Background

On May 11, 2004, OMB established title 2 of the CFR with two subtitles (69 FR 2627). Subtitle A, ”Government-wide Grants and Agreements,” contains OMB policy guidance to Federal agencies on grants and agreements. Subtitle B, “Federal Agency Regulations for Grants and Agreements,” contains Federal agencies' regulations implementing the OMB guidance, as it applies to grants and other financial assistance agreements and nonprocurement transactions.

On August 31, 2005, OMB published interim final guidance for government-wide nonprocurement debarment and suspension in the Federal Register (70 FR 51863). The guidance was located in title 2 of the CFR as new subtitle A, chapter 1, part 180. The interim final guidance updated previous OMB guidance that was issued pursuant to Executive Order 12549, “Debarment and Suspension” (February 18, 1986), which gave government-wide effect to each agency's nonprocurement debarment and suspension actions.

Section 6 of the Executive order authorized OMB to issue guidance to Executive agencies on nonprocurement debarment and suspension, including provisions prescribing government-wide criteria and minimum due process procedures.

Section 3 directed Executive agencies to issue regulations implementing the Executive order that are consistent with the OMB guidelines. The interim final guidance at 2 CFR part 180 conforms the OMB guidance with the Federal agencies' November 26, 2003, update to the common rule on nonprocurement debarment and suspension (see 70 FR 51864). Although substantively the same as the common rule, OMB's interim final guidance was published in a form suitable for agency adoption, thus eliminating the need for each agency to repeat the full text of the OMB government-wide guidance in its implementing regulations. This new approach is intended to make it easier for recipients of covered transactions or respondents in suspension or debarment actions to discern agency-to-agency variations from the common rule language; reduce the volume of Federal regulations in the CFR; and streamline the process for updating the government-wide requirements on nonprocurement debarment and suspension (70 FR 51864).

On November 15, 2006, OMB published a final rule adopting the interim final guidance with changes (71 FR 66431). This final rule places DOS's nonprocurement debarment and suspension regulations in subtitle B of title 2 of the CFR, along with other agencies' nonprocurement debarment and suspension rules. This action was required by the OMB interim final guidance, which was made final on November 15, 2006 (see 2 CFR 180.20, 180.25, 180.30 and 180.35).

The new CFR part 601 adopts the OMB guidelines with additions and clarifications that DOS made to the common rule on nonprocurement suspension and debarment in the DOS rule published on November 26, 2003 (68 FR 66582-84). The substance of DOS's nonprocurement debarment and suspension regulations is unchanged. DOS is removing 22 CFR part 137, which was added to the CFR as part of the November 2003 common rule. DOS is also amending references in both Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations (22 CFR part 145) and Government-wide Requirements for Drug-Free Workplace (22 CFR part 133) to update the reference to DOS's nonprocurement debarment and suspension regulations.

OMB has determined this rule non-significant.

This regulatory action will not have a significant adverse impact on a substantial number of small entities.

This regulatory action does not contain a Federal mandate that will result in the expenditure by State, local, and tribal governments, in aggregate, or by the private sector of $100 million or more in any one year.

This final rule does not impose any additional reporting or recordkeeping requirements under the Paperwork Reduction Act.

This regulatory action does not have Federalism implications, as set forth in Executive Order 13132. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

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

The Congressional Review Act, 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. DOS 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). This rule will be effective 30 days from the date of publication in the Federal Register .

This rule has been determined to be not significant for purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

Also, pursuant to the requirements of the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. AMS regularly reviews its user fee financed programs to determine if the fees are adequate. The Agency has and will continue to identify and implement appropriate changes to reduce its costs. Such actions can reduce the need for fee increases. The processed fruit and vegetable grading and inspection service administers a number of user fee programs with established fee schedules to offset the cost of the service. The fee schedule for the subject lot, year-round, and less than year-round processed fruit and vegetable inspection programs was last revised on October 30, 2003 (68 FR 61733). However, even with cost control efforts, the existing fee schedule for these programs will not generate sufficient revenues to cover costs and sustain an adequate reserve balance, 4 months of costs, as called for by Agency policy (AMS Directive 408.1).

At the start of Fiscal Year (FY) 2006, the processed fruit and vegetable grading and inspection service had a reserve balance of $8 million, of which, the lot, year-round, and less than year-round programs accounted for $3.4 million. AMS projects that the costs for the services covered by this final rule will rise from $15 million in FY 2005 to $15.4 million in FY 2006. Revenues for FY 2006 are projected to be at $15.0 million. The increase in costs is primarily a result of rising employee salaries and benefits. For example, since the last fee schedule change, employees have received a 3.1 and 3.4 percent pay increase effective January 2005 and January 2006, respectively.

For FY 2006, the end-of-year reserve balance will decline from $3.4 million to $3.0 million, and the months of reserve will fall from 2.6 months to 2.4 months. For FY 2007, without a fee increase, the end-of-year reserve balance would be $2.5 million; the months of reserve will be 1.9; with the projected costs of $15.8 million and revenues of $15.3 million.

With the fee increase, these services will generate sufficient revenue so that by the end of FY 2007, the reserve balance will be $5.3 million and 4.0 months. AMS will perform fee analyses to determine if further fee adjustments in FY 2007 are necessary to maintain an adequate reserve and ensure fiscal stability.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. The first action increases user fee revenue generated under the lot inspection program and the year-round and less than year-round inspection programs by an estimated $1.5 million in FY 2007. The second action will recoup the cost for a plant survey and sanitation inspection performed in plants entering into an in-plant inspection contract with AMS. Currently, fees that are charged for a plant survey and sanitation inspection under § 52.48 are credited back to plants entering into an in-plant inspection contract with AMS within 60 days of the survey. There are presently 239 plants with an in-plant inspection contract not being charged for the plant survey and sanitation inspection. Billing for the plant survey and sanitation inspection will increase user fee revenue generated under the year-round and less than year-round inspection programs by approximately $143,000 annually. The third action will recoup the cost for Sunday differential when an employee works on Sunday for plants entering into a year-round in-plant contract, entering into a less than year-round in-plant (four or more consecutive 40 hour weeks) contract, and not under contract. During calendar year 2004, there were 3,562 Sunday differential hours not charged at premium rate to applicants. Billing applicants for Sunday differential will increase user fee revenue generated under the lot inspection program, the year-round inspection program, and the less than year-round inspection program by approximately $35,000 annually. The forth action will change the word “approvement” to “approved” in § 52.2, Inspection Services; types of, paragraph (d) Pack certification.

These actions are authorized under the AMA of 1946 [7 U.S.C. 1622(h)] which provides that the Secretary of Agriculture assess and collect “such fees as will be reasonable and as nearly as may be to cover the costs of services rendered * * *”

There are more than 1,250 users of Processed Products Branch's lot, year-round, and less than year-round inspection services (including applicants who must meet import requirements, 1 inspections which amount to under two percent of all lot inspections performed). A small portion of these users are small entities under the criteria established by the Small Business Administration (13 CFR 121.201).

There are no additional reporting, recordkeeping, or other compliance requirements imposed upon small entities as a result of this rule. AMS has not identified any other federal rules which may duplicate, overlap, or conflict with this final rule. The impact on all businesses, including small entities, is very similar. Further, even though fees will be increased, the amount of the increase should not significantly affect these entities.

This fee increase moves the program towards an adequate reserve and financial stability. Considering the alternatives, without the fee increase, this result would not be accomplished. Finally, except for those applicants who are required to obtain inspections in connection with certain imports, these businesses are under no obligation to use these inspection services.

The rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have a retroactive effect and doesn't preempt any State or local laws, regulations, or policies unless they present an irreconcilable conflict with this rule. There are no administrative procedures which must be exhausted prior to any judicial challenge to the provisions of this final rule.

The AMA authorizes official inspection, grading, and certification for processed fruits, vegetables, and processed products made from them. The AMA provides that the Secretary collect reasonable fees from the users of the services to cover, as nearly as practicable, the costs of the services rendered. This final rule amends the schedule for fees for inspection services rendered to the processed fruit and vegetable industry to reflect the costs necessary to operate the program.

AMS regularly reviews its user fee programs to determine if the fees are adequate. While AMS continues to pursue opportunities to reduce its costs, the existing fee schedule will not generate sufficient revenues to cover lot, year-round, and less than year-round inspection program costs while maintaining an adequate reserve balance.

Based on the Agency's analysis of increasing program costs, AMS is (1) increasing the fees relating to lot, year-round, and less than year-round inspection services, (2) billing in-plant applicants for plant survey and sanitation inspection, and (3) billing applicants for Sunday differential when applicable.

At the start of FY 2006, the processed fruit and vegetable grading and inspection service had a reserve balance of $8 million, of which, the lot, year-round, and less than year-round programs accounted for $3.4 million. AMS projects that the costs for the services covered by this final rule will rise from $15 million in FY 2005 to $15.4 million in FY 2006. Revenues for FY 2006 are projected to be at $15.0 million. The increase in costs is primarily a result of rising employee salaries and benefits. For example, since the last fee schedule change, employees have received a 3.1 and 3.4 percent pay increase effective January 2005 and January 2006, respectively.

For FY 2006, the end-of-year reserve balance will decline from $3.4 million to $3.0 million, and the months of reserve will fall from 2.6 months to 2.4 months. For FY 2007, without a fee increase, the end-of-year reserve balance would be $2.5 million; the months of reserve would be 1.9; with the projected costs of $15.8 million and revenues of $15.3 million.

With the fee increase these services will generate sufficient revenue so that by the end of FY 2007, the reserve balance will be $5.3 million and 4.0 months. AMS will perform fee analyses to determine if further fee adjustments in FY 2007 are necessary to maintain an adequate reserve and ensure fiscal stability.

For inspection services charged on a contract basis under § 52.51, overtime work will also continue to be charged as provided in that section. The following fee schedule compares current fees and charges with final fees and charges for processed fruit and vegetable inspection as found in 7 CFR 52.42-52.51. Unless otherwise provided for by written agreement between the applicant and the Administrator, the charges in the schedule of fees as found in § 52.42 are:

Charges for travel and other expenses as found in § 52.50 are:

Charges for year-round in-plant inspection services on a contract basis as found in § 52.51 (c) are:

(1) For inspector assigned on a year-round basis:

(2) For inspector assigned on less than a year-round basis:

Each inspector:

Charges for less than year-round in-plant inspection services (four or more consecutive 40 hour weeks) on a contract basis as found in § 52.51 (d) are:

(1) Each inspector:

Furthermore, AMS will recoup the cost for a plant survey and sanitation inspection performed in plants entering into an in-plant inspection contract with AMS. Currently, fees that are charged for a plant survey and sanitation inspection are credited back to plants entering into an in-plant inspection contract with AMS within 60 days of the survey. There are presently 239 plants with an in-plant inspection contract not being charged for the plant survey and sanitation inspection. Billing for the plant survey and sanitation inspection will increase user fee revenue generated under the year-round and less than year-round inspection programs by approximately $143,000 annually. In addition, AMS will recoup the cost for Sunday differential for plants entering into a year-round in-plant contract, entering into a less than year-round in-plant (four or more consecutive 40 hour weeks) contract, and not under contract. During calendar year 2004, there were 3,562 Sunday differential hours not charged to plants. Billing plants for Sunday differential will increase user fee revenue generated under the lot inspection program, the year-round inspection program, and the less than year-round inspection program by approximately $35,000 annually. Finally, the last action will change the word “approvement” to “approved” in § 52.2, Inspection Service; types of, paragraph (d) Pack certification.

A notice of proposed rulemaking was published in the Federal Register on July 11, 2006, (71 FR, No. 132, 39017) with a thirty-day comment period. AMS received two comments during this period.

The first comment was received from the Association of Food Industries, Inc. (AFI). AFI asked how this revision would affect imported products. The fee increase applies to the voluntary inspection and certification of processed fruits and vegetables whether domestic or imported. Further, as noted previously under 8e of the Agricultural Marketing Agreement Act of 1937, certain imported processed commodities are subject to import regulations which include inspection requirements.

The second comment was received from an individual who expressed concurrence with the revision.

Today's final rule addresses five categories of commercial equipment  1 : (1) Small and large commercial packaged boilers; (2) gas-fired instantaneous water heaters; (3) packaged terminal air conditioners (PTACs) and packaged terminal heat pumps (PTHPs); (4) three-phase air conditioners (ACs) and heat pumps (HPs) with cooling capacities less than 65,000 British thermal units per hour (Btu/h); and (5) single-package vertical air conditioners (SPVAC) and single-package vertical heat pumps (SPVHP), collectively referred to as single package vertical units (SPVUs).

By today's action, DOE is publishing a final rule that prescribes no amended standard. As discussed in section II.A through II.F of this notice, DOE has decided:

(1) Not to amend the standards for large commercial packaged boilers (greater than 2.5 million Btu/h) and gas-fired instantaneous water heaters because ASHRAE/IESNA did not amend the levels for these products in ASHRAE/IESNA Standard 90.1-1999 and, thus, did not trigger the provision requiring DOE to amend the standards established under EPCA;

(2) Not to amend the standards for small commercial packaged boilers (greater than 300,000 Btu/h and less than or equal to 2.5 million Btu/h) because the ASHRAE/IESNA Standard 90.1-1999 levels for these products are less stringent than the existing EPCA standards;

(3) Not to amend the standards for packaged terminal air conditioners and packaged terminal heat pumps because DOE will conduct a separate rulemaking to determine if clear and convincing evidence supports standard levels higher than those in ASHRAE/IESNA Standard 90.1-1999;

(4) Not to amend the standards for three-phase air conditioners and heat pumps less than 65,000 Btu/h because EPACT 2005 amended EPCA to provide that only an amendment to ASHRAE/IESNA Standard 90.1 as in effect on January 1, 2010, triggers DOE to amend the standards established under EPCA;

(5) Not to amend the standards for single-package vertical air conditioners and single-package vertical heat pumps less than 65,000 Btu/h because EPACT 2005 amended EPCA to provide that only an amendment to ASHRAE/IESNA Standard 90.1 as in effect on January 1, 2010, triggers DOE to amend the standards established under EPCA; and

(6) Not to amend the standards for single-package vertical air conditioners and single-package vertical heat pumps greater than or equal to 65,000 Btu/h and less than 240,000 Btu/h because DOE has determined that these products are covered by standards established by EPACT 2005 for large commercial package air conditioning and heating equipment with cooling capacities greater than or equal to 65,000 Btu/h and less than 760,000 Btu/h.

Part C of Title III of EPCA addresses the energy efficiency of certain types of commercial and industrial equipment. (42 U.S.C. 6311-6317) It contains, for example, specific mandatory energy conservation standards for tankless, gas-fired IWHs; PTACs and PTHPs; small and large commercial packaged boilers; and commercial package air-conditioning and heating equipment. The latter category includes three-phase ACs and HPs with cooling capacities less than 65,000 Btu/h, as well as SPVACs and SPVHPs with cooling capacities less than 65,000 Btu/h. (42 U.S.C. 6313(a)(1)-(5))

The energy conservation standards set forth in EPCA for these and related types of commercial and industrial equipment generally correspond to the levels in ASHRAE/IESNA Standard 90.1, effective October 24, 1992 (ASHRAE/IES Standard 90.1-1989). Pursuant to section 342(a)(6)(A)(i) of EPCA, DOE, except in certain circumstances, must amend energy conservation standards for the listed ASHRAE equipment if ASHRAE amends ASHRAE/IESNA Standard 90.1. With respect to certain types of commercial and industrial equipment, including all of the equipment covered by today's rule, prior to the enactment of Energy Policy Act of 2005 (EPACT 2005), any amendment of ASHRAE/IES Standard 90.1, as in effect on October 24, 1992 (the date of enactment of the Energy Policy Act of 1992) would trigger DOE action for adopting amended uniform national standards for this equipment. EPACT 2005 changed the October 24, 1992, date for small and large commercial package air conditioning and heating equipment, so that only an amendment of ASHRAE/IES Standard 90.1 as in effect on January 1, 2010, would trigger DOE action to adopt amended uniform national standards. Pursuant to EPACT 2005, this provision also applies to “very large” commercial package air conditioning and heating equipment. Id. Any SPVU with a cooling capacity below 760,000 Btu/h would be within the definition of small, large, or very large commercial package air conditioning and heating equipment. (42 U.S.C. 6311(8)(A)-(D))

Under certain circumstances delineated in EPCA, DOE may adopt standards more stringent than the levels in amendments to ASHRAE/IES Standard 90.1. (42 U.S.C. 6313(6)(A)(i)-(ii)) In any such rulemaking, the rule must contain the amended standard. The Secretary may not prescribe any amended standard that increases maximum allowable energy use, or decreases the minimum required energy efficiency, of the covered equipment. (42 U.S.C. 6313(a)(6)(B)(ii)) Furthermore, the Secretary may not prescribe an amended standard if the Secretary publishes a finding that interested persons have established by a preponderance of evidence that the amended standard is likely to result in the unavailability in the United States of products with performance characteristics (including reliability), features, sizes, capacities, and volumes that are substantially the same as those generally available in the United States at the time of the Secretary's finding. (42 U.S.C. 6313(a)(6)(B)(ii))

On October 29, 1999, ASHRAE approved and published ASHRAE/IESNA Standard 90.1-1999, which addressed efficiency levels for many categories of commercial heating, ventilating, air-conditioning (HVAC), and water-heating equipment covered by EPCA. ASHRAE/IESNA Standard 90.1-1999 revised the efficiency levels in ASHRAE/IESNA Standard 90.1-1989 for certain equipment. For the remaining equipment, ASHRAE left the preexisting levels in place after considering revising the levels for some equipment and deferring consideration of others.

Following publication of ASHRAE/IESNA Standard 90.1-1999, DOE performed a screening analysis for the categories of equipment for which ASHRAE addressed efficiency levels in ASHRAE/IESNA Standard 90.1, to determine what action DOE would take with respect to these levels. 65 FR 10984. Upon completion of the screening analysis, DOE published a notice of document availability and public workshop on May 15, 2000. The May 15, 2000, notice invited written comments on the screening analysis and DOE's planned actions and described the screening analysis and announced its availability to the public. 65 FR 30929. For each equipment category for which ASHRAE adopted or considered an amended efficiency level, the notice stated what action DOE was inclined to take. 65 FR 30935. ASHRAE did not amend the standard levels for three-phase ACs and HPs with cooling capacities less than 65,000 Btu/h at that time. However, it was DOE's understanding that the ASHRAE Standard 90.1 committee intended to amend the levels once the DOE rulemaking for residential central air conditioners energy efficiency standards had been completed. Based on ASHRAE's action and DOE's understanding of the ASHRAE Standard 90.1 committee's intention to adopt the same level as DOE adopted for residential central air conditioners, DOE stated that it had decided to take no action until ASHRAE had amended ASHRAE/IESNA Standard 90.1's efficiency levels for three-phase ACs and HPs with cooling capacities less than 65,000 Btu/h. 71 FR 12643. In Addendum f to ASHRAE/IESNA Standard 90.1-2004, ASHRAE adopted the same minimum energy efficiency standards for this equipment as DOE had adopted for residential central air conditioners. ASHRAE adopted Addendum f to ASHRAE/IESNA Standard 90.1-2004 on April 1, 2006.

Following the public meeting on July 11, 2000, DOE adopted the efficiency levels in ASHRAE/IESNA Standard 90.1-1999 as uniform national standards to replace existing EPCA levels for 18 categories of commercial equipment in the January 2001 final rule. 66 FR 3335, 3336-37, 3349-52 (January 12, 2001). DOE also rejected the ASHRAE/IESNA Standard 90.1-1999 levels for electric water heaters, leaving the EPCA level in place for that equipment. 66 FR 3337.

In this same final rule, for 11 categories of commercial equipment, 3 DOE stated it would evaluate whether to adopt more stringent standards than those contained in ASHRAE/IESNA Standard 90.1-1999. 66 FR 3336-38, 3349-52. For the four categories of three-phase air-conditioning equipment that ASHRAE had not addressed in ASHRAE/IESNA Standard 90.1-1999, DOE understood that ASHRAE intended to amend its efficiency levels for this equipment in conjunction with the then-pending DOE standards rulemaking for similar, single-phase residential products. 4 The standard levels prescribed in EPCA and ASHRAE/IESNA Standard 90.1-1999 for these 15 equipment categories  5 appear in Tables I.1 and I.2. EPACT 2005 included energy efficiency standards for some of these commercial air conditioners and heat pumps; those new standards also appear in Tables I.1 and I.2. EPACT 2005 prescribed more stringent standards than those contained in ASHRAE/IESNA Standard 90.1-1999 for commercial package air-conditioning and heating equipment with cooling capacities between 65,000 Btu/h and 240,000 Btu/h as listed in Table I.1. 6

On August 3, 2006, we issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to certain Cessna Models 172R, 172S, 182S, 182T, T182T, 206H, and T206H airplanes. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on August 9, 2006 (71 FR 45454). The NPRM proposed to require you to install a modification kit on both crew seat back cylinder lock assemblies, which replaces the cylinder lock with a new model cylinder lock, or install a steel lock rod/bar on both crew seat back cylinder lock assemblies. The NPRM also proposed to require you to do an installation inspection on previously installed modification kits and correct any discrepancies found.

We provided the public the opportunity to participate in developing this AD. The following presents the comments received on the proposal and FAA's response to each comment:

Michael A. Zaite states that having flown a number of Cessna airplanes, he has experienced this problem first hand and supports the AD.

The Cessna Pilots Association (CPA) also supports the AD. The CPA states one of two methods can permanently resolve the issue. Installing a solid bar thereby preventing any further aft movement of the seat back or installing Modification Kit MK172-25-10C are both acceptable solutions for the collapsing seat back issue.

We agree with Mr. Zaite and the CPA. Both of these methods are allowable in the AD. We are not changing the final rule AD action.

Jack Buster with the Modification and Replacement Parts Association (MARPA) provides comments on the AD process pertaining to how the FAA addresses publishing manufacturer service information as part of a proposed AD action. The commenter states that the proposed rule attempts to require compliance with a public law by reference to a private writing (as referenced in paragraph (e) of the proposed AD). The commenter would like the FAA to incorporate by reference (IBR) the Cessna service bulletins.

We agree with Mr. Buster. However, we do not IBR any document in a proposed AD action, instead we IBR the document in the final rule. Since we are issuing the proposal as a final rule AD action, Cessna Single Engine Service Bulletin SB04-25-01, Revision 4, dated December 26, 2006, Cessna Single Engine Service Bulletin SB04-25-02, Revision 1, dated October 17, 2005, and Cessna Single Engine Service Bulletin SB04-25-02, Revision 2, dated June 5, 2006, are incorporated by reference.

Mr. Buster requests IBR documents be made available to the public by publication in the Federal Register or in the DMS.

We are currently reviewing issues surrounding the posting of service bulletins in the Department of Transportation's DMS as part of the AD docket. Once we have thoroughly examined all aspects of this issue and have made a final determination, we will consider whether our current practice needs to be revised.

The International Cessna 170 Association states a concern that the affected seats may be installed on other airplanes. Many operators of Cessna airplanes find seats of later models desirable due to features subsequently added by manufacturers, i.e., recline/height-adjustment/mechanisms. The commenter also states that these seats usually have similar, if not identical, attachment to floor tracks and airframes; therefore, the possibility exists for installing the seats from the same manufacturer on other models of airplanes. These models may include Cessna 170, 170A, and 170B airplanes.

The commenter requests the applicability of the AD be specific to the crew seat model/part-number and not the airplane models.

Although it may be possible to install these seats on other Cessna airplane models, we are not aware of any such installations. In addition, the modification to the seat rails and other airplane configuration changes that would be required to install these seats would make any installation unlikely. We will continue to monitor this situation and, if we receive information from owner/operators indicating these seats are being installed on other airplanes, we will consider additional rulemaking on this subject.

We are not changing the final rule AD action based on this comment.

Cessna Aircraft Company states that reports of five additional seat back failures have been received since issuing Service Bulletin SB04-25-01, Revision 3, dated July 24, 2006.

It was also determined that incorporating Modification Kit MK172-25-10B on Models 206H and T206H airplanes equipped with an optional Keith Products, L.P. air conditioner system (installed in accordance with Supplemental Type Certificate SA10144SC) was impossible.

Cessna has issued Revision 4 to Service Bulletin SB04-25-01, dated December 26, 2006, which incorporates Modification Kit MK172-25-10C to address this issue.

We are changing the final rule AD action to incorporate Cessna Single Engine Service Bulletin SB04-25-01, Revision 4, dated December 26, 2006, which references Modification Kit MK172-25-10C.

We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed except for minor editorial corrections. We have determined that these minor corrections:

• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

We estimate that this AD will affect 4,039 airplanes in the U.S. registry. We provide below total fleet costs for both the modification and the steel lock rod/bar installation; however, only one of these actions will be required.

We estimate the following costs to do the installation of the modification kit:

We estimate the following costs to do the fabrication and installation of a steel lock rod/bar:

We estimate the following costs to do the installation inspection on airplanes that have Modification Kit MK172-25-10A or MK172-25-10B installed:

We have no method of determining the number of airplanes that may have Modification Kit MK172-25-10A or MK172-25-10B previously installed.

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

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

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 the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

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

We prepared a summary of the costs to comply with this AD (and other information as included in the Regulatory Evaluation) and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES . Include “Docket No. FAA-2006-25261; Directorate Identifier 2006-CE-38-AD” in your request.

The FAA is implementing a new process for streamlining the issuance of ADs related to MCAI. The streamlined process will allow us to adopt MCAI safety requirements in a more efficient manner and will reduce safety risks to the public. This process continues to follow all FAA AD issuance processes to meet legal, economic, Administrative Procedure Act, and Federal Register requirements. We also continue to meet our technical decision-making responsibilities to identify and correct unsafe conditions on U.S.-certificated products.

This AD references the MCAI and related service information that we considered in forming the engineering basis to correct the unsafe condition. The AD contains text copied from the MCAI and for this reason might not follow our plain language principles.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on January 8, 2007 (72 FR 672). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

The MCAI requires:

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.

We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed.

We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.

We might also have required different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are described in a separate paragraph of the AD, and take precedence over the actions copied from the MCAI.

We estimate that this AD will affect 7 products of U.S. registry. We also estimate that it will take about 5 work-hours per product to comply with this AD. The average labor rate is $80 per work-hour. Required parts will cost about $20 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $2,940, or $420 per product.

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 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 this AD:

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

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

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

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

You may examine the AD docket on the Internet at http://dms.dot.gov; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone (800) 647-5227) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

On February 16, 2007, the FAA issued emergency AD 2007-04-51, that applies to GE CF34-3A1/-3B/-3B1 turbofan engines. That AD requires a onetime visual and tactile inspection of certain areas of certain SN fan disks, within 20 engine flight hours after the effective date of that AD. That AD resulted from a report that a GE CF34-3B1 turbofan engine experienced an uncontained fan disk failure during flight operation. After landing the airplane, an inspection of the GE CF34-3B1 engine showed the front section of the engine failed, resulting in the fan, forward cowlings, and fan reverser departing from the engine. The airplane sustained minor fuselage damage. A subsequent inspection of the recovered segments of the fan disk found an electrical arc-out defect at the fracture origin site. The fan disk was marked using the electro-chemical etch marking (ECM) procedure during engine assembly. If the ECM procedure is performed incorrectly, an arc-out defect can occur. This arc-out defect, caused during part marking, resulted in the uncontained failure.

This condition, if not corrected, could result in an uncontained fan disk failure and airplane damage. Since emergency AD 2007-04-51 was issued, GE discovered eight additional SNs of fan disks suspected of having an arc-out defect.

We have reviewed and approved the technical contents of GE Alert Service Bulletin (ASB) No. CF34-BJ S/B 72-A0213, dated February 15, 2007, and Revision 1, dated February 27, 2007, and GE ASB No. CF34-AL S/B 72-A0232, dated February 15, 2007, and Revision 1, dated February 27, 2007, that describe procedures for visual and tactile inspection of certain areas of certain SN fan disks suspected of having an arc-out defect.

Since the unsafe condition described is likely to exist or develop on other engines of the same type design, we are issuing this AD to supersede emergency AD 2007-04-51 and to prevent an uncontained fan disk failure and airplane damage. This AD requires a onetime visual and tactile inspection of certain areas of certain SN fan disks for an arc-out defect, within 20 engine flight hours after the effective date of this AD. 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 to make the AD effective immediately to all known U.S. owners and operators of GE CF34-3A1/-3B/-3B1 turbofan engines. We are publishing the AD in the Federal Register as an amendment to Section 39.13 of part 39 of the Code of Federal Regulations (14 CFR part 39) to make it effective to all persons.

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-2007-27308; Directorate Identifier 2007-NE-06-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 between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone (800) 647-5227) is located on the plaza level of the Department of Transportation Nassif Building at the street address stated in ADDRESSES . Comments will be available in the AD docket shortly after the DMS receives them.

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

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

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

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

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

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

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

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

You may examine the airworthiness directive (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 street address stated in the ADDRESSES section.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to certain Airbus Model A330 airplanes and Model A340-200 and -300 series airplanes. That NPRM was published in the Federal Register on December 28, 2006 (71 FR 78102). That NPRM proposed to require inspecting to determine the part number of certain S4- and MZ-type spoiler servo-controls (SSCs). For certain other airplanes, that NPRM proposed to require inspecting to determine the part number of all SSCs. That NPRM also proposed to require replacing any affected SSC with a new SSC.

We provided the public the opportunity to participate in the development of this AD. We received no comments on the NPRM or on the determination of the cost to the public.

We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed.

This AD affects about 27 airplanes of U.S. registry.

It takes about 1 work hour per airplane to accomplish the inspection to determine the part number, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the inspection required by this AD for U.S. operators is $2,160, or $80 per airplane.

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

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

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

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

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

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

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

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

On June 19, 2006, a final rule was published in the Federal Register , Docket No. FAA-2006-24004, Airspace Docket No. 06-AAL-13, that amended Title 14 Code of Federal Regulations part 71 by revising the Class E Airspace area at Huslia, AK (71 FR 35151). In that rule, the reference to FAA Order 7400.9 was published as FAA Order 7400.9N. The correct reference is FAA Order 7400.9P. In addition, the corresponding dates that refer to the Order are incorrect. Instead of “* * *September 1, 2005, and effective September 15, 2005”, the dates should read “* * *September 1, 2006, and effective September 15, 2006* * *”.

On October 1, 1999, the United States Information Agency was consolidated into the United States Department of State. The reorganization was carried out in accordance with the Foreign Affairs Reform and Restructuring Act of 1998, which also called for the Arms Control and Disarmament Agency and some functions of the Agency for International Development to be integrated into the Department of State.

As a consequence of this extensive merger, the Department of State issued a final rule (64 FR 54538-54541) amending USIA's regulations. The final rule repealed, revised, re-designated, and otherwise amended USIA's authorities. Among other things, the USIA Waiver Review Branch of the Office of the General Counsel was moved into the Department of State's Visa Office. The USIA Waiver Review Branch became the Waiver Review Division of the Office of Legislation, Regulations, and Advisory Assistance, Visa Services, Bureau of Consular Affairs, CA/VO/L/W. It maintains its previous responsibilities for reviewing applications by J-1 exchange visitors who are seeking waivers of the two-year foreign residence requirement set forth at Section 212(e) of the Immigration and Nationality Act (INA). The Division makes recommendations to the Department of Homeland Security concerning such waivers.

The Department of State inherited a multitude of functions as a result of the October 1, 1999 consolidation of USIA into the Department of State. The pertinent regulations to the waiver function contain errors as well as out-of-date references, so this regulation corrects these items. Also, Public Law 108-441, signed into law on December 3, 2004, amended section 214(l) of the Immigration and Nationality Act, which makes certain changes regarding foreign medical graduates who obtain J-1 status in order to receive graduate medical education or training.

Our regulation updates the required J-visa application form (Certificate of Eligibility for Exchange Visitor (J-1) Status), IAP-66, to reflect the current Department-approved designation, DS-2019. The term “Secretary of State” replaces the term “Director of USIA”. The Department of Homeland Security replaces the Immigration and Naturalization Service. The medical schools have been clearly identified as “foreign” medical schools. The Waiver Review Board, which is occasionally and incorrectly referred to as the “division” rather than the “board”, is also herein corrected. Finally, references to USIA's authorities previously located at 22 CFR part 514 have been corrected to reflect their relocation at 22 CFR 41.62 and 41.63. The regulation also simplifies language identifying the jurisdictional DHS office to which the waiver recommendation is sent. The language is flexible permitting DHS to designate different offices without the need for the Department to modify these regulations.

Section 212 (e) of the Act grants the Department of Homeland Security (DHS), exclusive authority to determine the existence of prospective persecution in these cases. Thus, the Visa Office honors the holding of DHS in these cases and perceives no need to submit all cases for further review. We have found that the results are sufficiently consistent with DHS findings to render this action superfluous. Furthermore, the Waiver Review Division will only submit a case for an opinion if it believes that circumstances may have meaningfully changed since the DHS finding of persecution.

The Waiver Review Board provided USIA with an excellent means of deciding cases that have compelling competing interests. The Visa Office found the Board to be a useful tool for representing differing interests and for reaching a consensus on difficult cases. This regulation proposes to realign the representation of the Board by apportioning Board membership between policy formulators in the Bureau of Consular Affairs and principals administering the exchange visitor program interests in the Bureau of Education and Cultural Affairs. The rule proposes to designate the Principal Deputy Assistant Secretary for Consular Affairs as the chair.

The old regulation indicates that 20 exchange visitor physicians could qualify for this program per state annually. But the law was amended to increase that number to 30. Further modifications to the numerical limitation on Conrad program beneficiaries are a distinct possibility; consequently, to avoid periodic amendment of the regulation, the language is being modified to refer non-specifically to the annual limitation.

This regulation involves a foreign affairs function of the United States and, therefore, in accordance with 5 U.S.C. 553(a)(1), is not subject to the rule making procedures set forth at 5 U.S.C. 553.

Small Business. This rule is not subject to the notice-and-comment rulemaking provisions of the Administrative Procedure Act or any other act, and, accordingly it does not require analysis under the Regulatory Flexibility Act (5 U.S.C. 601, et seq. ) and Executive Order 13272, section 3(b).

Section 202 of the Unfunded Mandates Reform Act of 1995 (UFMA), Public Law 104-4, 109 Stat. 48, 2 U.S.C. 1532, generally requires agencies to prepare a statement before proposing any rule that may result in an annual expenditure of $100 million or more by State, local, or tribal governments, or by the private sector. This rule will not result in any such expenditure, nor will it significantly or uniquely affect small governments.

This rule is not a major rule as defined by 5 U.S.C. 804, for purposes of congressional review of agency rulemaking under the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based companies to compete with foreign based companies in domestic and import markets.

The Department of State has reviewed this rule to ensure its consistency with the regulatory philosophy and principles set forth in Executive Order 12866 and has determined that the benefits of the proposed regulation justify its costs. The Department does not consider the rule to be an economically significant action within the scope of section 3(f)(1) of the Executive Order since it is not likely to have an annual effect on the economy of $100 million or more or to adversely affect in a material way the economy, a sector of the economy, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities.

This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Nor will the rule have federalism implications warranting the application of Executive Orders No. 12372 and No. 13132.

The Department has reviewed the proposed regulations in light of sections 3(a) and 3(b)(2) of Executive Order No. 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

This rule does not impose information collection requirements under the provisions of the Paperwork Reduction Act, 44 U.S.C., Chapter 35.

On March 9, 2006, the President signed the USA PATRIOT Improvement and Reauthorization Act of 2005 (“the Act”), Public Law 109-277 (120 Stat. 192). Section 506 of the Act created a new National Security Division (NSD) in the Department of Justice. This rule conforms the Department's regulations to the Act and sets forth the new Division's organization, mission, and functions.

This rule reflects the establishment of the NSD, reporting to the Deputy Attorney General, by consolidating the resources of the Office of Intelligence Policy and Review (OIPR) and the Criminal Division's Counterterrorism and Counterespionage Sections. These organizational changes will strengthen the Department's efforts to combat terrorism and other threats to national security.

Consolidating OIPR and the Criminal Division's Counterterrorism and Counterespionage Sections under the NSD will ensure greater coordination and unity of purpose among the Department's primary organizational units that handle core national security matters. These changes will allow the Department to maximize the effectiveness of prosecutors handling cases in the core national security fields of counterterrorism and counterespionage, who will continue to carry out the same critical functions they handle today. The NSD will be positioned to coordinate all related Department resources and ensure that critical information is shared as appropriate across the Department and the Executive Branch.

The mission of the NSD is to coordinate the Department's efforts in carrying out its core mission of combating terrorism and protecting national security. Among the major functions the NSD will perform are the following:

• Develop, enforce, and supervise the application of all federal criminal laws related to the national counterterrorism and counterespionage enforcement programs, except those specifically assigned to other Divisions;

• Prosecute and coordinate a wide range of criminal prosecutions and investigations targeting individuals and organizations involving terrorist acts at home or against U.S. persons or interests abroad or that assist in the financing of or providing support to those acts;

• Administer the Foreign Intelligence Surveillance Act;

• Supervise sensitive areas of law enforcement related to the activities of the National Security Division, except tasks assigned to other Divisions;

• Advise, assist, coordinate with, and train those in the law enforcement community, including federal, state, and local prosecutors, investigative agencies and foreign criminal justice entities (provided that any training of foreign criminal justice entities should be conducted in coordination with the Criminal Division), in matters related to the Division's activities;

• Advise the Attorney General, the Office of Management and Budget, and the White House on matters relating to the national security activities of the United States; and

• Through the Assistant Attorney General for National Security, serve as the Department of Justice's primary liaison to the Director of National Intelligence.

This rule also makes further amendments to the Department's regulations in title 28 other than in part 0 in order to make nomenclature and organizational changes reflecting the establishment of the NSD. Generally, the changes involve either adding the NSD to the list of the Department's components or substituting the NSD in place of either the Criminal Division or the Office of Intelligence Policy and Review. In some instances, the Assistant Attorney General for National Security is substituted for the Assistant Attorney General, Criminal Division or for the Counsel for Intelligence Policy, as appropriate.

This rule only makes changes to the Department's internal organization and structure and does not affect the rights or obligations of the general public.

This rule is a rule of agency organization and relates to a matter relating to agency management and is therefore exempt from the requirements of prior notice and comment and a 30-day delay in the effective date. See 5 U.S.C. 553(a)(2), 553(b)(3)(A).

The Attorney General, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it certifies that this regulation will not have a significant economic impact on a substantial number of small entities because it pertains to personnel and administrative matters affecting the Department. Further, a Regulatory Flexibility Analysis was not required to be prepared for this final rule because the Department was not required to publish a general notice of proposed rulemaking for this matter.

This action has been drafted and reviewed in accordance with Executive Order 12866, Regulatory Planning and Review, section 1(b), Principles of Regulation. This rule is limited to agency organization, management, and personnel as described by section 3(d)(3) of that order and, therefore, is not a “regulation” or “rule” as defined by the order. Accordingly, this action has not been reviewed by the Office of Management and Budget.

This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 12612, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This action pertains to agency management, personnel, and organizations and does not substantially affect the rights or obligations of non-agency parties and, accordingly, is not a “rule” as that term is used by the Congressional Review Act (Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)). Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

Section 206(d)(3) of title I of ERISA, and the related provisions of section 414(p) of the Internal Revenue Code of 1986 (Code), establish a limited exception to the prohibitions against assignment and alienation contained in ERISA section 206(d)(1) and Code section 401(a)(13). 1 Under this limited exception, a participant's benefits under a pension plan may be assigned to an alternate payee, defined as the participant's spouse, former spouse, child, or other dependent, pursuant to an order that constitutes a qualified domestic relations order (QDRO) within the meaning of those provisions. Such QDROs, in addition, survive the federal preemption of State law imposed by ERISA section 514(a) by virtue of ERISA section 514(b)(7).

Pursuant to the QDRO provisions, a plan administrator must determine, in accordance with specified procedures, whether an order purporting to divide a participant's benefits under a plan meets the applicable requirements set forth in section 206(d)(3) of ERISA. If the plan administrator determines that the order meets these requirements and is, accordingly, a QDRO within the meaning of section 206(d)(3), the plan administrator must distribute the assigned portion of the participant's benefits to the alternate payee or payees named in the order in accordance with the terms of the order.

Subparagraphs (G) and (H) of ERISA section 206(d)(3) set forth provisions relating to the procedures that a plan must establish, and a plan administrator must observe, in determining whether an order is a QDRO and in administering the plan and the participant's benefits during the period in which the plan administrator is making such a determination. The plan's procedures must be reasonable, must be in writing, must require prompt notification and disclosure of the procedures to participants and alternate payees upon receipt of an order, and must permit alternate payees to designate representatives for notice purposes. In addition, the plan administrator must complete the determination process and notify participants and alternate payees of its determination within a reasonable period after receipt of the order.

Subparagraph (H) of section 206(d)(3) provides specific procedural protection of a potential alternate payee's interest in a participant's benefits during the plan's determination process and for a period of up to 18 months (the 18-month period) during which the issue of the qualified status of a domestic relations order is being determined—whether by the plan administrator, by a court of competent jurisdiction, or otherwise. During the 18-month period, a plan administrator must separately account for any amounts that would have been payable to the alternate payee if the order had been immediately treated as a QDRO and must pay these amounts (including any interest thereon) to the alternate payee if the order is deemed qualified within such period. If the issue as to whether the order is a QDRO is not resolved within the 18-month period, the plan administrator is to pay such amounts to the person or persons who would have been entitled to the amounts if there had been no order. Any determination that an order is a QDRO that is made after the close of the 18-month period is to be applied prospectively only.

If a plan fiduciary, acting in accordance with the fiduciary responsibility provisions of part 4 of title I of ERISA, treats an order as a QDRO (or determines that such an order is not a QDRO) and distributes benefits in accordance with that determination, paragraph (I) of section 206(d)(3) provides that the obligations of the plan and its fiduciaries to the affected participants and alternate payees with respect to the distribution shall be treated as discharged.

The QDRO provisions detail specific requirements that an order must satisfy in order to constitute a QDRO. The order must be a “domestic relations order” issued pursuant to a State domestic relations law (including a community property law) that relates to the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child, or other dependent of a participant. Section 206(d)(3)(B)(ii). It must create or recognize the existence of an alternate payee's right to receive all or a portion of the benefits payable to a participant under a plan. Section 206(d)(3)(B)(i). Further, it must clearly specify the name and last known mailing address (if any) of the participant and the name and mailing address of each alternate payee covered by the order; the amount or percentage of the participant's benefits to be paid by the plan(s) to each such alternate payee, or the manner in which such amount or percentage is to be determined; the number of payments or period to which the order applies; and each plan to which the order applies. Section 206(d)(3)(C). An order will fail to be a QDRO, however, if it requires the plan to provide any type or form of benefit, or any option, not otherwise provided under the plan; to provide increased benefits determined on the basis of actuarial value; or to pay benefits to an alternate payee that are required to be paid to another alternate payee under another order previously determined to be a QDRO. Section 206(d)(3)(D).

Under section 1001 of the Pension Protection Act of 2006 (PPA), Public Law 109-280, section 1001, 120 Stat. 780 (2006), Congress instructed the Secretary of Labor to issue regulations, not later than 1 year after the date of the enactment, under section 206(d)(3) of ERISA and section 414(p) of the Code, to clarify that—(1) a domestic relations order otherwise meeting the requirements to be a QDRO, including the requirements of section 206(d)(3)(D) of ERISA and section 414(p)(3) of the Code, shall not fail to be treated as a QDRO solely because—(A) the order is issued after, or revises, another domestic relations order or QDRO; or (B) of the time at which it is issued. Section 1001 of the PPA also requires that the regulations clarify that such orders are subject to all of the same requirements and protections that apply to QDROs, including the provisions of section 206(d)(3)(H) of ERISA and section 414(p)(7) of the Code.

Paragraph (a) of the regulation provides that the scope of the regulation is to implement the directive contained in section 1001 of the PPA to clarify certain timing issues with respect to domestic relations orders and qualified domestic relations orders under ERISA.

Paragraph (b)(1) of the regulation provides that a domestic relations order otherwise meeting ERISA's requirements to be a QDRO shall not fail to be treated as a QDRO solely because the order is issued after, or revises, another domestic relations order or QDRO. Paragraph (b)(2) provides examples of this rule. 2 Example 1 illustrates this rule as applied to a subsequent order revising an earlier QDRO involving the same parties. Example 2 illustrates this rule in the context of a subsequent order involving the same participant and a different alternate payee.

Paragraph (c)(1) of the regulation provides that a domestic relations order otherwise meeting ERISA's requirements to be a QDRO shall not fail to be treated as a QDRO solely because of the time at which it is issued. Paragraph (c)(2) provides examples of this rule. Example 1 illustrates the principle that a domestic relation order will not fail to be a QDRO solely because it is issued after the death of the participant. Example 2 illustrates that a domestic relation order will not fail to be a QDRO solely because it is issued after the parties divorce. Example 3 illustrates that an order would not fail to be a QDRO solely because it is issued after the participant's annuity starting date.

Paragraph (d)(1) of the regulation provides that any domestic relations order described in paragraph (b) or (c) of the regulation shall be subject to the same requirements and protections that apply to all QDROs under section 206(d)(3) of ERISA. Paragraph (d)(2) provides examples of this rule. Example 1 illustrates that, although an order will not fail to be a QDRO solely because it is issued after the death of the participant, the order would fail to be a QDRO if it requires the plan to provide a type or form of benefit, or any option, not otherwise provided under the plan. Example 2 illustrates application of the protective rules regarding segregation of payable benefits to a second order involving the same participant and alternate payee. Example 3 illustrates that, although an order will not fail to be a QDRO solely because it is issued after another QDRO, the order would fail to be a QDRO if it assigns benefits already assigned to another alternate payee under another QDRO.

The interim final regulation will be effective 30 days after the date of publication in the Federal Register . The guidance provided by the interim final regulation is in response to the direction from Congress in section 1001 of the PPA to the Secretary of Labor to issue regulations to clarify current law under section 206(d)(3) of ERISA. The Department, therefore, has determined it is necessary and appropriate to proceed with an interim final rule to provide the clarification mandated by Congress, while also requesting public comments on the matter for the purpose of drafting a final rule.

This regulation incorporates, with minor changes, language in section 1001 of the Pension Protection Act. The changes do not modify the meaning of the statutory language. In the Department's view, Congress directed the Secretary to adopt the substance of this language as a clarification of current law. In issuing these regulations, the Secretary has not deviated from the narrow Congressional directive. The examples included in the regulation merely provide interpretive guidance by explaining how the statutory language would apply to particular facts. Therefore, in accordance with section 553(b) of the Administrative Procedure Act, 5 U.S.C. 553(b), the Department finds for good cause that notice and public procedure on this regulation is unnecessary. To the extent that the examples go beyond the statutory language, they are purely interpretive and are not subject to the notice and public procedure requirements of section 553(b).

The Department invites comments from interested persons on all aspects of the interim final rule, including whether, and to what extent, there are additional factual scenarios that should be added to the examples already in the interim final rule. To facilitate the receipt and processing of comments, EBSA encourages interested persons to submit their comments electronically by e-mail to e-ORI@dol.gov, or by using the Federal eRulemaking portal at http://www.regulations.gov (follow instructions for submission of comments). Persons submitting comments electronically are encouraged not to submit paper copies. Persons interested in submitting comments on paper should send or deliver their comments (preferably three copies) to: Office of Regulations and Interpretations, Employee Benefits Security Administration, Room N-5669, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210, Attention: QDRO Regulation. All comments will be available to the public, without charge, online at http://www.regulations.gov and http://www.dol.gov/ebsa, and at the Public Disclosure Room, Employee Benefits Security Administration, U.S. Department of Labor, Room N-1513, 200 Constitution Avenue, NW., Washington, DC, 20210.

Under Executive Order 12866 (58 FR 51735), the Department must determine whether a regulatory action is “significant” and therefore subject to review by the Office of Management and Budget (OMB). Section 3(f) of the Executive Order defines a “significant regulatory action” as an action that is likely to result in a rule (1) having an annual effect on the economy of $100 million or more, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities (also referred to as “economically significant”); (2) creating serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. The Department has determined that this regulatory action is not economically significant within the meaning of section 3(f)(1) the Executive Order. However, the Office of Management and Budget (OMB) has determined that the action is significant within the meaning of section 3(f)(4) of the Executive Order, and the Department accordingly provides the following assessment of its potential costs and benefits.

This interim final rule is intended to clarify the statutory requirements for QDROs under section 206(d)(3) of ERISA and section 414(p) of the Code. The provisions of section 206(d)(3) generally assist State authorities in deciding permissible ways in which pension benefits may be divided in domestic relations matters. The rules and processes under section 206(d)(3) make it possible for plan administrators to determine whether a State order seeking to assign pension benefits to an alternate payee should be given effect under the plan; clear rules concerning what constitutes a QDRO have the effect of assisting plan administrators in reviewing orders received by the plan, as well as participants and alternate payees in planning how to take pension assets into account when significant events require making a division of marital assets.

In directing the Department, in section 1001 of the Pension Protection Act, to clarify the application of the QDRO provisions, Congress expressed the view that existing uncertainty about the application of those provisions has caused difficulties meriting resolution through regulatory action. Uncertainty concerning the application of the QDRO provisions can impose litigation and other costs on plans, participants, and alternate payees, as well as on State domestic relations authorities, that will be reduced through the promulgation of this rule. Consistent with the view of Congress, the rule clarifies, first, that the sequence in which multiple orders may be issued does not in itself affect whether the orders are QDROs, and, second, that the time at which an order is issued does not, in itself, determine whether an order is or is not a QDRO. The rule further reiterates that an order must meet the specific requirements of sections 206(d)(3) of ERISA and section 414(p) of the Code.

By reducing uncertainty over the application of the statutory requirements in specific circumstances, the rule is expected to reduce costs that might otherwise arise from the necessity of resolving uncertainty in such circumstances. By providing clearer rules for plan administrators, the rule is also expected to increase the efficiency of plan administration. In addition, the Department is issuing this rule in direct response to a Congressional directive. As described above, section 1001 of the Pension Protection Act requires the Department to issue regulations clarifying that an order otherwise meeting the requirements of section 206(d)(3) of ERISA for a QDRO should not fail to be treated as a QDRO solely because it was issued after or revised another order, or because of the time at which it was issued. In issuing this interim final rule, therefore, the Department is fulfilling objectives expressly endorsed by Congress. Because the rule applies only in certain specific circumstances and affects only a small subset of domestic relations orders, the Department believes that its economic impact will be small, overall, but positive.

The rule is not anticipated to impose increased compliance costs, since it merely establishes the legal effect of certain sequences of events. Although it may cause some orders to be treated as QDROs that otherwise might be disputed (or fail to be treated as a QDRO), the rule provides certainty with respect to the circumstances it covers, which will aid State authorities seeking to divide pension benefits and assist plan administrators seeking to discharge their obligations under section 206(d)(3) of ERISA, without limiting the power of State authorities to determine the proper division of marital assets. The rule is expected generally to provide benefits to pension plans, plan participants and alternate payees, and State domestic relations authorities by increasing the clarity of the rules that apply to QDROs.

Based on the foregoing assessment, the Department concludes that promulgation of this interim final rule will provide substantial benefits without imposing major costs.

The interim final regulation being issued here is not subject to the requirements of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq. ) because it does not contain an “information collection” as defined in 44 U.S.C. 3502 (11).

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) (RFA) imposes certain requirements with respect to federal rules that are subject to the notice and comment requirements of section 553(b) of the Administrative Procedure Act (5 U.S.C 551 et seq. ) and that are likely to have a significant economic impact on a substantial number of small entities. Unless an agency certifies that a proposed rule will not have a significant economic impact on a substantial number of small entities, section 603 of the RFA requires that the agency present an initial regulatory flexibility analysis at the time of the publication of the notice of proposed rule-making describing the impact of the rule on small entities and seeking public comment on such impact. Because this rule is being issued as an interim final rule, the RFA does not apply and the Department is not required to either certify that the rule will not have a significant impact on a substantial number of small businesses or conduct an initial regulatory flexibility analysis. Nevertheless, the Department has considered the likely impact of the interim rule on small entities in connection with its assessment under Executive Order 12866, described above, and believes this rule will not have a significant impact on a substantial number of small entities. For purposes of this discussion, the Department deemed a small entity to be an employee benefit plan with fewer than 100 participants. The basis of this definition is found in section 104(a)(2) of ERISA, which permits the Secretary of Labor to prescribe simplified annual reports for pension plans which cover fewer than 100 participants. The Department invites comments on the effect of the interim final rule on small entities.

The interim final rule being issued here is subject to the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq. ) and will be transmitted to Congress and the Comptroller General for review. The interim final rule is not a “major rule” as that term is defined in 5 U.S.C. 804, because it does not result in (1) an annual effect on the economy of $100 million or more; (2) a major increase in costs or prices for consumers, individual industries, or federal, State, or local government agencies, or geographic regions; or (3) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.

For purposes of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), the interim final rule does not include any federal mandate that may result in expenditures by State, local, or tribal governments, or impose an annual burden exceeding $100 million on the private sector.

Executive Order 13132 (August 4, 1999) outlines fundamental principles of federalism and requires federal agencies to adhere to specific criteria in the process of their formulation and implementation of policies that have substantial direct effects on the States, the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. This interim final rule does not have federalism implications because it has no 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. Section 514 of ERISA provides, with certain exceptions specifically enumerated, that the provisions of titles I and IV of ERISA supersede any and all laws of the States as they relate to any employee benefit plan covered under ERISA. One exception described in section 514(b)(7) is for qualified domestic relations orders, as defined in section 206(d)(3) of ERISA. The interim rule does not alter the provisions of the statute, but merely clarifies the status of certain types of domestic relations orders under ERISA.

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

In addition to accessing an electronic copy of this Federal Register document through the electronic docket at http://www.regulations.gov , you may access this “ Federal Register ” document electronically through the EPA Internet under the “ Federal Register ” listings at http://www.epa.gov/fedrgstr . You may also access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's pilot e-CFR site at http://www.gpoaccess.gov/ecfr .

Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2006-0658 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before May 7, 2007.

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit your copies, identified by docket ID number EPA-HQ-OPP-2006-0658, by one of the following methods.

• Federal eRulemaking Portal : http://www.regulations.gov . Follow the on-line instructions for submitting comments.

• Mail : Office of Pesticide Programs (OPP) Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.

• Delivery : OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Drive, Arlington, VA. Deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket telephone number is (703) 305-5805.

In the Federal Register of December 20, 2006 (71 FR 76321) (FRL-8104-4), EPA issued a notice pursuant to section 408 of the FFDCA, 21 U.S.C. 346a, as amended by the FQPA (Public Law 104-170), announcing the filing of a pesticide petition (PP 6E7079) by BASF Corporation, 100 Campus Drive, Florham Park, NJ 07932. The petition requested that 40 CFR 180.960 be amended by establishing exemptions from the requirement of a tolerance for residues of polymer of 2-ethyl-2-(hydroxymethyl)-1,3-propanediol, oxirane, methyloxirane, 1,2-epoxyalkanes; CAS Reg. No. 903890-89-1 when 1,2-epoxyalkane is 1,2-epoxydodecane; CAS Reg. No. 903890-90-4 when 1,2-epoxyalkane is 1,2-epoxyhexadecane; and CAS Reg. No. 893427-80-0 when 1,2-epoxyalkane is 1,2-epoxyoctadecane. That notice included a summary of the petition prepared by the petitioner. There were no comments in response to the notice of filing.

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

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

EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be shown that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.

Consistent with section 408(b)(2)(D) of the FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. In the case of certain chemical substances that are defined as polymers, the Agency has established a set of criteria to identify categories of polymers that should present minimal or no risk. The definition of a polymer is given in 40 CFR 723.250(b). The following exclusion criteria for identifying these low risk polymers are described in 40 CFR 723.250(d).

1. The polymers are not cationic polymers nor are they reasonably anticipated to become a cationic polymers in a natural aquatic environment.

2. The polymers do contain as an integral part of its composition the atomic elements carbon, hydrogen, and oxygen.

3. The polymers do not contain as an integral part of its composition, except as impurities, any element other than those listed in 40 CFR 723.250(d)(2)(ii).

4. The polymers are neither designed nor can they be reasonably anticipated to substantially degrade, decompose, or depolymerize.

5. The polymers are manufactured or imported from monomers and/or reactants that are already included on the TSCA Chemical Substance Inventory or manufactured under an applicable TSCA section 5 exemption.

6. The polymers are not water absorbing polymers with a number average molecular weight (MW) greater than or equal to 10,000 daltons.

Additionally, the polymers, also meet as required the following exemption criteria specified in 40 CFR 723.250(e).

7. The polymers' number average MW of 16,000 to 20,000 are greater than or equal to 10,000 daltons. The polymers contain less than 2% oligomeric material below MW 500 and less than 5% oligomeric material below MW 1,000.

Thus, the polymer of 2-ethyl-2-(hydroxymethyl)-1,3 propanediol, oxirane, methyloxirane, 1,2-epoxyalkanes meets all the criteria for a polymers to be considered low risk under 40 CFR 723.250. Based on its conformance to the above criteria, no mammalian toxicity is anticipated from dietary, inhalation, or dermal exposure to polymer of 2-ethyl-2-(hydroxymethyl)-1,3 propanediol, oxirane, methyloxirane, 1,2-epoxyalkanes.

For the purposes of assessing potential exposure under this exemption, EPA considered that polymer of 2-ethyl-2-(hydroxymethyl)-1,3 propanediol, oxirane, methyloxirane, 1,2-epoxyalkanes could be present in all raw and processed agricultural commodities and drinking water, and that non-occupational non-dietary exposures were possible. The number average MW of polymer of 2-ethyl-2-(hydroxymethyl)-1,3 propanediol, oxirane, methyloxirane, 1,2-epoxyalkanes is in the range of 16,000 to 20,000 daltons. Generally, a polymer of this size would be poorly absorbed through the intact gastrointestinal tract or through intact human skin. Since polymer of 2-ethyl-2-(hydroxymethyl)-1,3 propanediol, oxirane, methyloxirane, 1,2-epoxyalkanes conforms to the criteria that identify a low risk polymer, there are no concerns for risks associated with any potential exposure scenarios that are reasonably foreseeable. The Agency has determined that a tolerance is not necessary to protect the public health.

Section 408 (b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance or tolerance exemption, the Agency consider “available information” concerning the cumulative effects of a particular chemical's residues and “other substances that have a common mechanism of toxicity.” EPA does not have, at this time, available data to determine whether polymer of 2-ethyl-2-(hydroxymethyl)-1,3 propanediol, oxirane, methyloxirane, 1,2-epoxyalkanes has a common mechanism of toxicity with other substances. Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to polymer of 2-ethyl-2-(hydroxymethyl)-1,3 propanediol, oxirane, methyloxirane, 1,2-epoxyalkanes and any other substances and polymer of 2-ethyl-2-(hydroxymethyl)-1,3 propanediol, oxirane, methyloxirane, 1,2-epoxyalkanes do not appear to produce toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that polymer of 2-ethyl-2-(hydroxymethyl)-1,3 propanediol, oxirane, methyloxirane, 1,2-epoxyalkanes have common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see the policy statements released by EPA's Office of Pesticide Programs concerning common mechanism determinations and procedures for cumulating effects from substances found to have a common mechanism on EPA's website at http://www.epa.gov/pesticides/cumulative .

Section 408 of the FFDCA provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base unless EPA concludes that a different margin of safety will be safe for infants and children. Due to the expected low toxicity of polymer of 2-ethyl-2-(hydroxymethyl)-1,3 propanediol, oxirane, methyloxirane, 1,2-epoxyalkanes, EPA has not used a safety factor analysis to assess the risk. For the same reasons the additional tenfold safety factor is unnecessary.

Based on the conformance to the criteria used to identify a low risk polymer, EPA concludes that there is a reasonable certainty of no harm to the U.S. population, including infants and children, from aggregate exposure to residues of polymer of 2-ethyl-2-(hydroxymethyl)-1,3 propanediol, oxirane, methyloxirane, 1,2-epoxyalkanes.

There is no available evidence that polymer of 2-ethyl-2-(hydroxymethyl)-1,3 propanediol, oxirane, methyloxirane, 1,2-epoxyalkanes are endocrine disruptors.

An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.

The Agency is not aware of any country requiring a tolerance for polymer of 2-ethyl-2-(hydroxymethyl)-1,3 propanediol, oxirane, methyloxirane, 1,2-epoxyalkanes nor have any CODEX Maximum Residue Levels (MRLs) been established for any food crops at this time.

Accordingly, EPA finds that exempting residues of polymer of 2-ethyl-2-(hydroxymethyl)-1,3 propanediol, oxirane, methyloxirane, 1,2-epoxyalkanes from the requirement of a tolerance will be safe.

This final rule establishes a tolerance under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866, this rule is not subject to Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq ., nor does it require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq .) do not apply.

This final rule directly regulates growers, food processors, food handlers and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000) do not apply to this rule. In addition, This rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note).

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

In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601-9675 (“CERCLA” or “the Act”), in response to the dangers of uncontrolled releases or threatened releases of hazardous substances, and releases or substantial threats of releases into the environment of any pollutant or contaminant that may present an imminent or substantial danger to the public health or welfare. CERCLA was amended on October 17, 1986, by the Superfund Amendments and Reauthorization Act (“SARA”), Public Law 99-499, 100 Stat. 1613 et seq.

To implement CERCLA, EPA promulgated the revised National Oil and Hazardous Substances Pollution Contingency Plan (“NCP”), 40 CFR part 300, on July 16, 1982 (47 FR 31180), pursuant to CERCLA section 105 and Executive Order 12316 (46 FR 42237, August 20, 1981). The NCP sets guidelines and procedures for responding to releases and threatened releases of hazardous substances, or releases or substantial threats of releases into the environment of any pollutant or contaminant that may present an imminent or substantial danger to the public health or welfare. EPA has revised the NCP on several occasions. The most recent comprehensive revision was on March 8, 1990 (55 FR 8666).

As required under section 105(a)(8)(A) of CERCLA, the NCP also includes “criteria for determining priorities among releases or threatened releases throughout the United States for the purpose of taking remedial action and, to the extent practicable, taking into account the potential urgency of such action, for the purpose of taking removal action.” “Removal” actions are defined broadly and include a wide range of actions taken to study, clean up, prevent or otherwise address releases and threatened releases of hazardous substances, pollutants or contaminants (42 U.S.C. 9601(23)).

The NPL is a list of national priorities among the known or threatened releases of hazardous substances, pollutants, or contaminants throughout the United States. The list, which is appendix B of the NCP (40 CFR part 300), was required under section 105(a)(8)(B) of CERCLA, as amended by SARA. Section 105(a)(8)(B) defines the NPL as a list of “releases” and the highest priority “facilities” and requires that the NPL be revised at least annually. The NPL is intended primarily to guide EPA in determining which sites warrant further investigation to assess the nature and extent of public health and environmental risks associated with a release of hazardous substances, pollutants or contaminants. The NPL is only of limited significance, however, as it does not assign liability to any party or to the owner of any specific property. Also, placing a site on the NPL does not mean that any remedial or removal action necessarily need be taken.

For purposes of listing, the NPL includes two sections, one of sites that are generally evaluated and cleaned up by EPA (the “General Superfund Section”), and one of sites that are owned or operated by other Federal agencies (the “Federal Facilities Section”). With respect to sites in the Federal Facilities Section, these sites are generally being addressed by other Federal agencies. Under Executive Order 12580 (52 FR 2923, January 29, 1987) and CERCLA section 120, each Federal agency is responsible for carrying out most response actions at facilities under its own jurisdiction, custody, or control, although EPA is responsible for preparing a Hazard Ranking System (HRS) score and determining whether the facility is placed on the NPL. EPA's role is less extensive than at other sites.

There are three mechanisms for placing sites on the NPL for possible remedial action (see 40 CFR 300.425(c) of the NCP): (1) A site may be included on the NPL if it scores sufficiently high on the Hazard Ranking System (“HRS”), which EPA promulgated as appendix A of the NCP (40 CFR part 300). The HRS serves as a screening tool to evaluate the relative potential of uncontrolled hazardous substances, pollutant or contaminants to pose a threat to human health or the environment. On December 14, 1990 (55 FR 51532), EPA promulgated revisions to the HRS partly in response to CERCLA section 105(c), added by SARA. The revised HRS evaluates four pathways: ground water, surface water, soil exposure, and air. As a matter of Agency policy, those sites that score 28.50 or greater on the HRS are eligible for the NPL; (2) Pursuant to 42 U.S.C 9605(a)(8)(B), each State may designate a single site as its top priority to be listed on the NPL, without any HRS score. This provision of CERCLA requires that, to the extent practicable, the NPL include one facility designated by each State as the greatest danger to public health, welfare, or the environment among known facilities in the State. This mechanism for listing is set out in the NCP at 40 CFR 300.425(c)(2); (3) The third mechanism for listing, included in the NCP at 40 CFR 300.425(c)(3), allows certain sites to be listed without any HRS score, if all of the following conditions are met:

• The Agency for Toxic Substances and Disease Registry (ATSDR) of the U.S. Public Health Service has issued a health advisory that recommends dissociation of individuals from the release.

• EPA determines that the release poses a significant threat to public health.

• EPA anticipates that it will be more cost-effective to use its remedial authority than to use its removal authority to respond to the release.

EPA promulgated an original NPL of 406 sites on September 8, 1983 (48 FR 40658) and generally has updated it at least annually.

A site may undergo remedial action financed by the Trust Fund established under CERCLA (commonly referred to as the “Superfund”) only after it is placed on the NPL, as provided in the NCP at 40 CFR 300.425(b)(1). (“Remedial actions” are those “consistent with permanent remedy, taken instead of or in addition to removal actions * * *.” 42 U.S.C. 9601(24).) However, under 40 CFR 300.425(b)(2) placing a site on the NPL “does not imply that monies will be expended.” EPA may pursue other appropriate authorities to respond to the releases, including enforcement action under CERCLA and other laws.

The NPL does not describe releases in precise geographical terms; it would be neither feasible nor consistent with the limited purpose of the NPL (to identify releases that are priorities for further evaluation), for it to do so. Indeed, the precise nature and extent of the site are typically not known at the time of listing.

Although a CERCLA “facility” is broadly defined to include any area where a hazardous substance release has “come to be located” (CERCLA section 101(9)), the listing process itself is not intended to define or reflect the boundaries of such facilities or releases. Of course, HRS data (if the HRS is used to list a site) upon which the NPL placement was based will, to some extent, describe the release(s) at issue. That is, the NPL site would include all releases evaluated as part of that HRS analysis.

When a site is listed, the approach generally used to describe the relevant release(s) is to delineate a geographical area (usually the area within an installation or plant boundaries) and identify the site by reference to that area. However, the NPL site is not necessarily coextensive with the boundaries of the installation or plant, and the boundaries of the installation or plant are not necessarily the “boundaries” of the site. Rather, the site consists of all contaminated areas within the area used to identify the site, as well as any other location where that contamination has come to be located, or from where that contamination came.

In other words, while geographic terms are often used to designate the site (e.g., the “Jones Co. plant site”) in terms of the property owned by a particular party, the site, properly understood, is not limited to that property (e.g., it may extend beyond the property due to contaminant migration), and conversely may not occupy the full extent of the property (e.g., where there are uncontaminated parts of the identified property, they may not be, strictly speaking, part of the “site”). The “site” is thus neither equal to, nor confined by, the boundaries of any specific property that may give the site its name, and the name itself should not be read to imply that this site is coextensive with the entire area within the property boundary of the installation or plant. In addition, the site name is merely used to help identify the geographic location of the contamination, and is not meant to constitute any determination of liability at a site. For example, the name “Jones Co. plant site,” does not imply that the Jones company is responsible for the contamination located on the plant site.

EPA regulations provide that the “nature and extent of the problem presented by the release” will be determined by a Remedial Investigation/Feasibility Study (RI/FS) as more information is developed on site contamination (40 CFR 300.5). During the RI/FS process, the release may be found to be larger or smaller than was originally thought, as more is learned about the source(s) and the migration of the contamination. However, the HRS inquiry focuses on an evaluation of the threat posed and therefore the boundaries of the release need not be exactly defined. Moreover, it generally is impossible to discover the full extent of where the contamination “has come to be located” before all necessary studies and remedial work are completed at a site. Indeed, the known boundaries of the contamination can be expected to change over time. Thus, in most cases, it may be impossible to describe the boundaries of a release with absolute certainty.

Further, as noted above, NPL listing does not assign liability to any party or to the owner of any specific property. Thus, if a party does not believe it is liable for releases on discrete parcels of property, it can submit supporting information to the Agency at any time after it receives notice it is a potentially responsible party.

For these reasons, the NPL need not be amended as further research reveals more information about the location of the contamination or release.

EPA may delete sites from the NPL where no further response is appropriate under Superfund, as explained in the NCP at 40 CFR 300.425(e). This section also provides that EPA shall consult with states on proposed deletions and shall consider whether any of the following criteria have been met:

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

(ii) All appropriate Superfund-financed response has been implemented and no further response action is required; or

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

In November 1995, EPA initiated a new policy to delete portions of NPL sites where cleanup is complete (60 FR 55465, November 1, 1995). Total site cleanup may take many years, while portions of the site may have been cleaned up and available for productive use.

EPA also has developed an NPL construction completion list (“CCL”) to simplify its system of categorizing sites and to better communicate the successful completion of cleanup activities (58 FR 12142, March 2, 1993). Inclusion of a site on the CCL has no legal significance.

Sites qualify for the CCL when: (1) Any necessary physical construction is complete, whether or not final cleanup levels or other requirements have been achieved; (2) EPA has determined that the response action should be limited to measures that do not involve construction ( e.g. , institutional controls); or (3) the site qualifies for deletion from the NPL. For the most up-to-date information on the CCL, see EPA's Internet site at http://www.epa.gov/superfund.

Yes, documents relating to the evaluation and scoring of the sites in this final rule are contained in dockets located both at EPA Headquarters and in the Regional offices.

An electronic version of the public docket is available through http://www.regulations.gov (see table below for Docket Identification numbers). Although not all Docket materials may be available electronically, you may still access any of the publicly available Docket materials through the Docket facilities identified below in section II D.

The Headquarters Docket for this rule contains, for each site, the HRS score sheets, the Documentation Record describing the information used to compute the score, pertinent information regarding statutory requirements or EPA listing policies that affect the site, and a list of documents referenced in the Documentation Record. For sites that received comments during the comment period, the Headquarters Docket also contains a Support Document that includes EPA's responses to comments.

The Regional Dockets contain all the information in the Headquarters Docket, plus the actual reference documents containing the data principally relied upon by EPA in calculating or evaluating the HRS score for the sites located in their Region. These reference documents are available only in the Regional Dockets. For sites that received comments during the comment period, the Regional Docket also contains a Support Document that includes EPA's responses to comments.

You may view the documents, by appointment only, after the publication of this rule. The hours of operation for the Headquarters Docket are from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. Please contact the Regional Dockets for hours.

Following is the contact information for the EPA Headquarters: Docket Coordinator, Headquarters; U.S. Environmental Protection Agency; CERCLA Docket Office; 1301 Constitution Avenue; EPA West, Room 3340, Washington, DC 20004, 202/566-1744.

The contact information for the Regional Dockets is as follows:

Joan Berggren, Region 1 (CT, ME, MA, NH, RI, VT), U.S. EPA, Superfund Records and Information Center, Mailcode HSC, One Congress Street, Suite 1100, Boston, MA 02114-2023; 617/918-1417.

Dennis Munhall, Region 2 (NJ, NY, PR, VI), U.S. EPA, 290 Broadway, New York, NY 10007-1866; 212/637-4343.

Dawn Shellenberger (ASRC), Region 3 (DE, DC, MD, PA, VA, WV), U.S. EPA, Library, 1650 Arch Street, Mailcode 3PM52, Philadelphia, PA 19103; 215/814-5364.

Debbie Jourdan, Region 4 (AL, FL, GA, KY, MS, NC, SC, TN), U.S. EPA, 61 Forsyth Street, SW, 9th floor, Atlanta, GA 30303; 404/562-8862.

Janet Pfundheller, Region 5 (IL, IN, MI, MN, OH, WI), U.S. EPA, Records Center, Superfund Division SRC-7J, Metcalfe Federal Building, 77 West Jackson Boulevard, Chicago, IL 60604; 312/353-5821.

Brenda Cook, Region 6 (AR, LA, NM, OK, TX), U.S. EPA, 1445 Ross Avenue, Mailcode 6SF-RA, Dallas, TX 75202-2733; 214/665-7436.

Michelle Quick, Region 7 (IA, KS, MO, NE), U.S. EPA, 901 North 5th Street, Kansas City, KS 66101; 913/551-7335.

Gwen Christiansen, Region 8 (CO, MT, ND, SD, UT, WY), U.S. EPA, 1595 Wynkoop Street, Mailcode 8EPR-B, Denver, CO 80202-1129; 303/312-6463.

Dawn Richmond, Region 9 (AZ, CA, HI, NV, AS, GU), U.S. EPA, 75 Hawthorne Street, San Francisco, CA 94105; 415/972-3097.

Ken Marcy, Region 10 (AK, ID, OR, WA), U.S. EPA, 1200 6th Avenue, Mail Stop ECL-115, Seattle, WA 98101; 206/553-2782.

You may obtain a current list of NPL sites via the Internet at http://www.epa.gov/superfund/ (look under the Superfund sites category) or by contacting the Superfund Docket (see contact information above).

This final rule adds the following five sites to the NPL, all to the General Superfund Section:

EPA reviewed all comments received on the sites in this rule and responses to comments are below.

EPA received comments from the Mayor of Leon Valley, Texas on behalf of the City Council. The comment letter included a Leon Valley City Council resolution requesting that the Bandera Road Ground Water Plume be added to the NPL in order to remediate the community's water contamination. For the reasons set forth in the Administrative Record for the site, EPA is adding this site to the NPL.

For the remainder of sites in this rule, EPA received no comments, therefore, EPA is placing them on the NPL at this time. All comments that were received by EPA are contained in the Headquarters Docket and are also listed in EPA's electronic public Docket and comment system at http://www.regulations.gov .

Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the Agency must determine whether a regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

No. The listing of sites on the NPL does not impose any obligations on any entities. The listing does not set standards or a regulatory regime and imposes no liability or costs. Any liability under CERCLA exists irrespective of whether a site is listed. It has been determined that this action is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to OMB review.

According to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. , an agency may not conduct or sponsor, and a person is not required to respond to a collection of information that requires OMB approval under the PRA, unless it has been approved by OMB and displays a currently valid OMB control number. The OMB control numbers for EPA's regulations, after initial display in the preamble of the final rules, are listed in 40 CFR part 9.

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. EPA has determined that the PRA does not apply because this rule does not contain any information collection requirements that require approval of the OMB.

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq. , as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996) whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small governmental jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities.

This rule listing sites on the NPL does not impose any obligations on any group, including small entities. This rule also does not establish standards or requirements that any small entity must meet, and imposes no direct costs on any small entity. Whether an entity, small or otherwise, is liable for response costs for a release of hazardous substances depends on whether that entity is liable under CERCLA 107(a). Any such liability exists regardless of whether the site is listed on the NPL through this rulemaking. Thus, this rule does not impose any requirements on any small entities. For the foregoing reasons, I certify 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 (UMRA), Public Law 104-4, establishes requirements for Federal Agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. Before EPA promulgates a rule where a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

No, EPA has determined that this rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments in the aggregate, or by the private sector in any one year. This rule will not impose any federal intergovernmental mandate because it imposes no enforceable duty upon State, tribal or local governments. Listing a site on the NPL does not itself impose any costs. Listing does not mean that EPA necessarily will undertake remedial action. Nor does listing require any action by a private party or determine liability for response costs. Costs that arise out of site responses result from site-specific decisions regarding what actions to take, not directly from the act of listing a site on the NPL.

For the same reasons, EPA also has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. In addition, as discussed above, the private sector is not expected to incur costs exceeding $100 million. EPA has fulfilled the requirement for analysis under the Unfunded Mandates Reform Act.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

Under section 6 of Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law, unless the Agency consults with State and local officials early in the process of developing the proposed regulation. This final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”

This final rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this final rule.

Executive Order 13045: “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that: (1) is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

This rule is not subject to Executive Order 13045 because it is not an economically significant rule as defined by Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this section present a disproportionate risk to children.

This rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

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

No. This rulemaking does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.

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, that includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA has submitted 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 rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Provisions of the Congressional Review Act (CRA) or section 305 of CERCLA may alter the effective date of this regulation.

Under the CRA, 5 U.S.C. 801(a), before a rule can take effect the federal agency promulgating the rule must submit a report to each House of the Congress and to the Comptroller General. This report must contain a copy of the rule, a concise general statement relating to the rule (including whether it is a major rule), a copy of the cost-benefit analysis of the rule (if any), the agency's actions relevant to provisions of the Regulatory Flexibility Act (affecting small businesses) and the Unfunded Mandates Reform Act of 1995 (describing unfunded federal requirements imposed on state and local governments and the private sector), and any other relevant information or requirements and any relevant Executive Orders.

EPA has submitted a report under the CRA for this rule. The rule will take effect, as provided by law, within 30 days of publication of this document, since it is not a major rule. Section 804(2) defines a major rule as any rule that the Administrator of the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB) finds has resulted in or is likely to result in: an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. NPL listing is not a major rule because, as explained above, the listing, itself, imposes no monetary costs on any person. It establishes no enforceable duties, does not establish that EPA necessarily will undertake remedial action, nor does it require any action by any party or determine its liability for site response costs. Costs that arise out of site responses result from site-by-site decisions about what actions to take, not directly from the act of listing itself. Section 801(a)(3) provides for a delay in the effective date of major rules after this report is submitted.

Under 5 U.S.C. 801(b)(1) a rule shall not take effect, or continue in effect, if Congress enacts (and the President signs) a joint resolution of disapproval, described under section 802.

Another statutory provision that may affect this rule is CERCLA section 305, which provides for a legislative veto of regulations promulgated under CERCLA. Although INS v. Chadha , 462 U.S. 919,103 S. Ct. 2764 (1983) and Bd. of Regents of the University of Washington v. EPA , 86 F.3d 1214,1222 (D.C. Cir. 1996) cast the validity of the legislative veto into question, EPA has transmitted a copy of this regulation to the Secretary of the Senate and the Clerk of the House of Representatives.

If action by Congress under either the CRA or CERCLA section 305 calls the effective date of this regulation into question, EPA will publish a document of clarification in the Federal Register .

A proposed rule was published in the Federal Register on September 12, 2006 (71 FR 53646) soliciting comments on proposed changes to 41 CFR part 102-35. The due date for comments was extended in a Federal Register proposed rule document on October 18, 2006 (71 FR 61445). Comments were received from three respondents relating to the sale of personal property. These comments do not directly address any provisions contained in this final rule, and will be held for consideration when the regulation covering the sale of Federal personal property assets, Federal Management Regulation (FMR) part 102-38, is released for comment. FMR part 102-38 is currently being reviewed within GSA for revisions.

This final rule adds a new part, 102-35, to subchapter B of the FMR to provide an overview of the property disposal regulation and to provide definitions for terms found in FMR parts 102-36 through 102-42 (41 CFR 102-36 through 102-42). This part serves as a summary and overview of the policies relating to the disposal of Federal personal property and provides overall guidance for all methods of property disposal.

This part emphasizes the use of excess property from other agencies as the first source of supply, and establishes the preference to transfer excess property to Federal agencies for their own use before transferring that property to agencies for use by non-Federal entities.

This regulation is excepted from the definition of “regulation” or “rule” under Section 3(d)(3) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993 and, therefore, was not subject to review under Section 6(b) of that Executive Order.

This final rule is not required to be published in the Federal Register for notice and comment as per the exemption specified in 5 U.S.C. 553(a)(2); therefore, the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. , does not apply.

The Paperwork Reduction Act does not apply because the final rule does not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors, or members of the public which require the approval of the Office of Management and Budget (OMB) under 44 U.S.C. 3501 et seq.

This final rule is exempt from Congressional review prescribed under 5 U.S.C. 801 since it relates solely to agency management and personnel.

On October 11, 2006, FRA proposed to amend its Rules of Practice (49 CFR Part 211) to adopt direct final rulemaking procedures which would expedite its rulemaking process for noncontroversial regulatory changes to which no adverse comment was anticipated (71 FR 59698). The proposed direct final rulemaking procedures, closely modeled upon those of the Office of the Secretary of Transportation (OST) (January 30, 2004, 69 FR 4455), would allow FRA to reduce the time necessary to develop, review, clear and publish routine rules to which no adverse public comment was anticipated by eliminating the requirement to publish separate proposed and final rules. FRA received no comments to the proposal, and in this rule adopts its proposed direct final rulemaking procedures without change.

Other agencies, such as the Nuclear Regulatory Commission, the Food and Drug Administration, the Environmental Protection Agency, the Department of Agriculture, and the Department of Energy (DOE) have adopted and successfully used direct final rulemaking procedures for routine changes. The DOE, for example, amended its test procedures for measuring the energy consumption of clothes washers through a direct final rule (October 31, 2003, 68 FR 62197).

As mentioned above, proceeding through a direct final rulemaking enables FRA to eliminate an unnecessary second round of internal review and clearance, as well as public review, for noncontroversial proposed rules. As proposed, FRA may use direct final rulemaking for noncontroversial rules, including those that:

(1) Affect internal procedures of the Federal Railroad Administration, such as filing requirements and rules governing inspection and copying of documents,

(2) Are nonsubstantive clarifications or corrections to existing rules;

(3) Update existing forms; and

(4) Make minor changes in substantive rules regarding statistics and reporting requirements, such as a lessening of the reporting frequency (for example, from monthly to quarterly) or elimination of a type of data that FRA no longer needs to collect.

FRA may also use direct final rulemaking process for a particular rule if similar rules had been previously proposed and published without adverse comment.

If FRA determines that a rule is appropriate for direct final rulemaking, FRA will publish the rule in the final rule section of the Federal Register . In a direct final rule document, the “action” will be captioned “direct final rule” and will include language in the summary and preamble informing interested parties of their right to comment and their right to request an oral hearing, if such opportunity is required. The direct final rule notice will advise the public that FRA anticipates no adverse comment to the rule and that the rule will become effective a specified number of days after the date of publication unless FRA receives written adverse comment or a request for an oral hearing (if such opportunity is required by statute) within the specified comment period. An “adverse” comment is one that is critical of the rule, suggests that the rule should not be adopted, or suggests that a change should be made in the rule. FRA will not consider a comment submitted in support of the rule, or a request for clarification of the rule, to be adverse. FRA will provide sufficient comment time to allow interested parties to determine whether they wish or need to submit adverse comments, and will answer any requests for clarification while the comment period is running. If FRA receives no written adverse comment or request for oral hearing within the comment period, FRA will publish another notice in the Federal Register indicating that no adverse comment has been received and confirming that the rule will become effective on the specified date.

If, however, FRA receives the timely submission of an adverse comment or notice of intent to submit adverse comment, FRA will stop the direct final rulemaking process and withdraw the direct final rule by publishing a notice in the final rule section of the Federal Register . If FRA decides that the rulemaking remains necessary, FRA will recommence the rulemaking under its standard rulemaking procedures by publishing a notice proposing the rule in the proposed rules section of the Federal Register . The proposed rule will provide for a new public comment period.

The additional time and effort required to withdraw the direct final rule and issue a Notice of Proposed Rulemaking will be an incentive for FRA to act conservatively in evaluating whether to use the direct final rulemaking process for a particular rule. FRA will not use direct final rulemaking for complex or potentially controversial matters.

FRA has determined that this action is not a significant regulatory action under Executive Order 12866 or under the Department's Regulatory Policies and Procedures. There are no costs associated with the proposed rule. There will be some cost savings in Federal Register publication costs and efficiencies for the public and FRA personnel in eliminating duplicative reviews. FRA certifies that this rule will not have a significant impact on a substantial number of small entities. FRA does not believe there are sufficient federalism implications to warrant the preparation of a federalism assessment. Because this rule does not have tribal implications and does not impose direct compliance costs, the funding and consultation requirements of Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”) do not apply.

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

FRA has determined that the requirements of Title II of the Unfunded Mandates Reform Act of 1995 do not apply to this rulemaking.

The final rule to implement Amendment 18A to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (Amendment 18A) (71 FR 45428, August 9, 2006) included a provision, § 622.9(a)(2), requiring owners or operators of a vessel with a commercial vessel permit for Gulf reef fish, including charter/headboats with commercial reef fish vessel permits even when under charter, to be equipped with an operating VMS approved by NMFS for the Gulf of Mexico reef fish fishery. Additionally, § 622.4(m)(1) required proof of purchase, installation, activation, and operational status of an approved VMS for renewal or transfer of a commercial vessel permit for Gulf reef fish.

Subsequent to the publication of the final rule, NMFS published a notice listing VMS approved by NMFS for use in the Gulf reef fish fishery (71 FR 54472, September 15, 2006). On October 31, 2006, NMFS published a notice (71 FR 63753), announcing availability of grant funds to reimburse owners and operators of vessels subject to the VMS requirements of Amendment 18A for the equivalent cost of purchasing the least expensive VMS approved by NMFS for the Gulf reef fish fishery. On December 6, 2006, because of concerns that fishers would not have sufficient time to comply with the VMS requirements, NMFS published a notice (71 FR 70680) to delay the effective date of § 622.9(a)(2), the VMS requirement, and § 622.4(m)(1), the provision requiring VMS as a condition of renewing or transferring a commercial vessel permit for Gulf reef fish.

NMFS is further delaying, until May 6, 2007, the effective date of § 622.9(a)(2), the VMS requirement, and § 622.4(m)(1), the provision requiring VMS as a condition of renewing or transferring a commercial vessel permit for Gulf reef fish. NMFS recently learned, and has confirmed with the VMS vendor, that there is a technological problem with one of the approved VMS units that has been purchased by a significant portion of the commercial reef fish fleet. This VMS unit, as currently configured, has an excessive power draw. When the vessel is not under power or does not have access to an external power source for longer than about 48 hours, the power draw from this VMS unit can drain all battery power, resulting in failure of electronic equipment including such safety equipment as bilge pumps. The vendor is working with vessel owners to resolve this issue through a reconfiguration of the VMS installation. NMFS has determined that a 60-day delay in implementation of the VMS requirements should be sufficient to resolve this issue. NMFS has also confirmed that providers of approved VMS units have a substantial backlog of orders for approved VMS units. It would not be possible for all affected fishers to acquire, install, and activate the required VMS units prior to the current March 7, 2007 deadline. Therefore, for these reasons, NMFS is delaying the effective date of §§ 622.9(a)(2) and 622.4(m)(1) until May 6, 2007.

The Administrator, Southeast Region, NMFS, (RA) has determined that delaying the effective date of VMS requirements for vessels with commercial vessel permits for Gulf reef fish is necessary for management of the fishery and to minimize adverse social and economic impacts. The RA has also determined that this rule is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

Pursuant to 5 U.S.C. 533(b)(B), there is good cause to waive prior notice and opportunity for public comment on this action as notice and comment would be impracticable and contrary to the public interest. This final rule merely delays the effective date of the VMS requirements and VMS-related permit renewal requirements set forth in the regulations implementing Amendment 18A. Delaying the effective date of these provisions will provide VMS vendors time to resolve a technological problem with one of the approved VMS units that could potentially affect vessel safety. The delay would also provide vendors additional time to meet the demand for delivery and installation of approved units, which NMFS has confirmed is currently backlogged. For these reasons, there is good cause to waive the 30-day delayed effectiveness provision of the APA for these measures pursuant to 5 U.S.C. 553(d)(3). Failure to waive prior notice and opportunity for public comment or failure to waive the 30-day delayed effectiveness provision of the APA for these measures would result in these measures becoming effective on March 7, 2007, rather than providing the additional time necessary to resolve these unanticipated issues.

This final rule is exempt from the procedures of the Regulatory Flexibility Act because the rule is issued without opportunity for prior notice and opportunity for public comment.

This rule refers to collection-of-information requirements subject to the Paperwork Reduction Act (PRA) and which have been approved by OMB under Control Number 0648-0544. Public reporting for these requirements is estimated to average 4 hours for VMS installation, 15 minutes for completion and submission of certification of VMS installation and activation, 24 seconds for transmission of position reports, 2 hours for annual maintenance of VMS, 10 minutes for submission of requests for power-down exemptions, and 15 minutes for annual renewal of all permits. These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding these burden estimates or any other aspect of this data collection, including suggestions for reducing burden hours, to NMFS (see ADDRESSES ) and by email to David_Rostker@omb.eop.gov , or fax to 202-395-7285.

Notwithstanding any other provision of law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.

The fishery for coastal migratory pelagic fish (king mackerel, Spanish mackerel, cero, cobia, little tunny, and, in the Gulf of Mexico only, dolphin and bluefish) is managed under the Fishery Management Plan for the Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic (FMP). The FMP was prepared by the Gulf of Mexico and South Atlantic Fishery Management Councils (Councils) and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

On April 27, 2000, NMFS implemented the final rule (65 FR 16336, March 28, 2000) that divided the Florida west coast subzone of the eastern zone into northern and southern subzones, and established their separate quotas. The quota for the hook-and-line fishery in the southern Florida west coast subzone is 520,312 lb (236,010 kg)(50 CFR 622.42(c)(1)(i)(A)( 2 )( i )).

In accordance with 50 CFR 622.44(a)(2)(ii)(B)( 2 ), from the date that 75 percent of the southern Florida west coast subzone's quota has been harvested until a closure of the subzone's fishery has been effected or the fishing year ends, king mackerel in or from the EEZ may be possessed on board or landed from a permitted vessel in amounts not exceeding 500 lb (227 kg) per day.

NMFS has determined that 75 percent of the quota for Gulf group king mackerel from the southern Florida west coast subzone has been reached. Accordingly, a 500-lb (227-kg) trip limit applies to vessels in the commercial fishery for king mackerel in or from the EEZ in the southern Florida west coast subzone effective 12:01 a.m., local time, March 3, 2007. The 500-lb (227-kg) trip limit will remain in effect until the fishery closes or until the end of the current fishing year (June 30, 2007), whichever occurs first.

The Florida west coast subzone is that part of the eastern zone located south and west of 25°20.4′ N. lat. (a line directly east from the Miami-Dade County, Florida, boundary) along the west coast of Florida to 87°31.067prime; W. long. (a line directly south from the Alabama/Florida boundary). The Florida west coast subzone is divided into northern and southern subzones. From November 1 through March 31, the southern subzone is designated as the area extending south and west from 25°20.4′ N. lat. to 26°19.8′ N. lat. (a line directly west from the Lee/Collier County, Florida, boundary), i.e., the area off Collier and Monroe Counties. Based on the current total allowable catch and the allocation ratios, the quota for the southern Florida west coast subzone is 1,040,625 lb (472,020 kg). The subzone's quota is further divided into two equal 520,312-lb (236,010-kg) quotas for vessels fishing with either run-around gillnets or hook-and-line gear.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(3)(B) as such prior notice and opportunity for public comment is unnecessary and contrary to the public interest. Such procedures would be unnecessary because the rule itself already has been subject to notice and comment, and all that remains is to notify the public of the closure. Allowing prior notice and opportunity for public comment is contrary to the public interest because of the need to immediately implement this action in order to protect the fishery since the capacity of the fishing fleet allows for rapid harvest of the quota. Prior notice and opportunity for public comment will require time and would potentially result in a harvest well in excess of the established quota. For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).

This action is taken under 50 CFR 622.43(a) and is exempt from review under Executive Order 12866.

The final rule published on February 26, 2007 (72 FR 8289) and effective March 28, 2007, removes the 7-day delay in effectiveness when closing the Hawaii-based shallow-set longline fishery as a result of reaching interaction limits for sea turtles. It allows for an immediate closure of the fishery to enhance protection of sea turtles.

The amendatory instructions that are the subject of this correction refer to § 665.22 and § 665.33 in the CFR. The amendatory instructions in the published final rule (72 FR 8289) were written to amend CFR text that is effective only through March 19, 2007. This correction makes two changes to the amendatory instructions to accurately reflect effective CFR parts as of March 28, 2007. In the amendatory instruction for § 665.22, “revise” is replaced with “add”. This change is necessary to insert revisions of paragraphs (ss) and (tt) that were effective through March 19, 2007. In amendatory instruction for § 665.33, the phrase, “remove paragraphs (b)(2)(iii) and (iv)”, is removed, since the subject paragraphs will no longer be effective on March 28, 2007.