners to propose the appropriate level of marking by detailing program commodities that will visibly bear the USAID Identity (for example, mark all computers but not all desks and chairs in a school room). The new ‘Presumptive Exceptions’ provision narrows the breadth of the marking requirement on a case-by-case basis, as set forth in the final rule. It also includes a de minimis' rule for items too small or otherwise impracticable to mark.

Comment: The comments also raised calls for consultation by USAID on the creation of the referenced ‘USAID Partner Co-Branding Guide.’

Response: While the specific implementation of statutory marking requirements is well within USAID's sole discretion, USAID will actively consult with interested parties on the USAID Partner Co-Branding Guide.

Comment: Several comments requested clarification that the marking requirement does not apply to recipient organization offices or vehicles.

Response: Because the intent of the USAID marking requirements is to mark programs and projects, not people, the final rule does not require marking of vehicles, offices, and other administrative items for internal use by the recipient. See Definitions, “Commodities,” § 226.2, below.

Comment: Many of the comments raised security concerns and, while praising the concept, additional questions about the waiver procedure. There was also considerable confusion about application of the ‘no double standard’ policy and requests to delete the provision directing Mission Directors to recommend removal of a recipient organization's own marking when granting a waiver. Finally, there were calls for waivers of longer than six months duration without review and for blanket waivers under certain circumstances, such as when a recipient was implementing a USAID funded program in a country in which U.S. Government employees received danger pay or where there were active U.S. Government military operations.

Response: USAID is determined to implement these marking requirements by erring on the side of safety. Recipients in good faith may request a waiver through the Cognizant Technical Officer (CTO) at any time after award. No marking is required while a waiver determination is pending. The waiver provision has been changed to clarify that the ‘no double standard’ provision requires the USAID Principal Officer making the waiver determination to consider at a minimum, information provided by the recipient in its request for the waiver (NGOs) and U.S Government security information, where available. The provision concerning Principal Officers' recommendations to recipients about removal of their own markings has been deleted. Decisions of the Principal Officer can be appealed to that Principal Officer's cognizant Assistant Administrator in USAID.

Comment: Several comments expressed concern or confusion about the provisions in the proposed rule at § 226.91(j) and (k), providing for disclaimers of a U.S. Government employment status for recipient employees engaging in public speaking, writing or promotional efforts concerning the USAID funded program or project, and disclaimers of U.S. Government employment status for use of the USAID Identity on employee business cards or other personally identifying materials.

Response: Sections 226.91(j) and (k) in the proposed rule have been deleted from the final rule. Recipients must seek guidance from the Cognizant Technical Officer (CTO) concerning any employee use of the USAID Identity on employee business cards or other personally identifying materials.

Miscellaneous changes to the final rule based on general comments or Agency review: The non-retroactivity provision has been clarified in the final rule, and an additional presumptive exception has been added to address International Committee of the Red Cross concerns that any required marking not violate international neutrality standards. The final rule also is clarified to state expressly that marking applies to commodities provided under Title II Food Aid; the Food Aid regulations at 22 CFR 211 will be subsequently amended to take into account this final rule. Finally, §§ 226.91(f) Exceptions and 226.91(g) Waivers in the proposed rule have been re-lettered 226.91(h) Exceptions and § 226.91(j) Waivers in the final rule.

Comment, 226.2., Definitions: several comments called for USAID to define further terms such as activity, equipment, programs, projects, and supplies.

Response: USAID has amended the definitions section to include definitions of “Activity,” “Programs,” “Projects,” “Principal Officers,” “Subrecipient” and “Technical Assistance” from USAID's Automated Directive System Glossary. In addition, definitions of “Apparent Successful Applicant,” “Branding Strategy” and “Marking Plan” have been added. “Equipment” and “Supplies” are already defined at 22 CFR 226.2.

Comment, 226.90, Appeals: several comments called for USAID to explicitly provide an appeals process for a USAID Principal Officer's determination regarding a waiver request.

Response: Agreed. Decisions of the Principal Officer can be appealed to that Principal Officer's cognizant Assistant Administrator in USAID.

Comment, 226.91(a), “all programs, projects, activities, public communications and commodities funded by USAID”: several comments were concerned about the breadth of the marking requirement, and requested a ‘de minimis’ exception to marking requirements or further definition of the terms commodities, supplies and the like.

Response: USAID provides an exclusion for vehicles, offices and non-program deliverable, administrative items for recipient's internal use in the definition of ‘commodities’, see definitions, § 226.2, and also a ‘Presumptive Exceptions’ provision for items too small or impracticable to mark, see section § 226.91 (h)(5).

Comment, § 226.91(a), applicability to subawards: Several comments asked for clarification or recommended that marking requirements not ‘flow down’ to subawards.

Response: A ‘flow down’ required clause is included in the final rule. Because subrecipients are the final implementing partner for many USAID funded grants and cooperative agreements, the marking requirements would have only limited effect on cooperating country recipients unless the marking requirements flow down to subawards and subrecipients.

Comment, § 226.91(a)(1)-(3): There were many comments questioning the application of the three-tiered ‘percentage of funding’ trigger for marking requirements.

Response: the three-tiered system has been deleted and replaced with a much simpler provision requiring marking with the USAID Identity of a size and prominence equivalent to that of the recipient or other donors for all grants or cooperative agreements or other awards or subawards which USAID is partially or fully funding. USAID reserves the right to require marking of a greater size on a per case basis, when it is the majority donor.

Comment, § 226.91(c): Several comments raised concerns that overzealous USAID marking requirements might compromise or undercut program or project goals or conflict with local practices or laws.

Response: USAID has added a ‘Presumptive Exceptions’ provision that will apply, at the Agreement Officer's discretion, to obviate marking requirements where marking would interfere with USAID and recipient goals, or marking would be inefficient, ineffective, or in conflict with local norms. There is also an exception if marking would be contrary to international law. Recipients will have a chance to request approval of these or any other applicable Presumptive Exceptions in their Marking Plan. All applicable exceptions will be approved and included in the Marking Plan by the USAID Agreement Officer.

Comment, § 226.91(d): There were several requests to define further ‘technical assistance’ and state exactly what must be marked. In addition, specific concern was expressed that the application of marking requirements to election materials and monitoring, independent media programs, public service announcements and other independent radio or television broadcasts, and civil and human rights work might undercut the goals of those programs in fostering a civil society independent from identification with the cooperating country government or other state actors.

Response: USAID has included a definition of “technical assistance” in the final rule at § 226.2. USAID has also included a ‘Presumptive Exceptions’ section in the final rule, see § 226.91 (h), which addresses concerns about marking election or democracy materials, independent media products, and other politically sensitive programs, projects, or activities.

Comments, § 226.91(f), waivers: There were many comments and questions about application of the waiver provisions. While there was widespread support of the waiver concept, comments differed on its proposed application. USAID was advised to consider waivers of an indeterminate duration; to vest waiver authority in, variously, the Agreement Officer, the CTO, an official whose performance was not tied to desired Agency outcomes in a particular country; or to create a ‘marking’ ombudsman. Several comments expressed concern that Mission Directors or other Principle Officers have not readily exercised other waiver authorities, or would be restrained in their exercise of waiver authority by Ambassadors or other State Department officials.

Response: As noted above in General Comments, changes have been made to the waiver provision based on comments received in the rulemaking process. Specifically, USAID accepts the comment that the waivers be of longer than six months duration; the waiver term has been changed to provide for a waiver of unlimited duration but one that is subject to Principal Officer review at any time due to changed circumstances. USAID also accepts the suggestion that an appeal process be provided, and allows the Principal Officer's waiver decision to be appealed to the cognizant Assistant Administrator in USAID.

Despite these changes, the waiver authority remains in the first instance with the USAID Principal Officers at an overseas post. USAID has confidence in its senior officials on the ground, who as a class have been making waiver determinations on marking requirements for contractors and waivers in other sensitive areas, for years. The appeals process provides for reconsideration of Principal Officer determinations.

Comment. § 226.91(g), role of CTOs in monitoring: Several comments expressed concern that the CTO was required to ‘police’ marking requirements.

Response: USAID intends that the marking requirements, like other requirements of the USAID grant or cooperative agreement or other assistance award, be monitored and, if need be, enforced. USAID has simplified and clarified the process: the Marking Plan, once it is approved and incorporated in the award, becomes the basis for CTO monitoring. USAID will be amending its internal ‘CTO Designation Letter’ and providing specific training to CTOs to cover these new responsibilities.

Comment, § 226.91(h), materiality of marking requirement: Several comments expressed concern or even intimidation about the designation of the marking requirement as a ‘material’ provision of the grant or cooperative agreement.

Response: The term ‘material’ has been deleted, and the enforcement provisions are the same uniform suspension and termination provisions that apply to all other provisions of the award, see 22 CFR 226.61 and 226.62.

Comment, § 226.91(j): There were several comments that pointed out the incorrect reference to the cost principles OMB Circular A-110 in the proposed rule.

Response: The reference has been corrected to the cost principles of OMB Circular A-122.

Comment, § 226.91(k): One comment objected to the proposed requirement that recipients of USAID funded grants and cooperative agreements must have an organization policy in turn requiring recipient employees to state they are not representing USAID and their comments do not necessarily reflect the views of USAID, when speaking, writing, teaching or engaging in promotional efforts regarding USAID funded programs or projects.

Response: This proposed provision has been deleted from the final rule, along with the proposed provision concerning the recipient's employee's use of the USAID Identity on employee business cards and other personally identifying material, § 226.91 (j). As stated above, recipients should consult with their CTOs concerning any use of the USAID Identity by recipient's employees on personally identifying materials such as business cards.

OMB has determined that the requirements for Apparent Successful Applicants to submit a Branding Strategy and Marking Plan are by virtue of inclusion in this regulation information collections affecting the public within the meaning of the Paperwork Reduction Act. The requirement to submit a Branding Strategy and Marking Plan will not take effect until publication of OMB approval of the collection of information by separate notice in the Federal Register .

This notice initiates the public comment period on the collection of information required by the requirement to submit a Branding Strategy and Marking Plan. The proposed information collection consists of the requirement for Apparent Successful Applicants to Submit a Branding Strategy and Marking Plan, defined in this regulation. No record keeping burden is known to result from the proposed collection of information.

Estimated total annual reporting burden for the period January 2006-January 2009 that will result from the collections of information is presented below:

Pursuant to 5 CFR 1320.8. (d)(1), USAID is seeking comment on the above requirement to submit a Branding Strategy and Marking Plan. Specifically, the public is invite to

(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g. , permitting electronic submission of responses. Written comments should be sent within 60 days of the date of this notice by email to ‘ markingnprm@usaid.gov ’ or by surface mail to John Niemeyer, Assistant General Counsel, Office of the General Counsel, USAID, Rm. 6.06.95, 1300 Pennsylvania Ave., NW., Washington, DC 20523; telephone: (202) 712-4776 (this is not a toll-free number).

Executive Order 12866, Regulatory Planning and Review, requires that regulations be reviewed to ensure that they are consistent with the priorities and principles set forth in the EO 12866. As discussed above, the Office of Management and Budget (OMB) reviewed this rule at USAID's request. This rulemaking implements statutory authority and reflects USAID's response to comments received on the proposed rule published on December 20, 2004 in the Federal Register (69 FR 75885-87).

The Regulatory Flexibility Act (5 U.S.C. 605(b)) requires the Federal government to anticipate and reduce the impact of rules and paperwork requirements on small businesses and other small entities. In accordance with that Act, the USAID Deputy Administrator has reviewed and approved this rule, and in so doing certifies that this rule will not have a significant economic impact on a substantial number of small entities.

Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) establishes requirements for Federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments, and on the private sector. This rule does not impose any Federal mandates on any state, local, or tribal governments, or the private sector, within the meaning of the Unfunded Mandates Reform Act of 1995.

Section 654 of the Treasury and General Government Appropriations Act of 1999 requires Federal agencies to determine whether a proposed policy or regulation may affect family well-being. If the agency's determination is affirmative, then the agency must prepare an impact assessment addressing seven criteria specified in the law. The Agency has determined that these regulations will not have an impact on family well-being as defined in the legislation.

Executive Order 13132, “Federalism,” requires that Federal agencies consult with state and local government officials in the development of regulatory policies with federalism implications. The Agency has determined that this rule does not have federalism implications that require special consultations with state and local government officials.

This Final Rule affects direct grant programs that are subject to Executive Order 12372 and the regulations in 34 CFR part 79. The objective of the Executive Order is to foster an intergovernmental partnership and to promote federalism by relying on processes developed by state and local governments for coordination and review of proposed Federal financial assistance.

The Agency has concluded that this rule will not create or affect any Federal financial assistance to states. However, to the extent this rule falls under the Order, we intend this document to provide early notification of the Agency's specific plans and actions for the affected programs.

This regulation is not a major rule as defined in 5 U.S.C. Chapter 8.

You may view this document, as well as other U.S. Agency for International Development documents published in the Federal Register , in text or Adobe Portable Document Format (PDF) on the Internet at the following site:

To use PDF you must have Adobe Acrobat Reader, [which is available free at this site]. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC area at (202) 512-1530.

Each state has a SIP containing the control measures and strategies used to attain and maintain the national ambient air quality standards (NAAQS). The SIP is extensive, containing such elements as air pollution control regulations, emission inventories, monitoring networks, attainment demonstrations, and enforcement mechanisms.

Each state must formally adopt the control measures and strategies in the SIP after the public has had an opportunity to comment on them and then submit the SIP to EPA. Once these control measures and strategies are approved by EPA, after notice and comment, they are incorporated into the federally approved SIP and are identified in part 52 “Approval and Promulgation of Implementation Plans.” The full text of the state regulation approved by EPA is not reproduced in its entirety in 40 CFR part 52, but is “incorporated by reference.” This means that EPA has approved a given state regulation with a specific effective date. The public is referred to the location of the full text version should they want to know which measures are contained in a given SIP. The information provided allows EPA and the public to monitor the extent to which a state implements a SIP to attain and maintain the NAAQS and to take enforcement action if necessary.

The SIP is a living document which the state can revise as necessary to address the unique air pollution problems in the state. Therefore, EPA from time to time must take action on SIP revisions containing new and/or revised regulations as being part of the SIP. On May 22, 1997, (62 FR 27968), EPA revised the procedures for incorporating by reference (IBR), into the Code of Federal Regulations, materials submitted by states in their EPA-approved SIP revisions. These changes revised the format for the identification of the SIP in 40 CFR part 52, streamlined the mechanisms for announcing EPA approval of revisions to a SIP, and streamlined the mechanisms for EPA's updating of the IBR information contained for each SIP in 40 CFR part 52. Pursuant to these revised procedures, EPA is revising the format for identification of the Chattanooga portion of the Tennessee SIP, appearing in 40 CFR part 52. EPA has previously revised the format for the identification of the Tennessee SIP and the Memphis-Shelby County and Knox County portions of the SIP.

EPA has determined that today's action falls under the “good cause” exemption in section 553(b)(3)(B) of the Administrative Procedure Act (APA) which, upon finding “good cause,” authorizes agencies to dispense with public participation, and APA section 553(d)(3) which allows an agency to make an action effective immediately (thereby avoiding the 30-day delayed effective date otherwise provided for in the APA). Today's administrative action simply codifies provisions which are already in effect as a matter of law in Federal and approved state programs. Under section 553 of the APA, an agency may find good cause where procedures are “impractical, unnecessary, or contrary to the public interest.” Public comment for this administrative action is “unnecessary” and “contrary to the public interest” since the codification only reflects existing law. Immediate notice of this action in the Federal Register benefits the public by providing the public notice of the Chattanooga portion of the Tennessee SIP in Tennessee's “Identification of Plan” portion of 40 CFR part 52.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this administrative action is not a “significant regulatory action” and is therefore not subject to review by the Office of Management and Budget. This action is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866. Because the Agency has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the APA or any other statute as indicated in the SUPPLEMENTARY INFORMATION section above, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq., ) or to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of UMRA. This administrative action also 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, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it 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). This administrative action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant. This administrative action does not involve technical standards; thus the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272) do not apply. This administrative action also does not involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994). This administrative action does not impose an information collection burden under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). EPA's compliance with these Statutes and Executive Orders for the underlying rules are discussed in previous actions taken on Chattanooga, Tennessee's rules.

The Congressional Review Act (CRA) (5 U.S.C. 801 et seq. ), as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary or contrary to the public interest. Today's administrative action simply codifies provisions which are already in effect as a matter of law in Federal and approved State programs. 5 U.S.C. 808(2). These announced actions were effective when EPA approved them through previous rulemaking actions. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this action in the Federal Register . This revision to Chattanooga's portion of the Tennessee SIP in the “Identification of Plan” section of 40 CFR part 52 is not a “major rule” as defined by 5 U.S.C. 804(2).

EPA has also determined that the provisions of section 307(b)(1) of the Clean Air Act pertaining to petitions for judicial review are not applicable to this action. This action is simply an announcement of prior rulemakings that have previously undergone notice-and-comment rulemaking. Prior EPA rulemaking actions for each individual component of the Chattanooga portion of the Tennessee SIP previously afforded interested parties the opportunity to file a petition for judicial review in the United States Court of Appeals for the appropriate circuit within 60 days of such rulemaking action.

On May 26, 2005 (70 FR 30396), EPA proposed approval of SIP revisions for the South Carolina and Georgia EAC Areas demonstrating attainment and maintenance of the 8-hour ozone standard, 0.08 parts per million (ppm), in these EAC Areas by December 31, 2007. 1 Additional information regarding the SIP revisions being approved today is available in the proposed rule (70 FR 30396, May 26, 2005) and in the Docket for this action. Only two of the ten South Carolina and Georgia EAC Areas, Appalachian and Central Midlands, include counties designated as nonattainment deferred. All of the other counties in the South Carolina and Georgia EAC Areas are designated as unclassifiable/attainment. Additional information regarding the designations process, and the South Carolina and Georgia EAC Area designations, is available in 69 FR 23858 (April 30, 2004). 2 The SIP revisions being approved today are consistent with the requirements established in the EAC Protocol and related regulations.

EPA received public comments for thirty days on the SIP revisions being approved today. Several comments were received and only one opposed the proposal, but for reasons not directly related to the substance of the SIP revisions. These comments are discussed below, in Part III. “Response to Comments.”

An EAC is an agreement between a state, local governments, and EPA to implement measures not necessarily required by the Clean Air Act (CAA) in order to achieve cleaner air as soon as possible. 3 Communities close to or exceeding the 8-hour ozone standard that have elected to enter into an EAC have started reducing air pollution at least two years earlier than required by the CAA. In many cases, these reductions will be achieved by local air pollution control measures not otherwise mandated under the CAA. In accordance with the EAC Protocol, South Carolina submitted EACs for the South Carolina and Georgia EAC Areas in December, 2002. Georgia submitted materials for the Lower Savannah EAC Area on December 31, 2002. The compacts themselves were signed by state air quality officials in both Georgia and South Carolina, representatives of the local communities, and the Regional Administrator for EPA Region 4. The EAC program was designed for areas that approached or monitored violations of the 8-hour ozone standard, but were in attainment for the 1-hour ozone national ambient air quality standard (the 1-hour ozone standard). The 1-hour ozone standard will be revoked for counties in EAC areas one year after the effective dates of their respective 8-hour ozone designations. See 40 CFR 50.9(b) for additional information on the revocation of the 1-hour ozone standard.

As part of the EAC program, EPA deferred the effective date of the nonattainment designations for EAC areas that were violating the 8-hour ozone standard, but continue to meet the milestones described in the EAC Protocol. Details of this deferral were published in the Federal Register on April 30, 2004 (69 FR 23858). On June 8, 2005, EPA proposed to extend the deferred effective date of the nonattainment designations through December 31, 2006 (70 FR 33409), for the EAC areas that have met their obligations. A subsequent action will continue the deferral until December 31, 2007, when attainment evaluations will begin. Pursuant to the EAC Protocol, the designation process is scheduled to be completed by April 15, 2008. To date, the South Carolina and Georgia EAC Areas have met all the EAC milestones. In April, 2008, it is anticipated that EAC areas with air quality monitoring data showing attainment for the years 2005-2007, that have also met all the compact milestones, will be designated attainment for the 8-hour ozone standard. EPA believes that early planning and implementation of control measures that improve air quality will likely accelerate protection of public health. The EAC program allows participating state and local entities to make decisions that will accelerate meeting the new 8-hour ozone standard using a mix of local, state, and federal measures. All of the measures being approved today as part of the SIP revisions will be mandatory and federally enforceable.

The details of the SIP revisions being approved today are available for review in the RME Docket under ID No. R04-OAR-2005-SC-0001 and R04-OAR-2005-GA-0001. In addition, the measures described below are applied differently to different areas depending on the specific area's designation ( i.e. , unclassifiable/attainment or nonattainment-deferred). Generally, the SIP revisions include emissions inventory, modeling, control strategies, and maintenance for growth elements as required by the EAC Protocol. With regard to control measures, the South Carolina and Georgia SIP revisions include federal, state, and local control measures. The federal control measures for both states include, among others, Tier 2 vehicle standards and low sulfur fuel, and the NO X SIP Call for South Carolina.

The state control measures for South Carolina include amendments to State Regulation 61-62, Air Pollution Control Regulations and Standards, that revise State Regulation 61-62.2—Prohibition of Open Burning and add State Regulation 61-62.5, Air Pollution Control Standards, Standard No. 5.2, Control of Oxides of Nitrogen. Additional information regarding these regulatory changes is available in the May 26, 2005, proposal (70 FR 30396) as well as in the Docket for this rulemaking. These two regulations were published in the South Carolina State Register on June 25, 2004, and are now being approved into the South Carolina SIP.

The local control measures being approved into the South Carolina SIP for the South Carolina EAC Areas include, among others, implementing emissions reduction strategies at several facilities, truck stop electrification, and gas can exchange events. The facilities implementing emissions reduction strategies are the Duke Power Lee Steam Station in Anderson County, the Transcontinental Gas Pipeline Corporation in Spartanburg County, and International Paper and SCE&G—Wateree in Richland County. Additional information regarding these and other local measures is available in the May 26, 2005, proposal (70 FR 30396), and the Docket for this rulemaking. Specifically, Appendix 16 of the South Carolina SIP submittal, included in the Docket, contains detailed information on the local measures being approved as part of this final action.

In addition to control measures, the South Carolina SIP revisions also include a maintenance for growth plan that meets and exceeds the minimum requirements of the EAC Protocol for such a plan. The EAC Protocol requires that maintenance be demonstrated through 2012. In summary, the South Carolina plan demonstrates attainment until 2017, commits to a mid-point evaluation in 2012, and commits to develop a second 10-year maintenance plan from 2017-2027, among other elements.

The State of Georgia, as part of the Lower Savannah EAC Area, has also adopted measures that positively impact air quality in that area. This area is designated as unclassifiable/attainment, but still elected to participate in the EAC program. Georgia's statewide control measures include an open burning ban during the ozone season and Stage I Vapor Recovery, among others. The Georgia SIP revisions also demonstrate maintenance through 2012, as required by the EAC Protocol.

The States of South Carolina and Georgia both used a process known as photochemical modeling to evaluate attainment and maintenance of the 8-hour ozone standard. The photochemical modeling performed by South Carolina and Georgia used control measures to model attainment and maintenance of the 8-hour ozone. The South Carolina EAC Areas passed the attainment test for 2007, 2012, and 2017. Consistent with South Carolina's modeling, Georgia's modeling for the Lower Savannah EAC Area (modeled by both South Carolina and Georgia) demonstrates that the Area passed the attainment test for 2007, and 2012. This type of modeling is consistent with the EAC Protocol and EPA Draft Modeling Guidance that was provided to the participating EAC Areas. 4 Additional information regarding the modeling performed by South Carolina and Georgia is available in the Docket, RME ID No. R04-OAR-2005-SC-0001 and R04-OAR-2005-GA-0001.

Today, EPA is taking final action, pursuant to sections 110 and 116 of the CAA, 42 U.S.C. 7410 and 7416, to approve revisions to the South Carolina and Georgia SIPs. The SIP revisions being approved today are consistent with the EAC Protocol and related regulations. These revisions demonstrate attainment of the 8-hour ozone standard within the South Carolina and Georgia EAC Areas by 2007, and demonstrate maintenance for five or more years beyond 2007. The revisions being approved today further incorporate regulatory control measures (revisions to state regulations) into the South Carolina SIP.

Additionally, today we are correcting inadvertent errors in the May 26, 2005, proposal to approve the South Carolina and Georgia EAC Area SIP revisions (70 FR 30396). These inadvertent errors included the types of control measures modeled for attainment, the counties included in the Upper Savannah EAC Area, and a typographical error in the table entitled, “County Level Emission Reductions in South Carolina EAC Nonattainment-Deferred Areas.” These errors, described in greater detail below, are now being corrected as part of this final action. The corrections below are made to Section VII., “What Measures are Included in this EAC SIP Submittal,” and are listed below.

EPA Region 4 received two comment letters in response to the May 26, 2005, proposal to approve the South Carolina and Georgia EAC Area SIP revisions. Both comments expressed support for the goal of clean air sooner. The first commenter supported EPA's proposal to approve the South Carolina Appalachian EAC Area SIP revisions. The second commenter raised concerns about EPA's proposal to approve the South Carolina and Georgia EAC Area SIP revisions, although the issues raised by this commenter were not directly relevant to the May 26, 2005, proposal. 5

In the only unsupportive comment received in response to EPA's May 26, 2005, proposal to approve the South Carolina and Georgia EAC Area SIP revisions, the commenter, the New York State Department of Environmental Conservation (NYSDEC), noted its opposition to today's action for two reasons. First, the SIP revisions provide for the deferment of a nonattainment designation until a future date potentially as late as December 31, 2007; second, the revisions relieve the Areas of obligations under Title I, Subpart D of the CAA. These two issues are directly related to EPA's June 8, 2005, proposal to defer the effective date of the nonattainment designations for EAC Areas across the country (70 FR 33409). NYSDEC also raised these same issues in response to EPA's June 8, 2005, deferral proposal. Because the comment relates to deferral issues, and was also submitted on the June 8, 2005, deferral proposal, it will be responded to by EPA in our subsequent rulemaking addressing the deferred effective date for nonattainment designations for EAC areas. When published, this final deferral rule will be available on the EAC Web site http://www.epa.gov/air/eac/ . Notably, contrary to the comment, today's action by EPA to approve SIP revisions for the States of South Carolina and Georgia neither provides for deferral of the nonattainment designation nor relieves an area from obligations under Title I, Subpart D of the CAA.

EPA is approving the revisions to the South Carolina and Georgia SIPs submitted on December 29, 2004, and December 31, 2004, respectively, pursuant to the EAC Protocol and resulting in emission reductions needed to attain and maintain the 8-hour ozone standard in the Appalachian, Catawba, Pee Dee, Waccamaw, Santee Lynches, Berkeley-Charleston-Dorchester, Low Country, Lower Savannah, Central Midlands, and Upper Savannah EAC Areas.

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, May 22, 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. 601 et 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). This action 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. 3501 et seq. ).

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

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 October 25, 2005. 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 CAA section 307(b)(2).)

On May 26, 2005, EPA proposed approval of SIP revisions for the Tennessee and Georgia EAC Areas demonstrating attainment and maintenance of the 8-hour ozone standard, 0.08 parts per million (ppm), in these areas by December 31, 2007. 1 Additional information regarding the SIP revisions being approved today is available in the proposed rule (70 FR 30389, May 26, 2005) and the Docket for this action. The submitted revisions are consistent with the requirements established in the EAC Protocol and related regulations. For further information on the designation process and the Tennessee and Georgia EAC designations, see 69 FR 23856, April 30, 2004. 2 EPA received one public comment during the thirty day comment period for the SIP revisions being approved today. This comment is discussed below, in Part III., “Response to Comments.”

In addition, today's action corrects an inadvertent error in the May 26, 2005, proposal to approve the Tennessee and Georgia EAC SIP revisions. In the proposal document, EPA indicated in Table 5 (see 70 FR 30389, 30388) that two local measures were not modeled for the Chattanooga EAC Area. In fact, the two measures were modeled and included as part of the attainment demonstration, and the measures should not appear in Table 5. See Section II., “Today's Action” for more details regarding this inadvertent error.

An EAC is an agreement between a state, local governments, and EPA to implement measures not necessarily required by the Clean Air Act (CAA) in order to achieve cleaner air as soon as possible. 3 Communities close to or exceeding the 8-hour ozone standard, which have elected to enter into an EAC, have started reducing air pollution at least two years sooner than required by the CAA. In many cases, these reductions will be achieved by local air pollution control measures not otherwise mandated under the CAA. In accordance with the EAC Protocol, Tennessee submitted EACs for the Chattanooga area, Nashville area, and Tri-Cities area, on December 30, 2002. The State of Georgia submitted materials supporting the Chattanooga EAC on December 24, 2002. The compacts were signed by State air quality officials, representatives of local communities, and the Regional Administrator of EPA Region 4. The EAC program was designed for areas that approached or monitored violations of the 8-hour ozone standard, but that were in attainment for the 1-hour ozone national ambient air quality standard (1-hour ozone standard). The 1-hour ozone standard will be revoked for counties in the EAC areas one year after the effective dates of the counties' respective 8-hour ozone designations. See 40 CFR 50.9(b) for additional information on the 1-hour ozone revocation.

As part of the EAC process, EPA deferred the effective date of the nonattainment designations for EAC areas that were violating the 8-hour ozone standard, but continue to meet the milestones described in the EAC Protocol. Details of this deferral were published in the Federal Register on April 30, 2004 (69 FR 23858). On June 8, 2005, EPA proposed to extend the deferred effective date of the nonattainment designations through December 31, 2006 (70 FR 33409), for the EAC areas that have met their obligations. A subsequent EPA action will continue the deferral until December 31, 2007, when attainment evaluations will begin. Pursuant to the EAC Protocol, the designation process is scheduled to be completed by April 15, 2008. To date, the Tennessee and Georgia EAC Areas have met all the EAC milestones. In April, 2008, it is anticipated that EAC areas with air quality monitoring data showing attainment for the years 2005-2007, that have also met all the compact milestones, will be designated attainment for the 8-hour ozone standard. EPA believes that early planning and implementation of control measures that improve air quality will likely accelerate protection of public health. The EAC program allows participating state and local entities to make decisions that will accelerate meeting the new 8-hour ozone standard using a mix of local, state, and federal measures. All of the measures being adopted today as part of the SIP revisions will be mandatory and federally enforceable.

The details of the SIP revisions being approved today are available for review under RME ID No. R04-OAR-2005-TN-0001 and R04-OAR-2004-GA-0004. In addition, the measures discussed in this paragraph are applied differently to different areas depending on the specific area's designation ( i.e. , unclassifiable/attainment or nonattainment deferred). Generally, however, the SIP revisions include emissions inventory, modeling, control strategies, and maintenance for growth elements as required by the EAC Protocol. With regard to control measures, the Tennessee and Georgia SIP revisions include Federal, State, and local control measures. The federal control measures include, among others, Tier 2 vehicle standards and low sulfur fuel. The State of Tennessee control measures include, among others, expansion of the Motor Vehicle Inspection and Maintenance (I/M) program, expansion of the Stage I Vapor Recovery program, and a Motor Vehicle Tampering provision. The State of Georgia submittal included two control measures that will be implemented in the Chattanooga EAC Area: an open burning ban during the ozone season and Stage I Vapor Recovery. These statewide measures were enacted through state legislation, but implementation will occur at a local level, through both county and state involvement in implementation and enforcement. The local control measures in both states include, among others, open burning bans and transportation emissions control measures. All of these measures, including the local measures, will be enforceable once they are incorporated into the SIP.

In addition to control measures, the Tennessee and Georgia SIP revisions also include maintenance for growth plans that meet and exceed the requirements of the EAC Protocol for such plans. The EAC Protocol requires that maintenance of the 8-hour ozone standard be demonstrated through 2012. In the SIP revisions being approved today, the States of Tennessee and Georgia modeled maintenance of the 8-hour ozone standard through at least 2012, and until 2017, in some Tennessee EAC Areas.

Both Tennessee and Georgia used a process known as photochemical modeling to evaluate attainment and maintenance of the 8-hour ozone standard. Photochemical modeling performed by Tennessee used the above described control measures, and others, to model attainment and maintenance of the 8-hour ozone standard through 2017, passing the attainment test for 2007, 2012, and 2017. Georgia's SIP revisions model attainment and maintenance through 2012, passing the attainment test for 2007, and 2012. The use of photochemical modeling is consistent with the EAC Protocol and the EPA Draft modeling guidance that was provided to EAC areas. 4 The Chattanooga EAC is a multi-state EAC Area, including counties in Tennessee and Georgia; therefore, an attainment demonstration was developed for the Chattanooga EAC Area by the State of Georgia. According to Georgia's modeling for the Chattanooga EAC Area, maintenance of the 8-hour ozone standard is demonstrated through 2012. For further information on the photochemical modeling performed by Tennessee, please see RME ID No. R04-OAR-2005-TN-0001. For further information on photochemical modeling performed by Georgia, please see RME ID No. R04-OAR-2004-GA-0004.

Today we are taking final action to approve revisions to the Tennessee and Georgia SIPs under sections 110 and 116 of the Act, 42 U.S.C. 7410 and 7416. The SIP revisions are consistent with the EAC Protocol and related regulations. Pursuant to the EAC Protocol, the SIP revisions demonstrate attainment of the 8-hour ozone standard within the Tennessee and Georgia EAC Areas by 2007, maintenance for five or more years beyond 2007, and incorporate the control measures developed by these EAC Areas into the Tennessee and Georgia SIPs.

Additionally, today we are correcting inadvertent errors in Table 5 of the proposed rule published on May 26, 2005 (70 FR 30382). The specific corrections apply to Section VII.—“What Measures are Included in this EAC SIP Submittal.” Table 5—“Additional EAC Local Reductions Not Modeled,” on page 30387 of the proposal, shows that neither the seasonal open burning ban, nor the Spare the Air Program, was modeled for the Chattanooga EAC Area. These two local control measures were modeled and included in the Chattanooga EAC Area attainment demonstration. Therefore, these measures should not be included in Table 5.

EPA Region 4 received one comment in response to the May 26, 2005, proposal to approve the Tennessee and Georgia SIP revisions. The commenter commended Tennessee and Georgia for taking steps to improve air quality, but noted opposition to today's action for two reasons. First, the SIP revisions provide for the deferment of a nonattainment designation until a future date potentially as late as December 31, 2007; second, the revisions relieve the areas of obligations under Title I, Subpart D of the CAA. These two issues are directly related to the proposed deferral of the nonattainment designation for the Tennessee and Georgia EAC Areas, published on June 8, 2005, (70 FR 33409), and not to today's approval of the SIP revisions. In addition, the same issues were raised by this commenter in response to EPA's June 8, 2005, deferral proposal. Because the comment relates to deferral issues, it will be responded to by EPA in our subsequent rulemaking addressing the deferred effective date for nonattainment designations for EAC areas. When published, this final deferral rule will be available on the EAC Web site http://www.epa.gov/air/eac/ . Notably, contrary to the comment, today's action neither provides for deferral of the nonattainment designation nor relieves an area from obligations under Title I, Subpart D of the CAA.

Today EPA is approving revisions to the Tennessee SIP, submitted on December 29, 2004, and the Georgia SIP, submitted December 31, 2004. These revisions demonstrate attainment of the 8-hour ozone standard within the Tennessee and Georgia EAC Areas by 2007, maintenance of the standard for five or more years beyond 2007, and incorporate the control measures developed by the EAC Areas into the Tennessee and Georgia SIPs.

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, May 22, 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. 601 et 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). This action 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. 3501 et seq. ).

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

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 October 25, 2005. 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 CAA section 307(b)(2).)

In this document “we,” “us,” and “our” refer to EPA.

On May 9, 2005 (70 FR 24348) we proposed limited approval of revisions to the Texas SIP pertaining to excess emissions during SSM activities. See 30 TAC, General Air Quality Rule 101, subchapter F, sections 101.221, 101.222, and 101.223. The currently approved Texas SIP provides that these three provisions of the State rules, that address excess emissions resulting from SSM related activities, will expire by their own terms on June 30, 2005. In granting a limited approval of those provisions of the State rule EPA interpreted those provisions to mean the subsections would expire from the approved SIP on that date (June 30, 2005).

Our May 9, 2005 (70 FR 24348) proposal addressed changes to each of these three provisions which would extend the expiration date to as late as June 30, 2006. Specifically, the State revised each of the three subsections to provide:

See 30 TAC, General Air Quality Rule 101, Subchapter F, subsections 101.221(g), 101.222(h), and 101.223(e).

Today, we are taking final action on the May 9, 2005 (70 FR 24348) proposal. Because we proposed to approve these revisions prior to the time the State completed its state rulemaking process, we compared the final version of the adopted State submission with the submission on which the proposed rulemaking was based. The comparison reveals no changes in the State's final submission. The change we are approving today will, in effect, extend the expiration date of the affected sections from June 30, 2005 to January 15, 2006, unless the State submits a replacement rule to EPA, which would have the effect of extending the expiration date in the SIP to June 30, 2006.

The EPA believes it is important to reiterate our interpretation of the phrase in the State's rule, “submits a revised version of this section.” If we receive a SIP submission of a state-adopted revised version of the specified sections prior to January 15, 2006, we will review the submission for completeness in accordance with our completeness regulations. See 40 CFR Part 51, Appendix V. If the State fails to submit an adopted rule by January 15, 2006, or submits a SIP that we determine is incomplete, the existing regulations will expire from the SIP effective January 15, 2006. If we find the submission complete, then the rule will expire from the SIP on June 30, 2006, or at an earlier date if so provided by a replacement rule that we approve into the Texas SIP prior to June 30, 2006.

The EPA intends to work with the State during the State's rulemaking process to identify any issues that would prevent our full approval of the replacement rule. Although we cannot prejudge our ultimate decision on a future SIP submission prior to our review of such revisions and our consideration of any public comments in response to our proposed action on such submission, we will attempt to identify any issues that would prevent our full approval of the replacement rule during the State's rulemaking process and any preliminary discussions we may have with the State.

We are granting limited, rather than full, approval of this SIP submittal. We are granting limited approval of this rule because we granted limited approval of the regulations which are modified by this revision. Although this action will extend the expiration date of sections 101.221, 101.222, and 101.223, the basis for our limited approval of the State's excess emissions rules remains unchanged as explained in our March 30, 2005 (70 FR 16129) rulemaking action.

The EPA's interpretation of the Act on excess emissions occurring during SSM is set forth in the following documents: a memorandum dated September 28, 1982, from Kathleen M. Bennett, Assistant Administrator for Air, Noise, and Radiation, entitled “Policy on Excess Emissions During Startup, Shutdown, Maintenance, and Malfunctions;” EPA's clarification to the above policy memorandum dated February 15, 1983, from Kathleen M. Bennett, Assistant Administrator for Air, Noise, and Radiation; EPA's policy memorandum reaffirming and supplementing the above policy, dated September 20, 1999, from Steven A. Herman, Assistant Administrator for Enforcement and Compliance Assurance and Robert Perciasepe, Assistant Administrator for Air and Radiation, entitled “State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown” (September 1999 Policy); EPA's final rule for Utah's sulfur dioxide control strategy (Kennecott Copper), 42 FR 21472 (April 27, 1977), and EPA's final rule for Idaho's sulfur dioxide control strategy, 42 FR 58171 (November 8, 1977); and the latest clarification of EPA's policy issued on December 5, 2001. See the policy or clarification of policy at: http://www.epa.gov/ttn/oarpg/t1pgm.html.

To find the latest Federally approved Texas SIP concerning excess emissions see 70 FR 16129 (March 30, 2005).

We received written comments on our May 9, 2005 (70 FR 24348) proposed limited approval of the Texas SIP revision. The comments were submitted by the Environmental Integrity Project, Galveston-Houston Association for Smog Prevention, Sierra Club Lone Star Chapter, Blue Skies Alliance, Downwinders at Risk, Community In-Power and Development Association, Public Citizen's Texas Office, and Texas Public Interest Research Group (the Commenters) during the public comment period.

Our responses to the written comments concerning the proposed May 9, 2005 (70 FR 24348), Texas SIP revision are as follows:

Comment #1: The Commenters agree that we should grant a limited approval of the extended expiration date in subsections 101.221(g) and 101.223(e), but claim that for the following reasons (see Comments #2, 3, and 4) we should disapprove the extension of the expiration date in subsection 101.222(h).

Response to Comment #1: We appreciate the Commenters' support of limited approval of subsections 101.221(g) and 101.223(e). See our responses to Comments #2, 3, and 4 of this document concerning subsection 101.222(h).

Comment #2: The Commenters state that an affirmative defense cannot apply to emissions exceedances of the Federally promulgated performance-based or technology driven standards such as New Source Performance Standards (NSPS), and National Emissions Standards for Hazardous Air Pollutants (NESHAP). While EPA's interpretation of Texas' rules is clear from EPA's statements in the final limited approval (70 FR at 16132), EPA should not approve a revision to the Texas rules unless Texas clarifies on the face of the rule that any affirmative defense does not apply to Federally promulgated performance-based or technology driven standards or other Federal requirements.

Response to Comment #2: We agree that in order to receive a full approval of the rule, Texas needs to revise the rule to make clear that the affirmative defense is not available for violations of Federally promulgated performance-based or technology driven standards such as NSPS and NESHAP. In this action, we are only considering a brief extension of the existing rule for which we issued a limited approval on March 30, 2005. Because the extension of the expiration date is brief, we do not believe the underlying flaws in the rule mandate a disapproval of the extension and that it is appropriate to grant a limited approval of the revised expiration date. However, we note that EPA will not approve any further extensions of the expiration date in the absence of the State correcting the defects in the current rule. See section 1 of our May 9, 2005 (70 FR 24349).

Comment #3: The Commenters state that subsection 101.222(c) exempts excess emissions during scheduled maintenance, startup, and shutdown from permitting requirements, if certain criteria are met, and conclude that such exemptions could jeopardize SIP's ability to attain and maintain compliance with the SIP. In addition, the commenters note that EPA's SSM guidance makes clear that scheduled maintenance, startup and shutdown activities should be accounted for in the plan and design, and an affirmative defense should not be available. The Commenters state that because subsections 101.222(c) and (e) violate the Act and EPA's guidance, EPA cannot approve an extension of the expiration date for these provisions.

Response to Comment #3: We agree with many of the points raised by the Commenters regarding the underlying flaws with subsections 101.222(c) and (e), and those flaws were the basis for our limited, rather than full approval of the State's excess emissions rules. See section 3 of our March 30, 2005 (70 FR 16130-16131).

However, we do not think the brief extension of the expiration date at issue here will have a significant effect and that it is appropriate to grant a limited approval of the revised expiration provision. As noted above, however, we will not grant any further extensions of the expiration date in the absence of a submitted SIP revision correcting the defects in the rule. See section 1 of our May 9, 2005 (70 FR 24349).

Comment #4: The Commenters state that because subsections 101.222(b) and (d) limit the ability of citizen and EPA enforcement, EPA cannot approve the extension of the expiration date for these provisions under section 101.222(h).

Response to Comment #4: In part, we based our rationale for a limited, rather than a full, approval of Texas SSM rule on concerns similar to those expressed by the Commenters. See our explanation at 70 FR 16130. As provided above, however, we do not believe these flaws with the rule for which we granted a limited approval mandate that we disapprove the brief extension of the expiration date.

This concludes our responses to the written comments we received during public comment period concerning May 9, 2005 (70 FR 24348), Texas proposed SIP revision.

These rule revisions affect all sources of air emissions operating within the State of Texas that are subject to emission reduction requirements under the State's SIP approved regulations.

Today, we are finalizing limited approval of the deletion of existing SIP subsections 101.221(g), 101.222(h), and 101.223(e) and the addition of revised subsections 101.221(g), 101.222(h), and 101.223(e) into the Texas SIP. We published the proposal for this limited approval on May 9, 2005 (70 FR 24348).

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, May 22, 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. 601 et 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). This action 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. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. section 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. section 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 October 25, 2005. 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).)

Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.

We are approving the DFW VMEP into the Texas SIP. We are taking this action because the State submitted a SIP revision that relies on the VMEP to achieve the NAAQS in the DFW ozone nonattainment area.

Section 172 of the Act provides the general requirements for nonattainment plans. Section 172(c)(6) and section 110 require SIPs to include enforceable emission limitations, and such other control measures, means or techniques as well as schedules and timetables for compliance, as may be necessary to provide for attainment by the applicable attainment date. Today's action involves approval of one of a collection of controls adopted by the State to achieve the ozone standard in the DFW nonattainment area as required under section 172. EPA approval of this SIP revision is governed by section 110 of the Act.

In the Federal Register published on January 18, 2001 (66 FR 4756) we proposed to approve a Voluntary Mobile Emissions Reduction Program (VMEP) in nine counties (including the DFW 4-county area) as local initiatives. The counties are Collin, Dallas, Denton, and Tarrant along with the surrounding counties of Ellis, Johnson, Kaufman, Parker, and Rockwall.

Voluntary mobile source strategies that attempt to complement existing regulatory programs through voluntary, non-regulatory changes in local transportation activities or changes in in-use vehicle and engine composition constitute the VMEP. EPA concludes that the Clean Air Act allows SIP credit for new approaches to reducing mobile source emissions. This flexible approach is consistent with section 110. Up to 3% of the total future year emissions reductions required to attain the appropriate NAAQS may be claimed under the VMEP policy. 1

Specifically, the guidance suggests key points be considered for approval of credits. The credits should be quantifiable, surplus, enforceable, permanent, and adequately supported. The State must timely assess and backfill any shortfall pursuant to enforceable commitments in the SIP in the event that the projected emission reductions are not achieved. In addition, VMEPs must be consistent with attainment of the standard and with the Rate of Progress requirements and not interfere with other Clean Air Act requirements.

The State submitted program descriptions that projected emission reductions attributable to each specific voluntary program. These program descriptions were included in the DFW 1-hour ozone SIP revision submitted April 25, 2000.

The following Table lists the programs and projected credits. Programs submitted with no credit assigned are also listed.

The State commits to evaluating each program to validate estimated credits, to evaluating and reporting on the program implementation and results, and to timely remedy any credit shortfall. The State also commits to additional Transportation Control Measures (TCMs) that can be substituted for any shortfall in credit from the estimated credits for VMEP. These include Signal Improvements and Freeway Corridor Management.

EPA's analysis of all the VMEP measures shows that each creditable measure could be quantified. The reductions are surplus by not being substitutes for mandatory, required emission reductions. The SIP with voluntary measures is enforceable because the state has committed to fill any shortfall in credit, thus any enforcement will be against the State. The reductions will continue at least for as long as the time period in which they are used by a SIP demonstration, so they are considered permanent. Each measure is adequately supported by personnel and program resources for implementation. The State's goal is 5.0 tons per day of NO X benefit from the VMEP program.

Comments were submitted by the Natural Resources Defense Council (NRDC).

Comment: The NRDC supports the objectives of the voluntary initiatives identified in the proposal. They hope that greater employment of these measures will promote greater public awareness of the area's severe air pollution problems and that these measures will bring about emissions reductions that will lead to healthy air.

Response: We appreciate the positive comments about the voluntary initiatives in the VMEP.

Comment: EPA's VMEP guidance document is not consistent with the Clean Air Act (CAA).

Response: In the final decision on October 28, 2003, by the United States Court of Appeals, Fifth Circuit, the Court said EPA's VMEP policy is a reasonable interpretation of the statute. [ See BCCA Appeal Group v. EPA , 355 F.3 817 (5th Cir. 2003)]. EPA determined and the Court agreed, “* * * that Texas had made the required commitments to monitor, assess, report, and remedy any credit shortfall from the VMEP measures in accordance with EPA guidance and that these commitments satisfied the enforceability requirements of the CAA.” Id , at 847. Therefore, the VMEP guidance, which is part of the VMEP policy is consistent with the CAA.

Comment: EPA's proposed approval of VMEP Measures for SIP credit is unlawful. The identified voluntary measures, or any voluntary measures do not provide the certainty, enforceability, quantifiability, replicability, permanency, and accountability required for SIP attainment demonstrations.

Response: EPA disagrees with the comment, and continues to believe that the voluntary measures proposed by Texas for inclusion in the SIP are approvable under the Act. EPA acknowledges that by themselves the measures would not be approvable, because as noted by the commenter they are not enforceable against the entities producing the emissions reductions and thus do not meet the enforceability requirement of section 110(a)(2)(A). However, EPA did not propose to approve the measures by themselves. EPA proposed to approve them only in conjunction with an enforceable commitment by the state of Texas to monitor implementation of the voluntary measures, determine whether the anticipated reductions from the measures were in fact achieved, and if not to either alter the program such that the requisite reductions will be achieved, adopt substitute measures, or demonstrate that the attainment and maintenance goals of the ozone SIP can still be met without the reductions from these measures. Thus, EPA did not propose to approve voluntary measures as satisfying the enforceability requirements of section 110. Rather, EPA proposed to approve the voluntary programs into the SIP as part of the overall attainment plan, and proposed to approve the state's enforceable commitment to monitor, assess, and rectify any shortfall as meeting the enforceability requirements of the Act.

EPA continues to believe that this approach is a proper means of encouraging implementation of innovative mobile source control measures while providing an enforceable SIP backstop measure. Ideally, the voluntary measures will produce the estimated emissions reductions without need for any state backfill or Federal or citizen enforcement. However, should any shortfall result, Texas will be bound by the enforceable SIP commitment to rectify the problem and supply the necessary emissions reductions. Both EPA and private citizens retain all of their rights under sections 113 and 304 to bring appropriate enforcement pressure to bear against the state should Texas fail to monitor, assess or fill any shortfall in emissions reductions resulting from implementation of the voluntary measures in the SIP. Contrary to the commenter's allegations, the emissions reductions associated with the voluntary measures in the Dallas SIP are required to be achieved; it is however the state and not the individuals implementing the voluntary measures who must ultimately produce them.

Comment: The commenter raises numerous arguments concerning the unenforceability of the voluntary measures, which will be addressed below. However, the commenter makes no mention of the enforceable State commitment other than to refer to it as insufficient. This statement without further explanation does not give EPA any guidance on the alleged inadequacy of the commitment nor how the commenter would have EPA improve upon it.

Response: EPA continues to maintain that the commitment is approvable as meeting the enforceability requirements of the Act. In the past, EPA has often approved enforceable state commitments to take future actions under the SIP, and these actions have been enforced by courts against states that have failed to comply with those commitments. See, Trustees for Alaska v. Fink , 17 F.3d 1209 (9th Cir. 1994); Coalition Against Columbus Center v. City of New York , 967 F.2d 764 (2d Cir. 1992); Citizens for a Better Environment v. Deukmejian , 731 F.Supp. 1448, reconsideration granted in part, 746 F.Supp. 976 (N.D. Cal. 1990); American Lung Ass'n of New Jersey v. Keane , 871 F.2d 319 (3d Cir. 1989); NRDC v. New York State Department of Environmental Conservation , 668 F.Supp. 848 (S.D.N.Y. 1987); Council of Commuter Organizations v. Gorsuch , 683 F.2d 648 (2d Cir. 1982) and Friends of the Earth v. EPA , 499 F.2d.-1118 (2d Cir. 1974) . EPA believes that the Texas commitments associated with the voluntary measures portion of the SIP are similarly enforceable and thus approvable.

Comment: The commenter alleges that the Act requires all control measures to be enforceable against individual polluters and not just against states.

Response: Many mobile source control measures are enforceable only against the state or local transit operator, and not the individual entities actually producing the emissions reductions, e.g. , state obligations to establish vehicle inspection and maintenance programs or to purchase buses or expand transit systems. The Clean Air Act does not require Federal enforcement capability against individual vehicle owners or transit users prior to approval of such programs into the SIP. 2

Comment: The commenter alleges that the public cannot adequately monitor implementation of the voluntary measures nor determine whether the emissions reductions are achieved.

Response: Texas is required by its enforceable commitment to do just that, and will make such assessments available to the public in the normal course of administrative practice. The VMEP measures adopted by the state covering the Dallas-Fort Worth nonattainment area are available to the public on the agency's Web site. Citizens may check on the measures enacted by the TCEQ at the following link: http://www.tnrcc.state.tx.us/oprd/sips/sipdfw.html.

Paper copies are also available upon request by contacting Ms. Kelly Keel of the Air Quality Planning and Implementation Division at the TCEQ's Chief Engineer's Office. Ms Keel may be reached at 512-239-3607 or kkeel@tceq.state.tx.us.

Because VMEP measures are local initiatives, citizens may check on the implemenation of each measure by contacting the region's transportation planners, the North Central Texas Council of Governments (NCTCOG). VMEP measures are proposed and implemented by local sponsors.

Comment: The commenter also claims that the state itself has raised concerns about the emissions reductions that will be achieved from these measures.

Response: Such concerns may be valid, but notwithstanding Texas has made a commitment to fill any shortfall in emissions, which both EPA and citizens can enforce under the Act. The State relies on reports from the NCTCOG regarding implementation of each VMEP measure. The TCEQ has received no reports from the NCTCOG regarding problems with implementing the VMEP measures enacted in the SIP. Therefore, the State does not believe there is a gap that needs to be backfilled with other emission reduction measures.

Comment: The commenter makes various arguments about the unacceptability of the voluntary measures program stemming from the stationary source permitting program under Title V of the Act.

Response: Title V is totally irrelevant to these mobile source programs. The voluntary measures program Texas has included in the Dallas SIP applies only to mobile sources that are not subject to regulation under the Title V stationary source permitting program.

Comment: The commenter also argues that EPA can not alter its past interpretations without completing notice-and-comment rulemaking.

Response: EPA believes that this action is consistent with its past interpretations that enforceable state commitments to take future action are approvable SIP measures. For example, see EPA actions approving California plans at 62 FR 1150 ( January 8, 1997) and 65 FR 18903 (April 10, 2000), and the Houston Attainment Demonstration at 66 FR 57160 (November 14, 2001). In addition, this action is consistent with the guidance cited in section IV of this document that EPA issued in 1997 indicating its belief that voluntary programs could be approved in conjunction with enforceable state commitments to fill any resultant shortfall. The individual SIP approval actions implementing the VMEP guidance constitute the notice-and-comment rulemaking required to effectuate action under the guidance. Thus, this SIP rulemaking satisfies both CAA and APA rulemaking requirements with respect to final interpretations of the Act consistent with the guidance.

Comment: The commenter alleges that EPA may not alter interpretations of the Administrator through SIP rulemaking signed by the Regional Administrator.

Response: The Administrator has properly delegated the authority for SIP rulemakings to the Regional Administrators under Delegation 7-10 dated May 6, 1997, and section 301(a)(1) of the Act. Thus, the Regional Administrators are authorized to act for the Administrator with respect to all matters pertaining to SIP approvals, including interpretations of the Act relevant to a given SIP approval. Additionally, as we stated in the previous response, this action is consistent with EPA's past interpretations that enforceable state commitments to take future action are approvable SIP measures. Compliance with voluntary programs is ensured through the enforceable state commitments to fill any resultant shortfall.

Comment: The commenter questions the 3% limit on voluntary measures, arguing that this limit itself implicitly acknowledges that such measures are not approvable.

Response: EPA did not impose the 3% limit because it believed the measures to be suspect, but rather, as noted in the VMEP guidance, based this decision on the innovative nature of the measures and the agency's lack of experience both with implementation and calculating appropriate credit for such measures. Therefore, EPA created the 3% limit as a policy matter, indicating in the guidance that it did not think it would be appropriate to approve a greater percentage while the agency begins to implement the program. EPA further indicated that it would reassess the limit after several years of experience with the program. Since all VMEP measures would be approved only with enfoceable state commitments to fill any resultant shortfall, EPA felt confident that including voluntary programs up to 3% of required emissions reductions in SIPs would not jeopardize attainment and maintenance goals during initial implementation under the policy. Further, EPA did not indicate that 3% of required emissions reductions could be considered de minimis , as the commenter implies. EPA agrees with the commenter that it should not conclude in advance that any given percentage of emissions reduction could be considered per se de minimis for all areas and types of SIPs. Any conclusion about the de minimis nature of required emission reductions should be made in light of the specific circumstances of the areas and CAA requirements at issue. Therefore, all of the commenter's arguments relating to the availability of a de minimis exemption and the need for notice-and-comment rulemaking to effectuate it are not relevant to EPA's approval of the voluntary measures in the Dallas SIP.

Comment: NRDC claims the record is insufficient to support our credit claims.

Response: EPA reviewed the documentation for each measure of the VMEP. We found that for each measure the documentation was acceptable to demonstrate that the criteria for approval were met. For each measure the State was able to show that the measure plus the State commitment was quantifiable, surplus, enforceable, permanent, and adequately supported. In addition this SIP contained a firm commitment to cover any shortfall by supplementing additional TCMs that are in addition to those already credited to the SIP.

Comment: In its conclusion the commenter refers in passing to delays that may result from identifying and rectifying emissions shortfalls.

Response: EPA acknowledges that reductions will be somewhat delayed where states must first monitor and assess implementation and subsequently implement corrections. For this reason EPA indicated in the VMEP guidance that states should fill any shortfalls in a timely fashion. EPA issued a companion voluntary measures policy for stationary sources. 3 In that policy EPA indicated that where voluntary measures were included in attainment or rate of progress SIPs, any shortfalls would have to be filled prior to the relevant attainment or progress milestone date. EPA believes this is an appropriate interpretation of the requirement to fill shortfalls in a timely fashion under the VMEP policy. Similarly, the same process is described in the recently issued umbrella policy for use of voluntary measures in SIPs. 4

The DFW VMEP meets the criteria for credit in the SIP. The State has shown that the credits are quantifiable, surplus, enforceable, permanent, adequately supported, and consistent with the SIP and the Act. We are granting final approval of the VMEP into the DFW SIP.

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, May 22, 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. 601 et 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). This action 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. 3501 et seq. ).

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

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 October 25, 2005. 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).)

On July 1, 2005, we proposed to approve a State Implementation Plan (SIP) maintenance plan revision and redesignation request, dated March 29, 2005, from the Director of the Washington State Department of Ecology (Ecology) for the Wallula PM-10 nonattainment area. 70 FR 38073. We proposed our approval based on the State's demonstration that the control measures being implemented in the Wallula area would result in maintenance of the PM 10 National Ambient Air Quality Standards and that all other Clean Air Act requirements for redesignation to attainment have been met. See the proposed action for a full description of how the maintenance plan and redesignation request meet Clean Air Act requirements.

EPA provided a 30-day review and comment period on the proposal published in the Federal Register on July 1, 2005 (70 FR 38073). We received no comments on our proposed rulemaking.

We are taking final action to approve the Wallula PM 10 maintenance plan and redesignate the Wallula nonattainment area to attainment for PM 10 .

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, May 22, 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. 601 et 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). This action 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. 3501 et seq. ).

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

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 October 25, 2005. 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).)

We have identified a technical error that appeared in a correcting amendment entitled “Medicare Program; Changes to the Medicare Claims Appeal Procedures: Correcting Amendment to an Interim Final Rule.” (70 FR 37700, June 30, 2005) In this correcting amendment, we are correcting that technical error.

In § 405.1020 of the regulation text, we incorrectly stated the section's title as “Time frames for deciding an appeal for a hearing before an ALJ.” It should have read, “Time and place for a hearing before an ALJ.” We correct this technical error in section B of this correcting amendment.

We ordinarily publish a notice of proposed rulemaking in the Federal Register to provide a period for public comment before the provisions of a rule take effect. However, we can waive this procedure if we find good cause for doing so, and incorporate a statement of this finding and the reasons for it into the rule. A finding that a notice and comment period is impracticable, unnecessary, or contrary to the public interest constitutes good cause for waiving this procedure.

We believe that it is unnecessary to seek public comment on the correction of this editorial error. Further, it is in the public's interest to correct this editorial error because it makes the section more understandable to parties pursuing Medicare appeals under these procedures. Therefore, we find good cause to waive notice and comment procedures.

Section 1902 of the Social Security Act (the Act) sets forth the requirements for State plans for medical assistance. Prior to August 5, 1997, section 1902(a)(10)(E) of the Act specified that the State Medicaid plan must provide for some or all types of Medicare cost-sharing for three eligibility groups of low-income Medicare beneficiaries. These three groups included qualified Medicare beneficiaries (QMBs), specified low-income Medicare beneficiaries (SLMBs), and qualified disabled and working individuals (QDWIs).

A QMB is an individual entitled to Medicare Part A with income at or below the Federal poverty line (FPL) and resources below $4,000 for an individual and $6,000 for a couple. A SLMB is an individual who meets the QMB criteria, except that his or her income is above 100 percent of the FPL and does not exceed 120 percent of the FPL. A QDWI is a disabled individual who is entitled to enroll in Medicare Part A under section 1818A of the Act, whose income does not exceed 200 percent of the FPL for a family of the size involved, whose resources do not exceed twice the amount allowed under the Supplementary Security Income (SSI) program, and who is not otherwise eligible for Medicaid. The definition of Medicare cost-sharing at section 1905(p)(3) of the Act includes payment for premiums for Medicare Part B.

Section 4732 of the Balanced Budget Act of 1997 (BBA), enacted on August 5, 1997, amended section 1902(a)(10)(E) of the Act to require States to provide for Medicaid payment of the Medicare Part B premiums for two additional eligibility groups of low-income Medicare beneficiaries, referred to as qualifying individuals (QIs). Specifically, a new section 1902(a)(10)(E)(iv)(I) of the Act was added, under which States must pay the full amount of the Medicare Part B premium for qualifying individuals who would be QMBs but for the fact that their income level is at least 120 percent of the FPL but less than 135 percent of the FPL for a family of the size involved. These individuals cannot otherwise be eligible for medical assistance under the approved State Medicaid plan. The second group of QIs added under section 1902(a)(10)(E)(iv)(II) of the Act includes Medicare beneficiaries who would be QMBs except that their income is at least 135 percent but less than 175 percent of the FPL for a family of the size involved, who are not otherwise eligible for Medicaid under the approved State plan. These QIs were eligible for only a portion of Medicare cost sharing consisting only of a percentage of the increase in the Medicare Part B premium attributable to the shift of Medicare home health coverage from Part A to Part B (as provided in section 4611 of the BBA).

Coverage of the second group of QIs ended on December 31, 2002 and the 2003 Welfare Reform Bill (Pub. L. 108-89) eliminated reference to the QI-2 benefit. In each of the years 2002 and 2003, Continuing Resolutions extended the coverage of the first group of QIs (whose income is at least 120 percent but less than 135 percent of the Federal poverty line) through the next fiscal year, but maintained the annual funding at the FY 2002 level. In 2004, “A Bill to Amend Title XIX of the Social Security Act to Extend Medicare Cost-Sharing for the Medicare Part B Premium for Qualifying Individuals” (Pub. L. 108-448) continued coverage of this group through September 30, 2005, again with no change in funding.

The BBA also added a new section 1933 to the Act to provide for Medicaid payment of Medicare Part B premiums for QIs. (The previous section 1933 was re-designated as section 1934.) Section 1933(a) specifies that a State plan must provide, through a State plan amendment, for medical assistance to pay for the cost of Medicare cost-sharing on behalf of QIs who are selected to receive assistance.

Section 1933(b) of the Act sets forth the rules that States must follow in selecting QIs and providing payment for Medicare Part B premiums. Specifically, the State must permit all qualifying individuals to apply for assistance and must select individuals on a first-come, first-served basis (that is, the State must select QIs in the order in which they apply). Under section 1933(b)(2)(B) of the Act, in selecting persons who will receive assistance in years after 1998, States must give preference to those individuals who received assistance as QIs, QMBs, SLMBs, or QDWIs in the last month of the previous year and who continue to be (or become) QIs. Under section 1933(b)(4) of the Act, persons selected to receive assistance in a calendar year are entitled to receive assistance for the remainder of the year, but not beyond, as long as they continue to qualify. The fact that an individual is selected to receive assistance at any time during the year does not entitle the individual to continued assistance for any succeeding year. Because the State's allotment is limited by law, section 1933(b)(3) of the Act provides that the State must limit the number of QIs so that the amount of assistance provided during the year is approximately equal to the allotment for that year.

Section 1933(c) of the Act limits the total amount of Federal funds available for payment of Part B premiums for QIs each fiscal year and specifies the formula that is to be used to determine an allotment for each State from this total amount. For States that executed a State plan amendment in accordance with section 1933(a) of the Act, a total of $1.5 billion was allocated over 5 years as follows: $200 million in FY 1998; $250 million in FY 1999; $300 million in FY 2000; $350 million in FY 2001; and $400 million in FY 2002. In 1999, the Department published a notice (64 FR 14931, March 29, 1999) to advise States of the methodology used to calculate allotments and each State's specific allotment for that year. Following that notice, there was no change in methodology and States have been notified annually of their allotments. We did not include the methodology for computing the allocation in our regulations. Although the BBA originally provided coverage of QIs only through FY 2002, through several continuing resolutions, coverage has been continued through the current fiscal year, but without any increase in total allocation over the FY 2002 level.

The Federal medical assistance percentage for Medicaid payment of Medicare Part B premiums for qualifying individuals is 100 percent for expenditures up to the amount of the State's allotment. No Federal funds are available for expenditures in excess of the State allotment amount. The Federal matching rate for administrative expenses associated with the payment of Medicare Part B premiums for QIs remains at the 50 percent matching level. Federal financial participation in the administrative expenses is not counted against the State's allotment.

The amount available for each fiscal year is to be allocated among States according to the formula set forth in section 1933(c)(2) of the Act. The formula provides for an amount to each State that is to be based on each State's share of the Secretary's estimate of the ratio of: (a) An amount equal to the total number of individuals in the State who meet all but the income requirements for QMBs, whose incomes are at least 120 percent but less than 135 percent of the Federal poverty line, and who are not otherwise eligible for Medicaid, to (b) the sum of all those individuals for all eligible States.

In FY 2005, some States have exhausted their current allotments before the end of the fiscal year, which has caused them to deny benefits to eligible persons under section 1933(b)(3) of the Act, while other States project a surplus in their allotments. We asked those States which have exhausted or expect to exhaust their FY 2005 allotments before the end of the fiscal year to project the amount of funds that would be required to grant eligibility to all eligible persons in their State, that is, their need. We also asked those States which do not expect to use their full allotments in FY 2005 to project the difference between the amount they expect to spend and their allotment, that is, their surplus. All States reported these figures, and it was evident that the total surplus exceeds the total need. In spite of there being adequate overall funding for the QI benefit, some eligible individuals are being denied benefits due to the allocation methodology used to determine the FY 2005 allotments. We believe that it is the clear intent of the statute to provide benefits to eligible persons up to the full amount of funds made available for the program. We attribute this to imprecision in the data which we used to provide States with their initial allocations under section 1933 of the Act. This interim final rule would attempt to compensate for this imprecision and enable States to enroll those QIs whom they would have been able to enroll had the data been more precise.

This interim final rule amends 42 CFR 433.10(c) to specify the formula and the data to be used to determine States' allotments and to revise, under certain circumstances, individual State allotments for a Federal fiscal year for the Medicaid payment of Medicare Part B premiums for qualifying individuals identified under section 1902(a)(10)(E)(iv) of the Act.

The FY 2005 allotments were derived by applying U.S. Census Bureau data to the formula set forth in section 1933(c)(2)of the Act. However, the statute requires that the allocation of the fiscal year allotment be based upon a ratio of the amount of “total number of individuals described in section 1902(a)(10)(E)(iv) in the State” to the sum of these amounts for all States. Because this formula requires an estimate of an unknown number, that is, the number of individuals who could be QIs (rather than the number of individuals who were QIs in a previous period), our use of the Census Bureau data in the formula was a rough proxy to attain the statutory number. Actual expenditure data recently received, however, reveal that the Census Bureau data yielded an inappropriate distribution of the total appropriated fund as evidenced by the fact that several States have projected significant shortfalls in their allotments, while many other States project a significant surplus by the end of the fiscal year 2005. Census Bureau data may not have been accurate for the purpose of projecting States' needs because the data could not take into consideration all variables that contribute to QI eligibility and enrollment, such as resource levels and the application process itself. While section 1933 of the Act requires the Secretary to estimate the allocation of the allotments among the States, it does not preclude a subsequent readjustment of that allocation, when it becomes clear that the data used for that estimate did not effectuate the statutory objective.

This interim final rule permits, in this specific circumstance, a redistribution of surplus funds, as it has been demonstrated that the projections and estimates resulted in an inequitable initial allocation, such that some States were granted an allocation in excess of their total projected need, while the allocation granted to other States proved insufficient to meet their projected QI expenditures.

In this interim final rule, we are codifying the methodology we have been using to approximate the statutory formula for determining State allotments. However, since certain States project a deficit in their allotment before the end of fiscal year 2005, this rule permits fiscal year 2005 funds to be reallocated from the surplus States to the need States. The regulation specifies the methodology for computing the annual allotments, and for reallocating funds in this circumstance. The formula used to reallocate funds is intended to minimize impact on surplus States, to equitably distribute the total needed amount among those surplus States, and to meet the immediate needs for those States projecting deficits. Since the authorization for the QI benefit expires at the end of calendar year 2005 and currently no funds have been appropriated for the QI benefit beyond September 30, 2005, this regulation will sunset at the end of calendar year 2005. Should the Congress authorize an extension of the QI benefit and appropriate additional funds for allocation among the States, we will amend the sunset date in this regulation to take into account any extension.

The resulting allotments are shown by State in the table below. In this table each column contains data defined as follows:

Column A—State. Column A shows the name of each State. Columns B through D shows the calculation of the prior FY 2005 QI Allotments.

Column B—Number of Individuals. Column B contains the estimated number of eligibles for each State, in thousands, as obtained from the Census Bureau.

Column C—State Share of Column B. Column C provides the percentage of total eligibles for each State, determined as the number of individuals for the State in Column B divided by the Total Number of Individuals for all States in Column B.

Column D—Prior FY 2005 QI Allotments. Column D contains each State's prior FY 2005 QI allotments, calculated as the State's percentage of total eligibles in Column C multiplied by the total amount available for FY 2005 for all States ($400,000,000).

Columns E through J shows the determination of the States' revised FY 2005 QI allotments.

Column E—FY 2005 Estimated QI Expenditures. Column E contains the States' most recent estimates of their total QI expenditures for FY 2005.

Column F—Need (Difference). Column F contains the additional amount of QI allotment needed for those States whose estimated expenditures in Column E exceed their original FY 2005 QI allotment in Column D; for such States Column E shows the difference of Column E minus Column D. For other States, Column F shows “NA”.

Column G—Reduction Pool for Non-Need States. Column G contains the amount of the pool of surplus FY 2005 QI allotments for those States that project they will not need all of their FY 2005 QI allotment. For States whose estimates of QI expenditures for FY 2005 in Column E are equal to or less than their original FY 2005 QI allotment in Column D (referred to as non-need States), Column G shows the difference of Column D minus Column E.

Column H—Percent of Total Non-Need States. Column H shows the percentage of the total excess FY 2005 allotments for each Non-Need State, determined as the amount for each Non-Need State in Column G divided by the sum of the amounts for all states in Column G.

Column I—Reduction for Non-Need States. Column I shows the amount of reduction to Non-Need States' prior FY 2005 QI allotments in Column D in order provide for the total need shown in Column F (due to rounding adjustments, this total need is $8,914,634). The amount in Column I is determined as the percentage in Column H for Non-Need States multiplied by the total in Column F.

Column J—Revised FY 2005 QI Allotments. Column J contains the revised FY 2005 QI allotments for each State. For States that needed additional amounts based on their estimates, Column J is equal to the amount in Column D plus the additional need in Column F. For Non-Need States, Column J is equal to the amount in Column D minus the amount in Column I.

Regulations governing fishing activity in the U.S./Canada Management Areas are found at 50 CFR 648.85. In addition, regulations specifically governing vessel operations in the Eastern U.S./Canada Haddock SAP Pilot Program are specified at § 648.85(b)(8). These regulations authorize vessels issued a valid limited access NE multispecies permit and fishing under a NE multispecies DAS to fish in the Eastern U.S./Canada Area, including the Eastern U.S./Canada Haddock SAP Pilot Program, under specific conditions. The final GB cod TAC allocation for the 2005 fishing year was specified at 260 mt (July 7, 2005; 70 FR 39190). Once 30 percent and/or 60 percent of the TAC allocations specified for the U.S./Canada Management Area are projected to have been harvested, the regulations at § 648.85(a)(3)(iv)(D) authorize the Regional Administrator to modify or close access to the Eastern U.S./Canada Area by all limited access NE multispecies DAS vessels to prevent over-harvesting the TAC allocations for the U.S./Canada Management Area.

Based upon vessel monitoring system (VMS) daily catch reports, dealer reports, and other available information, the Regional Administrator has determined that, to date, 90 percent of the 2005 GB cod TAC of 260 mt has been harvested by NE multispecies DAS vessels fishing in the Eastern U.S./Canada Area. Based on the small 2005 GB cod TAC and the very rapid rate at which the GB cod TAC has been harvested during the 2005 fishing year, it is likely that the 2005 GB cod TAC would be harvested before the end of the fishing year. Therefore, based on the available information described above, to ensure that the TAC for GB cod will not be exceeded, the Eastern U.S./Canada Area, including the Eastern U.S./Canada Haddock SAP Pilot Program, is closed to all limited access NE multispecies DAS vessels for the remainder of the 2005 fishing year, effective August 26, 2005 through April 30, 2006, pursuant to the regulations at § 648.85(a)(3)(iv)(D). This area may be reopened at a later date during the 2005 fishing year, in accordance with the regulations at § 648.85(a)(3)(iv)(D), should it be determined that there is additional GB cod TAC remaining and that it could be harvested without resulting in exceeding the GB cod TAC for the 2005 fishing year. However, vessels that have already declared their intent to fish in the Eastern U.S./Canada Area, including the Eastern U.S./Canada Haddock SAP Pilot Program (VMS Area Codes 2, 5, or 6) through VMS, departed on a trip, and crossed the demarcation line as of 0001 hours on August 26, 2005, are exempt from the closure initially in that they may finish their trip into the Eastern U.S./Canada Area.

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

Pursuant to 5 U.S.C. 553(b)(B) and (d)(3), the Assistant Administrator finds good cause to waive prior notice and opportunity for public comment, as well as the 30-day delayed effectiveness for this action, as notice and comment and delayed effectiveness would be impracticable and contrary to the public interest. Given the small GB cod TAC for the Eastern U.S./Canada Area during the 2005 fishing year and the very rapid rate at which the GB cod TAC was harvested to date, it would be impractical for NMFS to provide for prior notice and opportunity for public comment or a delayed effectiveness because this would likely prevent the agency from closing the Eastern U.S./Canada Area and the Eastern U.S./Canada Haddock SAP Pilot Program before the GB cod TAC is fully harvested. To allow vessels to continue to direct fishing effort on GB cod during the period necessary to publish and receive comments on a proposed rule, or to delay effectiveness, would result in the continued harvest of GB cod, potentially increasing the potential for the groundfish fishery to exceed the GB cod TAC for the Eastern U.S./Canada Area during the 2005 fishing year, thereby unnecessarily delaying rebuilding of this overfished stock. Exceeding the GB cod TAC during the 2005 fishing year would require any overages to be deducted from the 2006 GB cod TAC for the Eastern U.S./Canada Area. This would result in decreased revenue for the NE multispecies fishery, increased economic impacts to vessels operating in the Eastern U.S./Canada Area, reduced opportunities to fully harvest the GB cod, GB haddock, and GB yellowtail flounder TACs in the Eastern U.S./Canada Area, and a reduced chance of achieving optimum yield in the groundfish fishery. The rate of harvest of GB cod in the Eastern U.S./Canada Area is updated weekly on NMFS's Northeast Regional Office website at http://www.nero.noaa.gov . Accordingly, the public is able to obtain information that would provide at least some advanced notice of a potential closure of the Eastern U.S./Canada Area minimizing the need for a delayed effectiveness. Therefore, based on the above, it would be impracticable and contrary to the public interest to delay closure of this area through prior notice and public comment or a delay in the effectiveness of this action.