The U.S. Office of Personnel Management is issuing an interim rule suspending the requirement set forth in 5 CFR 930.204(b) that requires incumbent administrative law judges (“ALJs”) to “possess a professional license to practice law and be authorized to practice law.” This provision requires ALJs to maintain “active status,” (or “judicial status” in States that prohibit sitting judges from maintaining “active status” to practice law), or to be in “good standing” where the licensing authority considers “good standing” as having a current license to practice law. This licensure requirement set forth in section 930.204(b) henceforth will not apply to incumbent administrative law judges.

ALJ applicants are unaffected by this suspension, and the requirement that applicants possess a professional license to practice law and be authorized to practice law continues to apply. We remain convinced that active licensure at the time of application and appointment is vital as an indicator that the applicant presenting him or herself for assessment and possible appointment has been subject to rigorous ethical requirements right up to the point of appointment. We have reconsidered comments received during the notice and comment period, however, about the burdens imposed by the active licensure requirement, as it applies to incumbents, the potential differences between the ethical requirements that pertain to an advocate and those requirements that pertain to someone asked to adjudicate cases impartially, and the variations in what States require as to lawyers serving as ALJs. We intend once again to solicit comments on this point in a new rulemaking. In the interim, we seek to prevent any adverse impact on incumbents while we engage in this process by suspending the current requirement as to incumbents.

Pursuant to 5 U.S.C. 553 (d)(1), we deem it appropriate to waive the 30-day waiting period and make this regulation effective immediately because this is “a substantive rule which grants or recognizes an exemption or relieves a restriction” set forth in the regulation that is being revised. Further, pursuant to 5 U.S.C. 553(b) (B) and (d)(3), we find that good cause exists to waive the general notice of proposed rulemaking. Because we understand that some incumbents have raised concerns that coming into compliance with bar requirements in section 930.204(b) or continuing legal education requirements of bar membership will impose a burden or hardship on them, we are suspending the requirement in order to alleviate those concerns while we consider its efficacy, as well as comments addressing whether active bar status is necessary to ensure good conduct among incumbent administrative law judges.

This interim rule has been reviewed by the Office of Management and Budget in accordance with Executive Order 12866.

I certify that these regulations would not have a significant economic impact on a substantial number of small entities (including small businesses, small organizational units, and small governmental jurisdictions) because they would affect only some Federal agencies and employees.

Regulation CC establishes the maximum period a depositary bank may wait between receiving a deposit and making the deposited funds available for withdrawal. 1 A depositary bank generally must provide faster availability for funds deposited by a “local check” than by a “nonlocal check.” A check is considered local if it is payable by or at or through a bank located in the same Federal Reserve check-processing region as the depositary bank.

Appendix A to Regulation CC contains a routing number guide that assists banks in identifying local and nonlocal banks and thereby determining the maximum permissible hold periods for most deposited checks. The appendix includes a list of each Federal Reserve check-processing office and the first four digits of the routing number, known as the Federal Reserve routing symbol, of each bank that is served by that office for check-processing purposes. Banks whose Federal Reserve routing symbols are grouped under the same office are in the same check-processing region and thus are local to one another.

On September 20, 2008, the Reserve Banks will transfer the check-processing operations of the Windsor Locks office of the Federal Reserve Bank of Boston to the head office of the Federal Reserve Bank of Philadelphia. As a result of this change, some checks that are drawn on and deposited at banks located in the Windsor Locks and Philadelphia check-processing regions and that currently are nonlocal checks will become local checks subject to faster availability schedules. To assist banks in identifying local and nonlocal checks and making funds availability decisions, the Board is amending the lists of routing symbols in appendix A associated with the Federal Reserve Banks of Boston and Philadelphia to reflect the transfer of check-processing operations from the Windsor Locks office of the Federal Reserve Bank of Boston to the head office of the Federal Reserve Bank of Philadelphia. To coincide with the effective date of the underlying check-processing changes, the amendments to appendix A are effective September 20, 2008. The Board is providing notice of the amendments at this time to give affected banks ample time to make any needed processing changes. Early notice also will enable affected banks to amend their availability schedules and related disclosures if necessary and provide their customers with notice of these changes. 2

The Board has not followed the provisions of 5 U.S.C. 553(b) relating to notice and public participation in connection with the adoption of the final rule. The revisions to appendix A are technical in nature and are required by the statutory and regulatory definitions of “check-processing region.” Because there is no substantive change on which to seek public input, the Board has determined that the § 553(b) notice and comment procedures are unnecessary. In addition, the underlying consolidation of Federal Reserve Bank check-processing offices involves a matter relating to agency management, which is exempt from notice and comment procedures.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3506; 5 CFR 1320 Appendix A.1), the Board has reviewed the final rule under authority delegated to the Board by the Office of Management and Budget. The technical amendment to appendix A of Regulation CC will delete the reference to the Windsor Locks office of the Federal Reserve Bank of Boston and reassign the routing symbols listed under that office to the head office of the Federal Reserve Bank of Philadelphia. The depository institutions that are located in the affected check-processing regions and that include the routing numbers in their disclosure statements would be required to notify customers of the resulting change in availability under § 229.18(e). However, all paperwork collection procedures associated with Regulation CC already are in place, and the Board accordingly anticipates that no additional burden will be imposed as a result of this rulemaking.

On December 6, 2005, SBA increased by 8.7% most of its monetary-based small business size standards ( e.g. , receipts, net income, net worth, and financial assets) for the effects of inflation that had occurred since the time of the previous adjustment in February 2002 (70 FR 72577). Since then, the U.S. economy has experienced additional inflation, due in part to significant increases in the price of crude oil. Because of the rapid rate of increasing inflation and the important policy objective of maintaining the value of size standards in inflation-adjusted terms, SBA is further adjusting the size standards implemented in the 2005 interim final rule. In all, this rule increases size standards since February 2002 by 18.2 percent, that is, by an additional 8.7 percent over the 8.7 percent increase in the 2005 interim final rule (1.087 × 1.087 = 1.182, or 18.2 percent). This additional increase ensures that size standards are up-to-date for determining small business status and restores the eligibility of businesses that may have lost their small business status due solely to price level increases rather than from increases in business activity.

The December 6, 2005 interim final rule increased SBA's most common size standard for the retail trade and services industries (referred to as the “nonmanufacturer anchor size standard”) from $6.0 million in average annual receipts to $6.5 million. This rule further increases the nonmanufacturer anchor size standard to $7.0 million. This rule also increases other monetary-based size standards proportionately. For example, the interim final rule increased the size standard for Computer Systems Design Services (NAICS 541512) from $21 million to $23 million. This rule increases that industry's size standard to $25.0 million.

The revisions adopted by this final rule demonstrate that SBA must stay abreast of changes in the economy to ensure that size standards are established at appropriate levels. To meet that objective, SBA is conducting a comprehensive review of all of its small business size standards over a 2-year period. This review will consist of a series of proposed rules beginning in 2008 examining industries within a specific NAICS Industry Sector. SBA expects that, as a result of this comprehensive review, it will propose in the future additional revisions to certain size standards based on its evaluation of industry data.

For purposes of this final rule, SBA uses the same methodology as used in the 2005 interim final rule, but applies the most current inflation statistics available. The methodology is described below:

1. Select a measure of inflation. SBA uses the chain-type price index for the Gross Domestic Product (GDP), a broad measure of inflation for the economy as a whole. The U.S. Department of Commerce, Bureau of Economic Analysis (BEA), publishes this index quarterly in its National Income and Product Accounts publications (Table 1.1.4, Line 1).

2. Select base period. For this rule, SBA selects the third quarter of 2001 as the base period—the end period used for the February 2002 adjustment. Since this is a final rule to the interim final rule, it is more accurate to use the same starting period as for the December 2005 adjustment than the end period of the interim final rule in order to make correct rounding adjustments. The chain-type price index for the GDP for the third quarter of 2001 was 102.690.

3. Select end period. SBA selects the first quarter of 2008 as the end period for this inflation adjustment because it is the latest available quarterly data that BEA has published. The chain type price index for GDP then stood at 121.363.

4. Calculate the total rate of inflation. Based on the price indexes, inflation increased 18.2 percent from the base to the end per iods ((121.363 ÷ 102.690) − 1.00) × 100 percent = 18.2 percent).

5. Apply the adjustment to the monetary-based size standards. Multiply the size standards in effect prior to the interim final rule by 1.182, and round to the closest $0.5 million.

1. Small Business Investment Company (SBIC) Program: Certain monetary-based size standards are not changed in this rule. Specifically, the size standards for agricultural industries and for “smaller enterprises” under the SBIC Program are set by statute and, therefore, cannot be changed through rulemaking. As with the 2005 interim final rule, SBA has elected not to change the SBIC Program's small business alternate net worth and net income size standards. SBA increased the alternate net worth and net income size standards for the SBIC Program in 1994 threefold. Although inflation has increased since that time, SBA continues to believe that the SBIC size standard levels are sufficient to accomplish its program objectives. SBA received no comments on these size standards. Therefore, SBA is allowing the existing size standards to remain in place for the SBIC Program because no further increase is necessary at this time.

2. Size Standards Adjusted Between 2002-2005: As stated in the 2005 interim final rule, the Agency has changed a number of monetary-based size standards since the February 2002 inflation adjustment as a result of an in-depth review of industry characteristics. SBA is applying the full inflation adjustment percent to those monetary-based size standards as well. When SBA establishes or revises a size standard, it does so in relation to other existing size standards to ensure that industries with similar characteristics have similar size standards. To provide a smaller inflation adjustment due to the shorter time period for the calculation, while technically precise, would be inconsistent with the size standards decision-making process, and would in essence nullify part of the industry specific adjustments made between 2002-2005 period.

3. Size Standards Adjusted After 2005: Since the time of the interim final rule SBA revised the size standard for the Security Guards and Patrol Services industry (NAICS 561612) from $11.5 million in average annual receipts to $17 million. This revision was based on an in-depth review of the economic characteristics of businesses in that industry (71 FR 37490, June 30, 2006). SBA had proposed $15.5 million (70 FR 68368, November 10, 2005), but adjusted the proposed size standard in the June 30, 2006, final rule to account for the December 6, 2005, inflation adjustment. As with that final rule, this inflation final rule will adjust the Security Guards and Patrol Services industry size standard to account for the additional inflation. Applying 18.2 percent inflation to the $15.5 million size standard proposed in 2005 results in a new size standard of $18.5 million ($15,500,000 x 1.182 = $18,321,000, rounded to the nearest $500,000 increment, or $18,500,000).

4. Program-Based Size Standards: Most SBA programs apply size standards established for industries defined by the North American Industry Classification System (NAICS). SBA has also established size standards on a program basis rather than an industry basis. These size standards are adjusted in the same manner as the industry-based size standards (except for the SBIC Program as discussed above). Table 1 lists the program-based size standards and the changes adopted by this rule.

The December 6, 2005, interim final rule requested comments from the public, and SBA received 11 comments. Two of the commenters discussed issues unrelated to increasing size standards for inflation. The other nine commenters supported the increase.

Three commenters, while they supported the increase, also indicated that the increase was not sufficient for a number of industries. One suggested that SBA use a different inflation index instead of the chain type price index for GDP. The commenter believes that this price index understates inflation. Alternatively, the commenter recommended that SBA increase size standards based on the degree to which employee compensation has increased. The two other commenters also contended that other factors, such as health benefit costs and costs unique to the waste collection industry, have caused their industries to experience higher rates of inflation than measured by the chain type price index for GDP.

SBA recognizes that inflation may not affect every industry equally at the same time. SBA's small business size standards apply to a wide variety of Federal Government programs and to businesses engaged in multiple industries. Therefore, SBA must use a broad measure of inflation for the entire U.S. economy to determine the most appropriate rate of inflation by which to adjust all of its monetary-based size standards.

Over the past several years, Federal statistical agencies, such as the U.S. Bureau of Labor Statistics, have developed new price indexes that may be more suitable for adjusting size standards for industries with monetary-based size standard. SBA will give consideration to the viability of those alternative inflation indexes in the future.

SBA also believes that industry specific circumstances should be evaluated through an in-depth industry review. As mentioned above, SBA is conducting a comprehensive size standards review over the next 2 years. In doing so, above average inflationary pressures within an industry are likely to be captured. As in previous size standards adjustments, the public will have an opportunity to comment and provide SBA with probative data demonstrating the need for an additional adjustment.

SBA is adopting, without change, the revised two-step process for determining small business eligibility under its Business Loan and EIDL Programs established in the interim final rule. This provision determines size eligibility by the following steps:

1. Determine the primary industry and size of the applicant alone ( i.e. , without affiliates).

a. If the applicant alone does not meet the size standard for its industry, it is ineligible.

b. If the applicant alone meets the size standard for its industry, and if it has affiliates, then this triggers the second step.

2. Determine the primary industry and size of the applicant and all of its affiliates. If the applicant, together with its affiliates, does not exceed either (1) the size standard for the applicant's primary industry or (2) the size standard for the primary industry of the applicant and its affiliates combined, whichever is the higher, the applicant is eligible.

SBA's experience with the two-step process for the financial related programs has demonstrated that it remedies the problems encountered with the previous regulation of determining small business eligibility by applying only the size standard applicable to the primary industry of the applicant. Furthermore, SBA received no public comments opposing this change or recommending a different approach.

SBA is also adopting as final the revision of the 2005 interim final rule pertaining to the date when size status is determined for purposes of EIDL applications submitted by businesses located in disaster areas declared as a result of Hurricanes Katrina, Rita, and Wilma (2005 Hurricanes). Current regulations at 13 CFR § 123.300(b) require an applicant for an EIDL loan to be small as of the date the disaster commenced, as set forth in the disaster declaration. For purposes of EIDL applications in response to the 2005 Hurricanes, however, SBA had changed the date on which SBA determines size status of those businesses to “the date SBA accepts the application for processing.” This amendment has provided access to SBA's EIDL Program for business that would have been otherwise ineligible based on the size standards in effect at the time of 2005 Hurricanes but eligible under the inflation adjusted size standards that took effect within several months after these disasters. SBA received only one comment on this provision, which fully supported this change.

The Office of Management and Budget (OMB) has determined that this rule is a significant regulatory action under section 3(f) of Executive Order 12866. A general discussion of the need for this regulatory action and its potential costs and benefits follows.

SBA's statutory mission is to aid and assist small businesses through a variety of financial, procurement, business development, and advocacy programs. To assist effectively the intended beneficiaries of these programs, SBA must establish distinct definitions of which businesses are deemed small businesses. The Small Business Act (15 U.S.C. 632(a)) (Act) delegates to the SBA Administrator the responsibility for establishing small business definitions. The Act also requires that small business definitions vary to reflect industry differences. The supplementary information to this final rule explains the approach SBA follows when adjusting size standards for inflation. Based on the rise in the general level of prices, SBA believes that an inflation adjustment to size standards is needed to reflect small businesses in industries with monetary-based size standards.

The benefits of increasing size standards to a more appropriate level will accrue to three groups: (1) Businesses that gain or regain small business status from the higher size standards and use small business assistance programs; (2) growing small businesses that may exceed the existing size standards in the near future; and (3) Federal agencies that award contracts under procurement programs that require small business status.

The most significant benefit to businesses obtaining small business status because of this rule is eligibility for Federal small business assistance programs. Approximately 10,400 firms will gain small business status and become eligible for these programs, and for most cases regain their small business status. We note that the interim final rule estimated 11,600 affected businesses. This rule estimates the number of businesses affected by the additional increase to the size standards and essentially comprises a sub-group of the 11,600 businesses since the real value of the size standards has decreased since the time of the interim final rule. That is, many of the businesses gaining small business status as a result of the interim final rule have over time lost small business status because of the additional inflation since December 2005. These businesses account for 0.8 percent of total sales in the adjusted industries. They will benefit from SBA's financial assistance programs, economic injury disaster loans and from Federal procurement programs for small businesses. These include 8(a) firms, small disadvantaged businesses, small businesses located in Historically Underutilized Business Zones (HUBZone), women-owned small businesses, veteran-owned small businesses, and service-disabled veteran-owned small businesses (SBVO SBCs). Also, on Federal contracts awarded through full and open competition, they can benefit after application of the HUBZone or small disadvantaged business price evaluation preference. These programs assist small businesses to become more knowledgeable, stable and competitive business.

SBA estimates that approximately $550 million in Federal prime contracts could be awarded to businesses becoming re-designated as small businesses under this rule. In fiscal years 2005-2006 (the latest fiscal year data available), small businesses averaged $46.8 billion per year out of $184.9 billion in Federal prime contracts in industries with monetary-based size standards. This estimate assumes that half of the re-defined small businesses participate in Federal contracting and they could obtain the same proportion of their industry share (one-half of 0.8 percent) of the remaining large business Federal contract awards (($184.9 billion − $46.8 billion = $138.8 billion) × 0.004 = $0.552 billion).

SBA views the additional amount of projected contract activity as the potential amount of transfer from non-small to re-designated small businesses. This does not represent the creation of new contracting activity by the Federal Government, merely a possible transfer or reallocation to different sized businesses.

Under the SBA's 7(a) Guaranteed Loan Program, SBA estimates that approximately $73 million in new Federal loan guarantees could be made to these re-defined small businesses. In fiscal year 2007, small businesses in industries with monetary-based size standards received $12.1 billion in loan guarantees under the 7(a) loan program. Most of the re-defined small businesses have 50 or more employees. SBA guaranteed 937 loans worth $413 million to small businesses with 50 or more employees. Based on the Census Bureau data, only about 1.6 percent of businesses within the size range of the re-defined small businesses participate in the 7(a) loan program. Assuming this level of participation, 166 additional loans could be guaranteed to the re-defined small businesses (10,400 × 0.016 = 166). The value of these loans is estimated by multiplying the average size loan to small businesses with 50 or more employees, which is $441,000, by the number of additional loans ($441,000 × 166 = $73,206,000).

The re-defined small businesses will also benefit from SBA's EIDL Program. Because this program is contingent on the occurrence and severity of disasters, SBA cannot make a meaningful estimate of benefits to victims of future disasters.

To the extent that up to 10,400 additional firms could become active in Federal small business programs, this may entail some additional administrative costs to the Federal Government. There will be more businesses eligible to enroll in the Central Contractor Registration (CCR) and to be verified for listing in the CCR's Dynamic Small Business Search database. There likely will be more bidders on Federal procurement opportunities reserved for small businesses. Among businesses in this group seeking SBA assistance, there could be some additional costs associated with compliance and verification of small business status and protests of small business status. These costs are likely to generate minimal incremental administrative costs because processes are in place to handle these administrative requirements.

The costs to the Federal Government may be higher on some Federal contracts. With a greater number of businesses defined as small, Federal agencies may be required or choose to set aside more contracts for competition among small businesses rather than using full and open competition. The movement from unrestricted to set-aside contracting is likely to result in competition among fewer bidders. In addition, higher costs may result if additional full and open contracts are awarded to HUBZone businesses because of a price evaluation preference. However, any additional costs associated with fewer bidders would likely be minor since, as a matter of policy, procurements are required or may be set aside for small businesses or reserved for the 8(a), SDVO, or HUBZone Programs only if awards are expected to be made at fair and reasonable prices.

Moreover, with a small amount of estimated lending to the re-defined small businesses as discussed above, it is unlikely that currently-defined small businesses will be denied SBA financial assistance due to an increased pool of eligible small businesses. These additional loan guarantees estimated at $73 million will have little impact on the overall availability of loans for SBA's 7(a) Business Loan Program, which amounted to more than $20 billion in fiscal year 2007.

The revision to the current monetary-based size standard is consistent with SBA's statutory mandate to assist small businesses. This regulatory action promotes the Administration's objectives. One of SBA's goals in support of the Administration's objectives is to help individual small businesses succeed through access to capital and credit, government contracts, and management and technical assistance. Reviewing and modifying size standards where appropriate, including periodic inflation adjustments, ensures that intended beneficiaries have access to small business programs designed to assist them. Size standards do not interfere with State, local, and tribal governments in the exercise of their government functions. In a few cases, state and local governments have voluntarily adopted SBA's size standards for their programs to eliminate the need to establish an administrative mechanism to develop their own size standards.

For purposes of Executive Order 12988, SBA has drafted this rule, to the extent practicable, in accordance with the standards set forth in section 3 of that Order.

This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibility among the various levels of government. Therefore, under Executive Order 13132, SBA determines that this rule does not have sufficient federalism implications to warrant the preparation of a federalism assessment.

SBA has determined that this rule does not impose any new information collection requirements from SBA that require approval by OMB under the Paperwork Reduction Act of 1980, 44 U.S.C. Ch. 35.

Under the Regulatory Flexibility Act (RFA), this rule may have a significant impact on a substantial number of small entities. Immediately below, SBA sets forth a final regulatory flexibility analysis (FRFA). The FRFA addresses the reasons for promulgating the rule; the objectives of this rule; SBA's descriptions and estimate of the number of small entities to which the rule will apply; the projected reporting record-keeping and other compliance requirements of the rule; the relevant Federal rules which may duplicate, overlap or conflict with the rule; and alternatives considered by SBA.

As discussed in the supplemental information, the purpose of this rule is to restore the small business eligibility of businesses that have grown above the size standard due to inflation rather than due to increased business activity. A review of the latest inflation indexes indicates that inflation has increased a sufficient amount to warrant an increase to the current monetary-based size standards.

The revision to the monetary-based size standards for inflation more appropriately defines the size of businesses. This rule merely restores small business eligibility in real terms. Section 3(a) of the Small Business Act (15 U.S.C. 632(a)) gives SBA the authority to establish and change size standards. Within its administrative discretion, SBA implemented a policy in its regulations to review the effect of inflation on size standards at least once every five years (13 CFR 121.102(c)) and make any changes as appropriate. As discussed in the supplementary information, inflation has increases at a sufficient level since the time of the interim final rule to warrant a further adjustment to size standards at this time rather than to re-assess the impact of inflation on size standards 5 years after the time of the interim final rule.

The rule will apply to all businesses seeking benefits or preferences under Federal Government programs. These new size standards allow more businesses to be eligible for these programs. These programs are primarily in Federal Government procurement, such as small business set-asides, 8(a), SDB, HUBZone, and SDVO SBCs. SBA anticipates that about 10,400 additional businesses could be eligible to participate in Federal Government programs. This could increase competition among the current pool of small business concerns. However, it will also allow those businesses, now above the current size standards because of inflation and that can compete only on free and open procurements, to return to competing with other small businesses.

The public raised no significant issues in response to the Initial Regulatory Flexibility Analysis in the December 6, 2005 interim final rule. There were 11 commenters to the interim final rule, two of whom did not comment on the issues raised. The other nine commenters supported the rule. SBA has summarized the comments above in the supplemental information.

This rule does not impose any new information collection requirements under the Paperwork Reduction Act of 1980, 44 U.S.C. Ch. 35. A new size standard does not impose any additional reporting, recordkeeping or compliance requirements on small entities. Increasing size standards expands access to SBA programs that assist small businesses, but does not impose a regulatory burden because small business size standards neither regulate nor control business behavior.

Section 212 of Small Business Regulatory Fairness Act (Pub. L. 104-121) requires an agency to publish one or more “small entity compliance guides” to assist small entities in complying with its rules. Although there are no new compliance requirements associated with small business size standards, there may be some small businesses not acquainted with small business size standards and their application to Federal procurement and other Federal Government programs. Therefore, SBA has published both its “Small Business Size Regulations” and its “Guide to Size Standards” to provide this assistance. Both of these are available on SBA's Web site at http://www.sba.gov/size by selecting on the right hand side of the page “Size Regulations” and “Guide to Size Standards.”

This rule does not overlap with other Federal rules that use SBA's size standards to define a small business. Under Section 3(a)(2)(C) of the Small Business Act, 15 U.S.C. 632(a)(2)(c), unless specifically authorized by statute, Federal agencies must use SBA's size standards to define a small business. In 1995, SBA published in the Federal Register a list of statutory and regulatory size standards that identified the application of SBA's size standards as well as other size standards used by Federal agencies (60 FR 57988-57991, dated November 24, 1995). SBA is not aware of any Federal rule that would duplicate or conflict with establishing size standards.

Other Federal agencies also may use SBA size standards for a variety of regulatory and program purposes. If such a case exists where an SBA size standard is not appropriate, an agency may establish its own size standards with the approval of the SBA Administrator (see 13 CFR 121.902-903). For purposes of a regulatory flexibility analysis, agencies must consult with SBA's Office of Advocacy when developing size standards for its programs. (13 CFR 121.903(c)).

Because all relevant comments supported increasing size standards for inflation, SBA's only other consideration was whether to adopt the size standards presented in the interim final rule with no further increase for the inflation. However, SBA believes that the additional 7.7 percent inflation that has occurred since the time of the interim final rule sufficiently effects the real value of the size standards to warrant applying an additional increase at this time. Otherwise, the benefits achieved by the December 6, 2005 adjustment would essentially be lost and not restored in a timely manner.

History

On April 16, 2008, the FAA published a direct final rule; confirmation of effective date, correction, in the Federal Register (73 FR 20526) Docket No. FAA-2008-0003, amending the existing Class E airspace at Muldrow Army Heliport, Lexington, OK. No comments were received therefore the rule became effective on the date specified, April 10, 2008. It was then determined that the airspace had not been charted. Therefore, the FAA is removing this action from the Federal Register publication system and will issue a new rulemaking with a new effective date to coincide with the charting date.

History

On April 2, 2008, the FAA published a direct final rule; request for comments, in the Federal Register (73 FR 17888) Docket No. FAA-2008-0024, amending the existing Class E airspace at Black River Falls Area Airport, Black River Falls, WI. No comments were received therefore the rule became effective on the date specified, June 5, 2008. It was then determined that the airspace had not been charted. Therefore, the FAA is removing this action from the Federal Register publication system and will issue a new rulemaking with a new effective date to coincide with the charting date.

On April 8, 2008, the FAA proposed to amend Title 14 Code of Federal Regulations (14 CFR) part 71 by establishing Class E airspace at Roanoke Rapids, NC, (73 FR 19020). This action provides adequate Class E airspace for Instrument Flight Rules (IFR) operations at the new Halifax-Northampton Regional Airport (IXA), and will remove Class E airspace for the Halifax County Airport (RZZ). Area Navigation (RNAV) Global Positioning System (GPS) Standard Instrument Approach Procedures (SIAPs) Runways (RWYs) 02-20 have been developed for Halifax-Northampton Regional Airport. As a result, controlled airspace extending upward from 700 feet Above Ground Level (AGL) is needed to contain the SIAP and for IFR operations at Halifax-Northampton Regional Airport. Class E airspace designations for airspace areas extending upward from 700 feet or more above the surface of the Earth are published in Paragraph 6005 of FAA Order 7400.9R, signed August 15, 2007, and effective September 15, 2007, which is incorporated by reference in 14 CFR 71.1. The Class E designations listed in this document will be published subsequently in the Order.

Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments objecting to the proposal were received.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes Class E airspace at Roanoke Rapids, NC, to provide controlled airspace required to support the Instrument Flight Rules (IFR) operations at Halifax-Northampton Regional Airport (IXA) and to remove the Class E airspace supporting Halifax County Airport (RZZ), as the airspace supporting RZZ is no longer required.

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

The Board of Appellate Review, which is part of the Office of the Legal Adviser for administrative purposes and thus referred to by the acronym “L/BAR,” was established to provide a mechanism for appeal of certain administrative decisions of the Department of State. However, as described below, its jurisdiction has been superseded or made obsolete for several years, replaced in large part by review of loss of citizenship and passport matters by the Bureau of Consular Affairs. This rule accordingly reflects current departmental practice and organization related to review of loss of citizenship.

As a result of consolidations through subsequent regulations, 22 CFR 7.3 currently provides that L/BAR is responsible for appeals from: (1) Administrative decisions of loss of nationality or expatriation; (2) administrative decisions denying, revoking, restricting or invalidating a passport under certain provisions; (3) final decisions of contracting officers not otherwise provided for in the Department's contract appeal regulations; (4) administrative determinations under 22 CFR 64.1(a) denying assistance to U.S. nationals who do not comply with the Fair Labor Standards in 22 CFR 61.2; and, (5) administrative decisions in such other cases and under such terms of reference as the Secretary authorizes.

Amendments to Federal statutes and regulations other than 22 CFR part 7 have significantly narrowed L/BAR authorities, and thus very few or no appeals are brought to it. Although 22 CFR 7.3(b) gave L/BAR jurisdiction over certain passport denial, revocation, and restriction cases, subsequent changes to 22 CFR part 51 superseded that provision, most recently revisions effective February 1, 2008 to 22 CFR 51.70-51.74 (formerly 22 CFR 51.80 et seq. ), 72 Federal Register 222 (November 19, 2007), p. 64939. With respect to § 7.3(a), persons determined to have lost U.S. nationality typically seek reconsideration from the Bureau of Consular Affairs, which provides for a less cumbersome and more timely procedure. Moreover, the Consular Affairs Bureau will consider a request for such review without time limitation, while L/BAR sets a one-year time limit for appeals. Very few of those who appeal do so within one year. Consequently, the number of appeals to L/BAR in recent years has dramatically diminished.

Respecting 22 CFR 7.3(c), L/BAR no longer has jurisdiction over any appeals from final decisions of contracting officers, as its authority over such appeals has been terminated (see 41 U.S.C. 607 and the Department's Acquisition Regulations, 48 CFR part 633). As for § 7.3(d), L/BAR's jurisdiction over denials of assistance in cases involving failures to comply with Fair Labor Standards has long been outdated, because the sanctions implemented by those standards are no longer in force and the regulations implementing them in 22 CFR have been superseded. Finally, the Secretary has not conferred jurisdiction on L/BAR to hear appeals of any other Department administrative decisions, as provided for in 22 CFR 7.3(e).

Because its jurisdiction is obsolete or has been eliminated, and its theoretical functions exercised by other bodies or offices, there is no longer a need for L/BAR. Accordingly, this regulation eliminates the current regulations in part 7 of 22 CFR (reserving part 7) and with it L/BAR.

The Administrative Procedure Act, 5 U.S.C. 553(b), does not require notice and public comment of “rules of agency organization, procedure, or practice.” This rule pertains to agency organization, management, and practice for expatriation review and is being published as an interim final rule. The Department remains interested, however, in receiving for consideration any views from the public with respect to the rule, and is therefore requesting public comment by the due date noted above.

The elimination of L/BAR means there will no longer be a formal administrative appeal of loss-of-nationality determinations by the Department. Revisions to 22 CFR 50.51 delete references to an appeal to L/BAR.

Importantly, the Department expects to continue its current discretionary practice of reviewing prior findings of loss of nationality at the request of an affected individual who believes the finding should be reversed in light of subsequent legal developments (for example, an intervening Supreme Court decision) or when substantial new facts become available relevant to involuntariness or absence of intent at the time of the expatriating act. The revisions to 22 CFR 50.51 codify this discretionary practice, which is now partially codified in 22 CFR 7.2(b). In addition, the Bureau of Consular Affairs has modified its procedures for such reviews to provide that each case submitted for reconsideration will be examined by an officer who was not involved in the original determination using specified criteria.

Revisions to 22 CFR 50.51 also clarify that requesting reconsideration by the Department of a finding of loss of nationality is neither a mandatory procedure prior to resort to judicial processes nor a formal “procedure for administrative appeal” for purposes of section 358 of the INA (8 U.S.C. 1501). Accordingly, the issuance of a Certificate of Loss of Nationality constitutes the “final administrative determination” and “final administrative denial” for purposes of INA §§ 358 and 360 (8 U.S.C. 1501 & 1503), respectively. This means that the five-year statute of limitations for bringing an action in federal court under INA § 360 (8 U.S.C. 1503) to overturn a determination of loss of nationality begins to run when the Certificate of Loss of Nationality is issued. The Department imposes no time limit for requesting its discretionary reconsideration by the Bureau of Consular Affairs of a finding of loss, and as such this review is not intended to serve as a formal “appeal procedure” that may affect the running of the statutory statute of limitations contained in 8 U.S.C. 1503.

The Department is publishing this rule as an interim final rule, with 60 days for post-promulgation public comments, in accordance with the exemption contained in 5 U.S.C. 553(a)(2) for matters relating to agency management or personnel.

Since this action is exempt from the notice and comment procedures contained in 5 U.S.C. 553, and no other statute mandates such procedures, no analysis under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) is required. However, these changes to the regulations are hereby certified as not expected to have a significant impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act, 5 U.S.C. 601-612, and Executive Order 13272, section 3(b).

This interim final 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 significant 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 export markets.

Section 202 of the Unfunded Mandates Reform Act of 1995 (UFMA), Public Law 104-4, 109 Stat. 64, 2 U.S.C. 1532, generally requires agencies to prepare a statement before proposing or adopting any rule that may result in an annual expenditure of $100 million or more (adjusted annually for inflation) 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 regulation will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Nor will the rule have federalism implications warranting the application of Executive Orders No. 12372 and No. 13132.

The Department of State has reviewed this interim final 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 regulation justify its costs. The Department does not consider the rule to be a significant regulatory action within the scope of section 3(f)(1) of the Executive Order.

The Department has reviewed the 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.

Under the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501, et seq. , Federal agencies must obtain approval from OMB for most collections of information they conduct, sponsor, or require through regulation. The Department of State has determined that this rule does not require new collection of information for purposes of the PRA.

The Directorate of Defense Trade Controls (DDTC) is revising 22 CFR 122.3 to limit the registration period to one year, instead of up to two years for both new registrants and for those renewing their registration. Registrants will be required to submit renewal packages no more than 60 days prior to their current expiration date.

Administrative Procedure Act: This amendment involves a foreign affairs function of the United States and, therefore, is not subject to the procedures contained in 5 U.S.C. 553 and 554.

Regulatory Flexibility Act: Because this rule is exempt from notice and comment rulemaking under 5 U.S.C. 553, it is exempt from the regulatory flexibility analysis requirements set forth in sections 603 and 604 of the Regulatory Flexibility Act (5 U.S.C. 603 and 604).

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

Small Business Regulatory Enforcement Fairness Act of 1996: This amendment has not been found to be a major rule within the meaning of the Small Business Regulatory Enforcement Fairness Act of 1996.

Executive Orders 12372 and 13132: This amendment will not have substantial effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this amendment does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. Executive Order 12372, regarding intergovernmental consultation on Federal programs and activities, does not apply to this amendment.

Executive Order 12866: This amendment is exempt from the review under Executive Order 12866, but has been reviewed internally by the Department of State to ensure consistency with the purposes thereof.

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

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

The final regulations and removal of temporary regulations that are the subjects of this document are under sections 1, 170A, 861, 871, 876, 881, 884, 901, 931, 932, 933, 934, 935, 937, 957, 1402, 6012, 6038, 6046, 6688, and 7701 of the Internal Revenue Code.

As published, final regulations (TD 9391) contain an error that may prove to be misleading and is in need of clarification.

On July 7, 2008, the Alcohol and Tobacco Tax and Trade Bureau (TTB) issued TTB Ruling 2008-3 to clarify that certain brewed products classified as “beer” under the Internal Revenue Code of 1986 do not meet the definition of a “malt beverage” under the Federal Alcohol Administration Act. We made this ruling available through the TTB Web site on July 8, 2008. This ruling is reproduced below:

In recent months, the Alcohol and Tobacco Tax and Trade Bureau (TTB) has received inquiries from brewers regarding the labeling standards that apply to beers produced from substitutes for malted barley, such as rice or corn. We also have fielded questions from brewers and importers regarding the appropriate labeling of beers that are made without hops. This ruling explains the statutory criteria for classification of products as “beer” and “malt beverages” under the applicable laws and regulations.

Sections 105(e) and (f) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e) and (f), vest broad authority in the Secretary of the Treasury to prescribe regulations with respect to the labeling and advertising of wine, distilled spirits, and malt beverages that are introduced into interstate or foreign commerce or imported into the United States. Section 105(e) also provides that no person may bottle, or remove from customs custody in bottles, distilled spirits, wine, or malt beverages unless he has obtained a certificate of label approval issued in accordance with regulations prescribed by the Secretary. Regulations that implement the provisions of §§ 105(e) and (f), as they relate to malt beverages, are set forth in part 7 of the TTB regulations (27 CFR part 7), Labeling and Advertising of Malt Beverages. In the case of malt beverages, the labeling provisions of the FAA Act apply only if the laws of the State into which the malt beverages are shipped impose similar requirements.

Section 117(a)(7) of the FAA Act (27 U.S.C. 211(a)(7)) defines the term “malt beverage” as “a beverage made by the alcoholic fermentation of an infusion or decoction, or combination of both, in potable brewing water, of malted barley with hops, or their parts, or their products, and with or without other malted cereals, and with or without the addition of unmalted or prepared cereals, other carbohydrates or products prepared therefrom, and with or without the addition of carbon dioxide, and with or without other wholesome products suitable for human food consumption.” The same definition appears in the TTB regulations at 27 CFR 7.10.

Chapter 51 of the Internal Revenue Code of 1986 (IRC) sets forth excise tax collection and related provisions pertaining to distilled spirits, wines, and beer; these provisions and the regulations promulgated thereunder are also administered by TTB. Within Chapter 51 of the IRC, section 5051 (26 U.S.C. 5051) imposes a tax on all beer brewed or produced, and removed for consumption or sale, within the United States, or imported into the United States. Section 5412 of the IRC (26 U.S.C. 5412) provides that beer may be removed from the brewery for consumption or sale only in hogsheads, packages, and similar containers, marked, branded, or labeled in such manner as the Secretary of the Treasury may by regulation require. Regulations that implement the Chapter 51 provisions pertaining to beer are set forth in part 25 of the TTB regulations (27 CFR part 25) and include, in § 25.142 (27 CFR 25.142), label requirements for beer in bottles.

Section 5052(a) of the IRC (26 U.S.C. 5052(a)) defines the term “beer,” for purposes of Chapter 51, as “beer, ale, porter, stout, and other similar fermented beverages (including sake or similar products) of any name or description containing one-half of 1 percent or more of alcohol by volume, brewed or produced from malt, wholly or in part, or from any substitute therefor.” The same definition appears in the TTB regulations at 27 CFR 25.11. In addition, with reference to what may be a substitute for malt, § 25.15(a) of the TTB regulations (27 CFR 25.15(a)) states that “[o]nly rice, grain of any kind, bran, glucose, sugar, and molasses are substitutes for malt.”

As indicated above, the definition of a “beer” under the IRC differs from the definition of a “malt beverage” under the FAA Act in several significant respects. First, the IRC does not require beer to be fermented from malted barley; instead, a beer may be brewed or produced from malt or “from any substitute therefor.” Second, the IRC does not require the use of hops in the production of beer. Third, the definition of “beer” in the IRC provides that the product must contain one-half of one percent or more of alcohol by volume, whereas there is no minimum alcohol content for a “malt beverage” under the FAA Act.

Accordingly, a fermented beverage that is brewed from a substitute for malt (such as rice or corn) but without any malted barley may constitute a “beer” under the IRC but does not fall within the definition of a “ malt beverage” under the FAA Act. Similarly, a fermented beverage that is not brewed with hops may fall within the IRC definition of “beer” but also falls outside of the definition of a “malt beverage” under the FAA Act.

It should be noted that sake and similar products are included within the definition of “beer” under the IRC. See 26 U.S.C. 5052(a). However, sake is also included within the definition of a wine under the FAA Act, which, among other things, covers only wines with an alcohol content of at least seven percent alcohol by volume. See 27 U.S.C. 211(a)(6). Thus, sake and similar products with an alcohol content of at least seven percent alcohol by volume are subject to the labeling and other requirements of the FAA Act.

Beers (other than saké and similar products) that do not conform to the definition of a “malt beverage” in the FAA Act are outside the scope of the FAA Act and, therefore, are not subject to the labeling, advertising, and other provisions of the TTB regulations promulgated under the FAA Act. This means, among other things, that brewers and importers of such products are not required to obtain a certificate of label approval for these beers.

Brewery products that are not malt beverages under the FAA Act but that conform to the IRC definition of “beer” are still subject to all applicable requirements of the IRC and part 25 of the TTB regulations, including the labeling of bottles (§ 25.142) and the approval of formulas (27 CFR 25.55). Furthermore, all alcohol beverages containing not less than one-half of one percent alcohol by volume and intended for human consumption are subject to the Government health warning statement requirements of the Alcoholic Beverage Labeling Act of 1988 (the ABLA, codified at 27 U.S.C. 213 through 219 and 219a) and the ABLA implementing regulations in part 16 of the TTB regulations (27 CFR part 16).

In cases where a brewery product (other than saké and similar products) fails to meet the definition of a “malt beverage” under the FAA Act, the product will be subject to ingredient and other labeling requirements administered by the U.S. Food and Drug Administration (FDA). As reflected in the 1987 Memorandum of Understanding between FDA and TTB's predecessor agency, the Bureau of Alcohol, Tobacco and Firearms (ATF), TTB is responsible for the promulgation and enforcement of regulations with respect to the labeling of distilled spirits, wines, and malt beverages pursuant to the FAA Act. Importantly, however, in cases where an alcohol beverage is not covered by the labeling provisions of the FAA Act, the product is subject to ingredient and other labeling requirements under the Federal Food, Drug, and Cosmetic Act, and the implementing regulations that are administered by FDA.

TTB and its predecessor agency have previously provided guidance on the minimum quantities of malted barley and hops required to be used in the production of malt beverages. In 1994, the Bureau of Alcohol, Tobacco and Firearms (ATF) issued ATF Compliance Matters 94-1, which provided that beers fermented from at least 25 percent malted barley (calculated as the percentage of malt, by weight, compared to the total dry weight of all ingredients contributing fermentable extract to the base product) and made with at least 7 1/2 pounds of hops (or the equivalent thereof in hop extracts or hop oils) per 100 barrels were “malt beverages” under the FAA Act. Because neither the FAA Act nor the implementing regulations in 27 CFR part 7 prescribe minimum standards for the amount of malted barley used in the production of a malt beverage, we are now reconsidering this guidance.

Pending a decision on whether to engage in rulemaking on this issue, TTB will continue to address inquiries from brewers regarding the classification of fermented beverages that contain hops and malted barley, but are made from less than 25 percent malted barley or less than 7 1/2 pounds of hops per 100 barrels. For example, we recently determined that a neutral malt beer base containing a much lower amount of malted barley (one percent of the total dry weight of all ingredients contributing fermentable extract to the product) conformed to the definition of a “malt beverage.”

Brewers and importers should contact the Assistant Director, Advertising, Labeling and Formulation Division, if they have a question as to whether a particular product falls within the definition of a “malt beverage” and therefore is subject to the certificate of label approval and other requirements under the FAA Act.

Held, in order for a brewery product to fall within the definition of a “malt beverage” under the FAA Act, it must be a fermented beverage made from both malted barley and hops, or their parts, or their products. A fermented beverage that qualifies as a “beer” under the IRC (other than saké or similar products) but that is made without both malted barley and hops is not subject to the requirements of the FAA Act.

On April 25, 2008, we published a notice of proposed rulemaking (NPRM) entitled Regattas and Marine Parades; Great Lakes Annual Marine Events, in the Federal Register (73 FR 22303). We received 0 letters commenting on the proposed rule. No public meeting was requested, and none was held.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying this rule would be contrary to the public interest of ensuring the safety and security of the spectators and participants during this event and immediate action is necessary to prevent possible loss of life or property.

This rule will remove the specific entries from table 1 found in 33 CFR 100.901, Great Lakes annual marine events that apply to regattas and marine parades in the Captain of the Port Detroit zone and list each regatta or marine parade as a subpart. This rule will also add several regattas and marine parades not previously listed in 33 CFR Part 100 and remove several events that no longer occur annually or are not regattas or marine parades.

No comments were received and no changes were made to this rule.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.

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

The Coast Guard's use of these special local regulations will be periodic in nature, of short duration, and designed to minimize the impact on navigable waters. These special local regulations will only be enforced immediately before and during the time the marine events are occurring. Furthermore, these special local regulations have been designed to allow vessels to transit unrestricted through portions of the waterways not affected by the special local regulations. The Coast Guard expects insignificant adverse impact to mariners from the activation of these special local regulations.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities.

This rule would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in the areas designated as special local regulations in paragraphs (4) through (13) during the dates and times the special local regulations are being enforced.

These special local regulations would not have a significant economic impact on a substantial number of small entities for the following reasons: The special local regulations in this rule would be in effect for short periods of time, and only once per year; and the special local regulations have been designed to allow traffic to pass safely around the zone whenever possible and vessels will be allowed to pass through the zones with the permission of the Captain of the Port.

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

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. We did not receive any comments for this section.

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

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

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

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

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. We did not receive any comments for this section.

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

The Coast Guard recognizes the treaty rights of Native American Tribes. Moreover, the Coast Guard is committed to working with Tribal Governments to implement local policies and to mitigate tribal concerns. We have determined that these regulations and fishing rights protection need not be incompatible. We have also determined that this Rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Nevertheless, Indian Tribes that have questions concerning the provisions of this Rule or options for compliance are encouraged to contact the point of contact listed under FOR FURTHER INFORMATION CONTACT .

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

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

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. We did not receive any comments for this section.

We have analyzed this rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (35)(h) of the Instruction, from further environmental documentation. This event establishes a regulated area for marine events, therefore paragraph (35)(h) of the Instruction applies.

A final environmental analysis checklist and a final categorical exclusion determination are available in the docket where indicated under ADDRESSES .

In the April 25, 2007, issue of the Federal Register (72 FR 20460), the Corps published a proposed rule to designate an existing rifle range fan as a danger zone. The proposed danger zone is within an existing restricted area that was established in 1951 (16 FR 2578) and amended in 1997 (62 FR 17553). In response to the April 25, 2007, proposed rule, no comments were received.

Pursuant to its authorities in section 7 of the Rivers and Harbors Act of 1917 (40 Stat. 266; 33 U.S.C. 1) and Chapter XIX of the Army Appropriations Act of 1919 (40 Stat. 892; 33 U.S.C. 3), the Corps amends 33 CFR 334.430 by adding a danger zone along the Neuse River as described below. The regulations governing the existing restricted area have not been changed.

This rule is issued with respect to a military function of the Defense Department and the provisions of Executive Order 12866 do not apply.

This rule has been reviewed under the Regulatory Flexibility Act (Pub. L. 96-354) which requires the preparation of a regulatory flexibility analysis for any regulation that will have a significant economic impact on a substantial number of small entities (i.e., small businesses and small governments). The Corps has determined that the establishment of this danger zone will have practically no economic impact on the public, result in no anticipated navigational hazard, and will not interfere with existing waterway traffic. This rule will have no significant economic impact on small entities.

Due to the administrative nature of this action and because there is no intended change in the use of the area, the Corps determined that this regulation will not have a significant impact to the quality of the human environment and, therefore, preparation of an environmental impact statement will not be required. An environmental assessment has been prepared. The environmental assessment may be reviewed at the District office listed at the end of FOR FURTHER INFORMATION CONTACT , above.

This rule does not impose an enforceable duty on the private sector and, therefore, it is not a Federal private sector mandate and it is not subject to the requirements of either section 202 or section 205 of the Unfunded Mandates Act. We have also found under section 203 of the Act that small governments will not be significantly and uniquely affected by this rulemaking.

On May 20, 2008, the Postal Service filed notice, pursuant to 39 U.S.C. 3632(b)(3) and 39 CFR 3015.5, of the Governors' decision establishing prices for competitive products not of general applicability for Inbound Express Mail International (EMS). 1 The Postal Service's filing, docketed as Docket No. CP2008-6, includes supporting material, including the Governors' decision, filed under seal. Concurrently, the Postal Service filed notice, pursuant to 39 CFR 3015.5, of a specific negotiated service agreement covering Inbound EMS prices. 2 This filing, docketed as Docket No. CP2008-7, includes the contract and supporting materials filed under seal.

On June 3, 2008, the Commission issued Order No. 79, which determined that Docket No. CP2008-6 establishes, in essence, a shell classification, while Docket No. CP2008-7 is a specific agreement negotiated pursuant to the conditions of the shell classification. Given this interrelationship, the Commission consolidated the proceedings for purposes of review under Docket No. CP2008-7. 3

In Order No. 79, the Commission also reiterated its position that each negotiated service agreement will initially be classified as a separate product, while acknowledging the possibility of grouping functionally equivalent agreements as a single product if they exhibit similar cost and market characteristics. Id . at 2-3. This, in effect, invoked the filing and review requirements of 39 CFR part 3020, subpart B, along with the requirements of rule 3015.5 for competitive products.

On June 10, 2008, the Postal Service filed material responsive to questions posed in Order No. 79, and material responsive to 39 CFR part 3020, subpart B. 4 The material responsive to 39 CFR part 3020, subpart B included a statement of supporting justification sponsored by Pranab Shah. See Postal Service Response, Attachment A.

The Commission previously proposed, at a minimum, identifying each international mail agreement with foreign posts involving competitive products (both in the Mail Classification Schedule and in other documents generated by the Commission) by the name(s) of the foreign post(s), the mail product(s) involved, and the agreement's expiration date. Order No. 79 at 3-4. In this instance, the Postal Service did not object to this proposal. Postal Service Response at 3.

The Commission also noted that it has made no determination as to whether the portions of the agreement in Docket No. CP2008-7 that relate to outbound mail are subject to its review. Order No. 79 at 3. The Postal Service reiterated its position that an “outbound EMS agreement with China Post Group would no more need to be classified as a product or otherwise subjected to Commission review than would an agreement to purchase trucking services from highway contractors or to purchase air transportation from air carriers.” Postal Service Response at 3.

Order No. 79 also provided an opportunity for public comment on the Postal Service's proposals. Comments were received from the Public Representative (an employee of the Commission assigned to represent the interests of the general public) and United Parcel Service. 5 Neither the Public Representative nor United Parcel Service expressed opposition to the China Post Group agreement.

The Public Representative concludes that the China Post Group agreement “complies with the legal requirements for cost coverage and contribution to the Postal Service's institutional costs.” Public Representative Comments at 4. United Parcel Service supports the Commission's conclusion that this initial agreement be treated as a new product. UPS Comments at 2. It also suggests that because private carriers face more onerous customs and brokerage requirements than the Postal Service, the market for international package delivery and expedited services is less competitive than is often assumed. Id. Both the Public Representative and United Parcel Service discuss issues encompassing the provision of materials under seal. Public Representative Comments at 2-3; UPS Comments at 1.

Commission analysis . The statutory responsibility of the Commission, in this instance, is to assign a new product to either the market dominant list or the competitive product list. 39 U.S.C. 3642. As part of this responsibility, the Commission also will preliminarily review the proposal for compliance with the requirements of the Postal Accountability and Enhancement Act (PAEA) of 2006. For proposed competitive products, this includes review of the provisions applicable to rates for competitive products. 39 U.S.C. 3633.

The Postal Service contends that adding the shell classification as a product will improve the Postal Service's competitive posture. It argues that this can be accomplished while allowing verification that each agreement covers attributable costs, does not result in subsidization of competitive products by market dominant products, and increases contribution from competitive products. Alternatively, adding the individual agreement as a product also will improve the competitive posture of the Postal Service, but to a lesser degree. Postal Service Response, Attachment A, at 2.

The Commission has reviewed the financial analysis provided under seal that accompanies the agreement and finds that the China Post Group agreement should cover its attributable costs (39 U.S.C. 3633(a)(2)), should not lead to the subsidization of competitive products by market dominant products (39 U.S.C. 3633(a)(1)), and should have a positive effect on the collective competitive products ability to provide their appropriate share of institutional costs (39 U.S.C. 3633(a)(3)). 6 Thus, a preliminary review of the agreement indicates that it comports with the provisions applicable to rates for competitive products. In determining whether to assign the China Post Group agreement as a product to the market dominant product list or the competitive product list the Commission must consider whether:

The Commission is further required to consider the availability and nature of enterprises in the private sector engaged in the delivery of the product, the views of those that use the product, and the likely impact on small business concerns. 39 U.S.C. 3642(b)(3).

The Postal Service asserts that its bargaining position is constrained by the existence of other shippers who can provide similar services. Thus, the market precludes the Postal Service from taking unilateral action to increase prices or decrease service without the risk of losing volume to private companies in the international shipping industry. Postal Service Response, Attachment A, at 2-3. The Postal Service contends that private consolidators and freight forwarders may offer international arrangements under similar conditions. Id . at 3. The Postal Service has no specific data on the views of those that use the products on the regulatory classification. Id . at 4. Finally, the Postal Service states that large shippers serve the market under consideration, and that there should be little impact upon small business other than adding an additional option for shipping articles to the United States. Id .

The Commission previously assigned Inbound International Expedited Services to the competitive product list. 7 The Postal Service contends that the China Post Group agreement falls within the Inbound International Expedited Services heading. The Commission has not received public opposition to the proposed regulatory classification during the comment period. Having considered the statutory requirements, the argument put forth by the Postal Service, and the public comment, the Commission finds that the China Post Group agreement is appropriately categorized as a competitive product and should be added to the competitive product list. The revisions to the competitive product list are shown below the signature of this order, and shall become effective upon publication in the Federal Register .

Mail Classification Schedule . The Postal Service previously proposed applicable draft Mail Classification Schedule language governing Inbound Express Mail International Services (EMS). 8 Attachment A to the Governors' decision filed in Docket No. CP2008-6 repeats this language. These proposals suggest assigning the China Post Group agreement to the Express Mail, Inbound Express Mail International category. In Docket Nos. CP2008-4, CP2008-5, CP2008-8, CP2008-9, and CP2008-10, the Postal Service's draft Mail Classification Schedule language proposes to assign the associated agreements to the Negotiated Service Agreements, Outbound International category. The intent of the overall Negotiated Service Agreements category is to organize all negotiated agreements. Thus, the categorization in the instant docket does not appear to be consistent with the other proposals. The Commission invites the Postal Service to share its thoughts and concerns on development of a consistent approach to organizing competitive product negotiated agreements within the Mail Classification Schedule.

The Postal Service's proposed Mail Classification Schedule language indicates that other negotiated agreements may exist within Inbound Express Mail International: Bilateral Express Mail Service (EMS); EMS Cooperative Pay for Performance; Kahala Posts Group; European Parcel Group; and China Post Group. The Commission does not have specific information on the negotiated agreements for these products. The Postal Service shall provide the Commission with a list of ongoing agreement names, and expiration dates separated by product, along with a copy of each agreement. 9 Providing this information will aid the Commission in understanding the Postal Service's product offerings, and enhance the transparency of the Postal Service to the mailing community.

Updating the Mail Classification Schedule . The China Post Group agreement contains provisions for early termination and automatic renewal of the agreement. The Postal Service shall notify the Commission of an early termination no later than the date of termination. The Commission then will remove the agreement from the Mail Classification Schedule at the earliest possible opportunity. The Postal Service also shall notify the Commission of an automatic renewal of the agreement 15 days prior its occurrence. Otherwise, the Commission will assume that the contract has lapsed and remove the agreement from the Mail Classification Schedule without notice.

Additional agreements . As of now, the China Post Group agreement represented by Inbound International Expedited Services 1 (CP2008-7) in the competitive product list may be considered the same entity. In the future, the Postal Service may enter into other agreements substantially similar to the China Post Group agreement. When this occurs, Inbound International Expedited Services 1 (CP2008-7) will be considered the product and the included individual agreements will be treated as price categories under the product. 10

If the Postal Service determines that it has entered into an agreement substantially equivalent to the China Post Group agreement with another country, it may file such an agreement using the abbreviated requirements provided by rule 3015.5. In each case, the individual agreement must be filed with the Commission, and each agreement must meet the requirements of 39 U.S.C. 3633. The Postal Service shall identify all significant differences between the new agreement and the pre-existing product group. Such differences would include terms and conditions that impose new obligations or new requirements on any party to the agreement. The Commission will verify whether or not the second agreement is in fact substantially equivalent. Agreements that are not substantially equivalent will continue to have to meet the filing requirements provided by 39 CFR part 3020, subpart B. If this approach proves too cumbersome, alternative approaches may be considered.

Confidentiality of information . The Commission is aware that the treatment of information as confidential is a sensitive issue. The Postal Service, the Public Representative, and United Parcel Service all express valid concerns that the Commission will address in the future on a broader level.

In this docket, the Commission will take a limited first step to add transparency and facilitate the process of reviewing future agreements of this style. The Commission has reviewed the Governor's decision supporting the request provided as required by rule 3020.31(b), and has determined that most of the document does not pose a risk of competitive harm if disclosed. In fact, the Postal Service disclosed similar information associated with Docket Nos. CP2008-8, CP2008-9, and CP2008-10. The Postal Service is directed to file a redacted version of the Governor's decision provided under seal in Docket No. CP2008-6. 11

It is Ordered:

1. The China Post Group agreement is added as a product not of general applicability to the competitive product list under Inbound International Expedited Services as Inbound International Expedited Services 1 (CP2008-7).

2. The Postal Service shall provide the Commission with suggestions regarding the development of a consistent approach to organizing competitive product negotiated agreements within the Mail Classification Schedule by July 23, 2008.

3. The Postal Service shall file with the Commission a list of all ongoing Inbound International Expedited Services agreements and expiration dates separated by product, along with a copy of each agreement, by July 23, 2008.

4. The Postal Service shall file with the Commission a redacted version of the Governors' decision provided under seal in Docket No. CP2008-6 by July 23, 2008.

5. The Secretary shall arrange for publication of this order in the Federal Register .

I. Background

On April 15, 2008 (73 FR 20234), EPA published a notice of proposed rulemaking (NPR) for the State of Maryland. The NPR proposed approval of the control of VOC emissions from marine vessel and barge loading by establishing RACT requirements. The formal SIP revision was submitted by the Maryland Department of the Environment (MDE) on October 24, 2007.

The Maryland Department of the Environment submitted this revision to the SIP to establish reasonably available control technology requirements for marine vessel and barging loading. The SIP revision includes amendments to Regulation .01 and adoption of new Regulation .08 under COMAR 26.11.13 Control of Gasoline and Volatile Organic Compound Storage and Handling. The amendment to COMAR 26.11.13.01 consists of a new definition that defines a marine vessel as any tank ship or barge that transports VOCs in bulk as cargo. The new regulation COMAR 26.11.13.08 requires owners or operators of barge loading facilities in Baltimore City, Anne Arundel, Baltimore, Calvert, Carroll, Cecil, Charles, Frederick, Harford, Howard, Montgomery, and Prince George's Counties to reduce capture of VOC vapors by 90 percent if emissions from the barge loading equal or exceed 25 tons per year (TPY). In the rest of the state (Allegheny, Caroline, Dorchester, Garrett, Kent, Queen Anne's, St. Mary's, Somerset, Talbot, Washington, Wicomico, and Worchester Counties), controls are required if emissions are equal to or exceed 50 TPY.

The rationale for EPA's proposed action are explained in the NPR and will not be restated here. On April 15, 2008, EPA received a comment on the April 15, 2008 NPR. A summary of the comment submitted and EPA's response is provided in section III of this document.

Comment: A single commenter questions why the state is establishing a RACT standard for marine vessel and barge loading instead of a Best Available Control Technology (BACT) or Maximum Achievable Control Technology (MACT) standard. The commenter also claims that established BACT and MACT standards would achieve greater control than the proposed RACT standard, though at cost ranging from somewhat less than estimated by the state.

Response: These amendments, submitted by the State of Maryland establishing RACT requirements for VOC emissions from marine vessel and barge loading, are being approved by EPA because EPA has determined that they properly represent RACT for this source category. Since the 1970's, EPA has consistently interpreted RACT to mean the lowest emission limit that a particular source is capable of meeting by the application of the control technology that is reasonably available considering technological and economic feasibility. See, e.g. , 72 FR 20586 at 20610 (April 25, 2007). Maryland submitted this SIP revision request pursuant to the RACT requirements of sections 182 and 184 of the CAA. Other provisions of the CAA may require BACT or MACT level controls for sources. However, these are generally considered to be more stringent than RACT, and thus, the controls necessary to meet BACT or MACT requirements may not be the same as controls that would meet the RACT requirement.

Maryland is located in the Ozone Transport Region (OTR) that was created by section 184 of the CAA. Section 184(b)(1)(B) of the CAA requires that Maryland implement RACT regulations on all VOC sources that have the potential to emit 50 TPY or more. In addition, section 182(b)(2) requires that Maryland implement RACT regulations on all major sources of VOC in moderate or above ozone nonattainment areas within the State. Major VOC sources are those with the potential to emit at least 100 TPY in moderate areas, 50 TPY in serious areas, and 25 TPY in severe areas.

BACT, on the other hand, is a case-by-case emissions limitation based on the maximum degree of reduction of a regulated pollutant emitted from a major new source or a major modification of an existing source, as determined by application of EPA's Prevention of Significant Deterioration regulations, 40 CFR 52.21, which are authorized by sections 160-169 of the CAA. BACT, therefore, is determined by a different standard than RACT and does not apply to unmodified existing sources that would be covered by the RACT rule.

Similarly, MACT is also a distinct legal requirement and is determined through a different standard than RACT. MACT standards are designed to reduce hazardous air pollutants emissions to a maximum achievable degree, taking into account factors such as cost and energy requirements, as set forth at 40 CFR 63.41, and as authorized by section 112 of the CAA. Although EPA has promulgated a standard for barge loading (40 CFR Part 63 Subpart Y), as with BACT, not every source required to be covered by the Maryland RACT rule would be required to have a MACT limit, and the definition of MACT takes into account factors that are not required for RACT.

In sum, RACT, MACT, and BACT are potentially overlapping emissions limitation requirements, authorized by different provisions of the CAA, directed to remedy distinct problems (RACT, in this case, to help attain the federal ozone standard by controlling emissions of VOC, an ozone precursor; BACT to prevent significant deterioration in areas attaining a federal standard through permitting of new and modified sources; and MACT to control emissions of listed hazardous air pollutants), covering different (but potentially overlapping) subsets of sources, and based on different control standards.

The commenter's failure to document and support either cost data provided in the comment, or the methodology the commenter used to determine BACT/MACT, prevents EPA from ascertaining whether or not the commenter has properly determined BACT/MACT for these operations, the relative costs compared to the RACT adopted by the State, where the cost data supplied in the comment comes from, or if it is valid. Mere assertions, without analysis, that EPA's proposal is wrong are an insufficient basis for EPA to disapprove this SIP. See International Fabricare Inst. v. EPA , 972 F.2d 384 (D.C.Cir. 1992).

EPA has evaluated Maryland's SIP submittal and determined that the Maryland regulation meets the requirements for RACT. Because this SIP revision meets the criteria for RACT, as well as the other approvability criteria, EPA must approve this SIP revision. See section 110(k)(3) of the CAA, 42 U.S.C. 7410(k)(3); see also, Union Elec. Co. v. EPA , 427 U.S. 246, 265, 96 S.Ct. 2518, 49 L.Ed.2d 474 (1976).

EPA is approving the control of volatile organic compound emissions by establishing reasonably available control technology requirements for marine vessel and barge loading as a revision to the Maryland SIP which was submitted on October 24, 2007. This regulation will result in the reduction of VOC emissions from the affected sources.

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 16, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action pertaining to Maryland's amendments to the control of volatile organic compound emissions by establishing RACT requirements for marine vessel and barge loading may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

On May 27, 2008 (73 FR 30347), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Pennsylvania. The NPR proposed approval of Pennsylvania's SIP revision that establishes a maintenance plan for the Snyder County Area that provides for continued attainment of the 8-hour ozone NAAQS for at least 10 years after designation, and a 2002 base-year emissions inventory. The formal SIP revisions were submitted by PADEP on December 17, 2007. Other specific requirements of Pennsylvania's SIP revision and the rationales for EPA's proposed actions are explained in the NPR and will not be restated here. No public comments were received on the NPR.

EPA is approving the maintenance plan and the 2002 base-year inventory for the Snyder County Area, submitted on December 17, 2007, as revisions to the Pennsylvania SIP. EPA is approving the maintenance plan and 2002 base-year inventory for the Snyder County Area because it meets the requirements of section 110(a)(1) of the CAA.

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 16, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action.

This action approving the maintenance plan and the 2002 base-year inventory for the Snyder County Area may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

On May 27, 2008 (73 FR 30352), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Pennsylvania. The NPR proposed approval of Pennsylvania's SIP revision that establishes a maintenance plan for the Juniata County Area that provides for continued attainment of the 8-hour ozone NAAQS for at least 10 years after designation, and a 2002 base-year emissions inventory. The formal SIP revisions were submitted by PADEP on December 17, 2007. Other specific requirements of Pennsylvania's SIP revision and the rationales for EPA's proposed actions are explained in the NPR and will not be restated here. No public comments were received on the NPR.

EPA is approving the maintenance plan and the 2002 base-year inventory for the Juniata County Area, submitted on December 17, 2007, as revisions to the Pennsylvania SIP. EPA is approving the maintenance plan and 2002 base-year inventory for the Juniata County Area because it meets the requirements of section 110(a)(1) of the CAA.

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit September 16, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action.

This action approving the maintenance plan and the 2002 base-year inventory for the Juniata County Area may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

On May 27, 2008 (73 FR 30342), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Pennsylvania. The NPR proposed approval of Pennsylvania's SIP revision that establishes a maintenance plan for the Lawrence County Area that provides for continued attainment of the 8-hour ozone NAAQS for at least 10 years after designation, and a 2002 base-year emissions inventory. The formal SIP revisions were submitted by PADEP on December 17, 2007. Other specific requirements of Pennsylvania's SIP revision and the rationales for EPA's proposed actions are explained in the NPR and will not be restated here. No public comments were received on the NPR.

EPA is approving the maintenance plan and the 2002 base-year inventory for the Lawrence County Area, submitted on December 17, 2007, as revisions to the Pennsylvania SIP. EPA is approving the maintenance plan and 2002 base-year inventory for the Lawrence County Area because it meets the requirements of section 110(a)(1) of the CAA.

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 16, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action.

This action approving the maintenance plan and the 2002 base-year inventory for the Lawrence County Area may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

I. Background

On May 27, 2008 (73 FR 30345), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Pennsylvania. The NPR proposed approval of Pennsylvania's SIP revision that establishes a maintenance plan for the Northumberland County Area that provides for continued attainment of the 8-hour ozone NAAQS for at least 10 years after designation, and a 2002 base-year emissions inventory. The formal SIP revisions were submitted by PADEP on December 17, 2007. Other specific requirements of Pennsylvania's SIP revision and the rationales for EPA's proposed actions are explained in the NPR and will not be restated here. No public comments were received on the NPR.

EPA is approving the maintenance plan and the 2002 base-year inventory for the Northumberland County Area, submitted on December 17, 2007, as revisions to the Pennsylvania SIP. EPA is approving the maintenance plan and 2002 base-year inventory for the Northumberland County Area because it meets the requirements of section 110(a)(1) of the CAA.

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 16, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action.

This action approving the maintenance plan and the 2002 base-year inventory for the Northumberland County Area may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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

On April 23, 2008 (73 FR 21885), we proposed to approve a revision of the California State Implementation Plan (SIP) submitted by the California Air Resources Board (CARB) on November 30, 2007. Table 1 lists the revision we proposed to approve with the dates that it was revised and submitted by CARB.

CARB's November 30, 2007 SIP revision submittal package includes the “Revised Proposed Revision to the Pesticide Element of the 1994 Ozone SIP for the Ventura County Nonattainment Area (August 13, 2007)” (“Revised Pesticide Element for Ventura”) as attachment 3 to Executive Order S-07-003.

As discussed in detail in our April 23, 2008, proposed rule, California adopted the original Pesticide Element to reduce volatile organic compounds (VOC) emissions resulting from the application of agricultural and structural pesticides in certain ozone nonattainment areas and included the Pesticide Element in the 1994 Ozone SIP. Under the original Pesticide Element, for the Ventura County nonattainment area (Ventura), the California Department of Pesticide Regulation (DPR) committed to adopt and submit to EPA by June 15, 1997, any regulations necessary to reduce VOC emissions from agricultural and structural pesticides by 20 percent of the 1990 base year emissions by 2005. California further defined DPR's commitment in Ventura under the Pesticide Element in terms of VOC emissions reductions of 2.4 tons per day by 2005. 1 See 62 FR 1150, at 1169-1170 and at 1187 (January 8, 1997); and 40 CFR 52.220(c)(204)(i)(A)(6) and 52.220(c)(236). In 1997, we approved the 1994 Ozone SIP, including the Pesticide Element. See 62 FR 1150, at 1169-1170 (January 8, 1997). In today's action, we are approving a revision by the State of California to the Pesticide Element for Ventura County.

In our April 23, 2008, proposed rule, we also described the replacement of the 1-hour ozone national ambient air quality standard (NAAQS), for which the 1994 Ozone SIP (and related original Pesticide Element) was developed, with the current 8-hour ozone NAAQS. Further, we noted that California had requested a change in classification, with respect to the 8-hour NAAQS for the Ventura County nonattainment area from “moderate” to “serious” with a new attainment date of June 15, 2013. We also indicated that we had reviewed the subject SIP revision assuming the “serious” classification in anticipation of our approval of the State's request. We have now approved the State's reclassification request. See 73 FR 29073 (May 20, 2008).

In our April 23, 2008, proposed rule, we presented our evaluation of the Revised Pesticide Element for Ventura first by characterizing the change in VOC emissions in Ventura County that would occur if we were to approve the revision, and then by determining whether the change in VOC emissions would interfere with reasonable further progress (RFP) or attainment of any of the NAAQS as required under CAA section 110(l). We described the impact of the Revised Pesticide Element for Ventura in terms of a reduction in the State's emission reduction commitments by 1.3 tons per day in 2008, 1.0 tons per day in 2009, 0.7 tons per day in 2010, and 0.3 tons per day in 2011 that allows a corresponding increase in VOC in Ventura County in those years.

With respect to CAA section 110(l), we found that the Revised Pesticide Element for Ventura would not interfere with RFP for the 8-hour ozone NAAQS, notwithstanding the corresponding, temporary increase in VOC emissions, based on the air quality analysis contained in the Draft Final Ventura County Air Quality Management Plan (AQMP) (March 2008), which includes an RFP demonstration that does not rely on emissions reductions from pesticides. In reaching our conclusion of non-interference with respect to 8-hour ozone RFP, we reviewed the RFP demonstration in the draft Ventura County 2007 AQMP and concluded that the methodology and emission estimates used therein appear reasonable. In our proposed rule, we indicated that we would defer final action on our proposed approval of the Revised Pesticide Element for Ventura until we had received a SIP revision submittal from California containing the final 8-hour ozone Ventura RFP plan. We have now received the final adopted 8-hour ozone Ventura RFP plan from CARB. 2

In our proposed rule, in addition to our RFP finding, we found that the Revised Pesticide Element for Ventura would not interfere with attainment for the 8-hour ozone NAAQS because the temporary decrease in the VOC emissions reduction commitment allowed under the revised pesticide element would be phased out by 2012, i.e., the year before the attainment deadline (June 15, 2013) for Ventura County as a reclassified “serious” ozone nonattainment area. Thus, based on the air quality analysis contained in the draft Ventura County 2007 AQMP and the phase-out of the relaxed commitment by 2012, we concluded that the Revised Pesticide Element for Ventura would not interfere with RFP, attainment, or any other applicable requirement with respect to the 8-hour ozone NAAQS. With respect to the other NAAQS, we based our non-interference conclusion on our finding that the SIP revision would only affect VOC emissions (precursor to ozone) and because Ventura County is unclassifiable/attainment for all of the other NAAQS.

For a more detailed discussion, please refer to our proposed rule (see 73 FR 21885, April 23, 2008).

Our April 23, 2008 proposed rule provided a 30-day comment period. EPA received seven comment letters on our proposed rule during the comment period. Commenters include a government agency (California Department of Pesticide Regulation (DPR)), a State-sanctioned agricultural commission (California Strawberry Commission), two sets of agricultural groups (Western Growers and California Farm Bureau Federation (co-authored a single letter) and Ventura County Agricultural Association), a pesticides manufacturing group (Chloropicrin Manufacturers' Task Force), and two environmental groups (Pesticide Action Network, and Center on Race, Poverty & the Environment). Generally, the organizations other than the environmental groups provided comments in support of our proposed approval of the Revised Pesticide Element for Ventura. These commenters concentrated the discussion on the economic and environmental consequences of the decision on whether or not to approve the proposed revision. Of the two environmental groups who wrote opposing our proposed approval, one raised concerns about the health issues related to the smog in the area, of which pesticide application is a contributor, and the other focused on allegations that the SIP revision would violate section 110(l) of the CAA. Additionally, commenters writing both in support and opposition to our proposed approval remarked upon the technical issue of whether the commitment was to reduce emissions by a tonnage or percentage value.

A summary of the significant comments and responses is provided below.

Comment 1: The majority of commenters emphasize that a reduction in the use of certain fumigants, as a result of a failure to approve the SIP revision, would have a significant, adverse economic impact on the farmers, as well as many others who depend on the agriculture industry. One commenter stresses the long reach of that economic loss, noting that there would be lost revenue to the community, lost jobs to the community, and lost land rents affecting bank loans and financing. These supporters contend that the phased-in approach to compliance will help mitigate adverse economic and environmental impacts in the region, while restoring the ultimate emissions reduction commitments under the 1994 Ozone SIP.

Response 1: EPA's role in reviewing SIP revisions is to approve State choices, provided that they meet minimum criteria set by the CAA and any applicable EPA regulations. As discussed in our proposed rule and as discussed further in this final rule, we believe the SIP revision that is the subject of this action, the Revised Pesticide Element for Ventura, meets those criteria. Thus, while we acknowledge commenters' views as to the economic impacts that could occur if we were to disapprove the SIP revision, we did not base our proposed approval, nor do we base our final approval today, on such considerations.

Comment 2: A few of the commenters address the negative environmental impacts that, in their view, a failure by EPA to approve the SIP revision could create. They explain that the economic strain that would come with the denial of the revision would force a substantial portion of the agricultural land to be converted to urban and suburban development. This conversion, they assert, will result in a large amount of additional emissions from an increase in vehicle traffic and residences (e.g. use of consumer products).

Response 2: We acknowledge commenters' views concerning long-term conversion of agricultural land to urban development and related environmental impacts that could occur if we were to disapprove the Revised Pesticide Element for Ventura. However, we did not take such considerations into account in our proposed action, nor do we take such considerations into account for our final action today. With the limited amount of information on the topic of agricultural land conversion and related environmental impacts that is before us, we do not have a sufficient basis either to agree or to disagree with the commenters' view in that regard. Instead, we have based our approval on an evaluation of the near-certain increase in VOC emissions that would occur from 2008-2011 due to the SIP revision in light of CAA requirements, and have concluded that such VOC increases in Ventura County over the short-term would not interfere with RFP or attainment of any of the NAAQS, or any other applicable requirement of the Clean Air Act.

It is important to note that, while we describe the effect of the SIP revision as an increase in VOC emissions, we do not expect there to be an increase in overall VOC emissions within Ventura County over the period affected by the SIP revision, but only that the expected overall decrease would be slightly less with the SIP revision than would occur if the SIP revision were not approved.

Comment 3: Two commenters state that the approval and implementation of the SIP revision would be accomplished without substantial adverse impacts to air quality in Ventura County or to the health or safety of its citizens. This conclusion is founded on the commenters' belief that the actual VOC from pesticides are a very small percentage of all VOC in Ventura.

Response 3: As discussed in our proposed rule (see 73 FR 21885, April 23, 2008), we believe that the Revised Pesticide Element for Ventura would have an adverse impact on air quality in the short-term as it would allow greater VOC emissions, and thereby incrementally slow the downward trend in such emissions and associated ozone concentrations, as compared to fully achieving the commitments for pesticide-related emission reductions in the 1994 Ozone SIP. However, we have determined that the Revised Pesticide Element for Ventura would not interfere with RFP for the 8-hour ozone NAAQS based on our review of the RFP demonstration in the Ventura County 2007 AQMP that does not rely on the foregone pesticide-related emissions reductions. 3 Further, we note that, by its terms, the Revised Pesticide Element for Ventura phases out over four years (2008-2011), ensuring that it would not interfere with Ventura's ability to attain the 8-hour ozone NAAQS by the serious area deadline (i.e., June 15, 2013).

Comment 4: One commenter is concerned that EPA approval of the revision of the SIP would further delay efforts to reduce smog, of which pesticide application is a contributor, in the region and hence the area would continue to suffer from air pollution created by smog, which damages lung tissue, exacerbates asthma, reduces lung capacity, increases respiratory and cardiovascular hospital admissions, and increases school and work absenteeism.

Response 4: We acknowledge the commenter's concerns over the health effects associated with elevated ozone concentrations. As discussed in our proposal, we believe that the Revised Pesticide Element for Ventura would have an adverse impact on ozone air quality in the short-term as it would allow greater VOC emissions, and thereby incrementally slow the downward trend in such emissions and associated ozone concentrations, as compared to fully achieving the commitments for pesticide-related emission reductions in the 1994 Ozone SIP. Nonetheless, under the Clean Air Act, we must approve a SIP revision notwithstanding such impacts so long as all of the applicable requirements of the CAA (and applicable EPA regulations) are met. We have determined that the Revised Pesticide Element for Ventura meets all applicable CAA requirements and applicable EPA regulations. For instance, notwithstanding the temporary increase in VOC emissions associated with the Revised Pesticide Element for Ventura, we have concluded that it would not interfere with RFP for the 8-hour ozone NAAQS in that area based on our review of the RFP demonstration in the Ventura County 2007 AQMP, which does not rely on the foregone pesticide-related emissions reductions, nor would it interfere with expeditious attainment of the 8-hour ozone NAAQS, because the effect of the Revised Pesticide Element for Ventura diminishes each year through 2011 and phases out completely well before the serious area deadline (June 15, 2013).

Comment 5: Some of the commenters assert that there would be no “backsliding” from the overall 1994 SIP commitments for Ventura County, because all of the reactive organic gases (ROG) emission reductions committed to in the 1994 SIP would still be achieved. This assertion is based on the argument that a portion of the ROG reductions for Ventura County would come from other emission sources.

Response 5: As stated in our proposed rule, we do not agree with CARB that emissions reductions from California's mobile source emissions control program are “surplus” for 8-hour ozone planning purposes, and thus, we do not agree that such reductions are a substitute for the foregone emissions reductions that would occur under the Revised Pesticide Element for Ventura. See 73 FR 21885, at 21887 (April 23, 2008). Notwithstanding the temporary increase in VOC (equivalent to ROG) emissions resulting therefrom, we are approving the Revised Pesticide Element for Ventura because, for the reasons given in the proposed rule and this final rule, we find that it would not interfere with any requirement concerning attainment and RFP, or any other applicable requirement of the Clean Air Act.

Comment 6: One commenter argues that EPA cannot propose approval of the SIP revision because it has not approved the 8-hour ozone attainment demonstration plan and the 8-hour ozone reasonable further progress plan. It is suggested that approving the SIP revision before the attainment plan and reasonable further progress demonstration would make EPA's decision arbitrary and capricious because it has no basis to make the finding that the revision would not interfere with attainment.

Response 6: For our final action, we are not relying on an EPA-approved 8-hour ozone RFP or attainment demonstration for Ventura, but rather, are relying on our review of the RFP demonstration included in the Ventura County 2007 AQMP as a reasonable basis for our finding of non-interference with respect to RFP for the 8-hour ozone NAAQS under CAA section 110(l). We do not believe the attainment demonstration (approved or otherwise) to be necessary to this action because the effect of the Revised Pesticide Element for Ventura, by its terms, phases out completely by 2012, the year before the attainment deadline (June 15, 2013). 4 As discussed further below, we do not believe that an approved RFP demonstration is necessary to approve the Revised Pesticide Element for Ventura based on our preliminary review of the air quality analysis in the Ventura County 2007 AQMP that shows how the area will maintain reasonable further progress towards the 8-hour NAAQS without the benefit of VOC emissions reductions from pesticide use.

As explained in the proposed rule at 73 FR at 21888-21889, we found, based on our review of the air quality analysis contained therein, the RFP demonstration in the draft Ventura County 2007 AQMP to be a reasonable basis to propose approval of the Revised Pesticide Element for Ventura because the demonstration does not rely on VOC emission reductions from pesticide use to show RFP and the methods and emissions estimates used to demonstrate RFP in the AQMP appear reasonable. However, given the preliminary nature of our review of the RFP demonstration in the draft Ventura County 2007 AQMP, we concluded that it would be appropriate for us to wait for the final adopted AQMP to be submitted to us, and to consider any changes to the RFP demonstration as well as any public comments on the RFP demonstration submitted in connection with adoption of the plan at the county and State levels, and any public comments submitted in response to our April 23, 2008 proposed rule, prior to taking final action on the Revised Pesticide Element for Ventura. We described our approach, including our reliance on a draft SIP revision and our deferral of final action pending receipt of the adopted SIP revision including public comments, in our proposed rule at 73 FR 21889.

On June 27, 2008, CARB submitted the Final Ventura County 2007 Ventura County AQMP (May 13, 2008) as a revision to the California SIP. There were no public comments submitted either at the local district level or at the State level in relation to the AQMP's RFP demonstration, and the final adopted RFP demonstration is the same as the one in the Draft Final AQMP that was a basis for our proposed rule. We did not receive any comments on the substance of the RFP demonstration in the Ventura County 2007 AQMP in response to our April 23, 2008 proposed rule. Therefore, for the reasons set forth in the proposed rule, we continue to believe that the RFP demonstration in the 2007 Ventura County AQMP, even though it has not been approved, provides a reasonable basis for us to make our non-interference finding with respect to the Revised Pesticide Element for Ventura.

Comment 7: One commenter objected to EPA's finding that the SIP revision does not interfere with “any other applicable requirement” of the Act when, in the commenters' opinion, the proposed SIP revision directly interferes with a court order issued to remedy a violation of the SIP. Noting that the EPA has not made an attainment finding for the 1-hour ozone NAAQS in Ventura County, the commenter further contends that EPA cannot approve the SIP revision without making a finding that the revision does not interfere with attainment of the 1-hour ozone NAAQS by the applicable deadline.

Response 7: We do not agree with the commenter's contention that the existence of a court order enforcing the existing SIP precludes a finding of non-interference under CAA section 110(l) with respect to a SIP revision amending the portion of the existing SIP that is under the court order. EPA is not a party to the lawsuit from which the court order emanates, and the court order is not itself part of the SIP. Thus, the existence of a court order under these circumstances is not material to EPA's evaluation of the subject SIP revision under CAA section 110(l), and as set forth in the proposed rule and further discussed in this document, we conclude that the Revised Pesticide Element for Ventura would not interfere with any requirement concerning RFP or attainment of the NAAQS, or any other applicable requirement under the Clean Air Act. By the same token, however, our approval today of the Revised Pesticide Element for Ventura does not relieve any obligations under the court order, but, as noted in the proposed rule at 73 FR 21886, footnote 2, we expect that our approval of the SIP revision will allow California to seek a modification to the court order.

Second, the commenter's assertion that we cannot make a finding of non-interference for the Revised Pesticide Element for Ventura without having first evaluated whether the SIP revision would interfere with attainment of the 1-hour ozone NAAQS by the applicable 1-hour ozone attainment deadline is incorrect because the 1-hour ozone NAAQS has been revoked. By way of explanation, we note that, under the Clean Air Act Amendments of 1990, States were required to develop, adopt and submit for EPA approval various SIP revisions to provide for expeditious attainment of the 1-hour ozone NAAQS by no later than the applicable deadline. However, under the Act, attainment of the 1-hour ozone NAAQS by the deadline is not itself a separate requirement, although failure to do so, even now that the 1-hour ozone NAAQS has been revoked, may have certain consequences such as the triggering of contingency measures.

Nonetheless, we reviewed Ventura County's 1-hour ozone data contained in EPA's Air Quality System (AQS) database, the database in which quality-assured concentration data from the States' monitoring networks are recorded, and note that Ventura County appears to have attained the 1-hour ozone NAAQS by the applicable 1-hour ozone NAAQS deadline (2005) and appears to have continued to have been in attainment of the 1-hour ozone NAAQS since that time.

Furthermore, as noted in response to comment #2, above, while we describe the effect of the SIP revision as an increase in VOC emissions, we mean that there would be an increase in VOC emissions relative to what otherwise would occur. We do not mean that there would be an increase in overall VOC emissions within Ventura County over the period affected by the SIP revision. Rather, we expect that overall VOC emissions in Ventura County, with or without approval of this SIP revision, would decrease, reducing the potential for 1-hour ozone violations during the period affected by the SIP revision. See ROG emissions projections in table 4-6 on page 61 of the Ventura County 2007 AQMP. Thus, even if interference with attainment of the 1-hour NAAQS by the applicable deadline were material to this action, the AQS data provides us with the basis to reasonably conclude that the Revised Pesticide Element for Ventura would have no such effect. Our observations herein related to ambient 1-hour ozone concentrations are not tantamount to an attainment finding for Ventura County for the 1-hour ozone NAAQS. We expect to propose such a finding through a separate rulemaking in the near future.

Comment 8: One commenter claims the SIP revision relies on a new pesticide inventory, a part of the State Strategy for California's 2007 State Implementation Plan and the Draft Ventura 2007 Air Quality Management Plan that has not been approved by the EPA, and that the pesticide inventory lacks the appropriate scientific basis.

Response 8: California's Department of Pesticide Regulation (DPR) develops and continues to update baseline and current year inventories to evaluate pesticide VOC emissions. The refinement of emissions estimates is ongoing and necessary to better characterize and quantify emissions and control measures. We proposed to approve the Revised Pesticide Element for Ventura into the California SIP based on a finding of non-interference with 8-hour ozone RFP, which was itself based on a review of the Ventura County 2007 AQMP, and specifically, the RFP demonstration contained therein, and consideration of any related public comments. The AQMP includes an air quality analysis that demonstrates RFP toward attaining the 8-hour ozone NAAQS without the attribution of VOC emissions reductions from pesticides. The estimated VOC emissions from pesticide use are included in the baseline emissions estimates of the RFP demonstration, and if they were significantly underestimated, the RFP demonstration might be undermined. However, the RFP demonstration in the Ventura County 2007 AQMP shows a significant surplus in oxides of nitrogen (NO X ) (i.e., the other ozone precursor in addition to VOC) after meeting substitution and contingency needs. See page 73 of the AQMP. The surplus in NO X in the RFP milestone year of 2011, for example, amounts to roughly 150 tons per day. Thus, even if the estimate for VOCs from pesticides were double or triple the AQMP estimate of 4.82 tons per day, RFP would continue to be demonstrated based on the analysis in the Ventura County 2007 AQMP.

Comment 9: Commenters in support and in opposition to our proposed action assert that the existing SIP commitment from the Pesticide Element in the 1994 Ozone SIP is only to achieve a percentage reduction from the 1990 baseline inventory and not, in addition, a commitment to achieve a tonnage reduction as our proposed rule states. A commenter in opposition to the proposed approval contends that in presenting the commitment in a tons-per-day amount, EPA is overstepping its authority and amending a SIP, rather than reviewing it under the proper standards of section 110(k) of the Clean Air Act. Lastly, DPR clarifies the basis for certain VOC emissions estimates attributed to DPR and cited in the proposed rule.

Response 9 : Commenters and EPA both agree that the State's SIP commitment (from the 1994 Ozone SIP) with respect to VOC emissions reductions from use of pesticides in Ventura County is defined in terms of percent reduction from base year emissions. The point of disagreement is that EPA states in the proposed rule that the commitment is a two-fold commitment defined in terms of both a percent reduction and a tonnage reduction.

Our interpretation of the original Pesticide Element commitment as having both a tonnage reduction commitment in addition to the percent reduction commitment rests on general and specific grounds. First, EPA has traditionally found committal measures, such as the commitment to reduce VOC emissions in the Pesticide Element of the 1994 Ozone SIP, to be enforceable, and thus approvable, only if such measures identify the responsible party, adoption dates for rules, implementation dates, and emissions reductions in terms of emissions rates (such as tons per day) equal to the credit taken in the RFP or attainment plan for the committal measure. The tonnage specification provides the essential link between the committal measure and the RFP or attainment demonstration. See the general discussion of committal measures in EPA's final rule approving the 1994 Ozone SIP at 62 FR 1150 (January 8, 1997), at 1155-1157, and the specific discussion of the committal measures submitted as part of the 1994 Ozone SIP at 1157, column 3. In this case, the tonnage commitment (for 2005) links the original Pesticide Element commitment to the approved attainment demonstration for Ventura County. Each specific element of a committal measure, once the measure is approved by EPA, is considered to be enforceable. Thus, we believe that EPA would not have found the original Pesticide Element commitment for Ventura approvable unless the measure included the 2.37 tons per day reduction in pesticide VOC emissions in 2005 that was credited to the measure in the 1994 Ozone SIP.

Second of all, we find support for our conclusion in the California SIP in the form of the letter from James D. Boyd, Executive Officer, CARB, to David Howekamp, Director, Air and Toxics Division, EPA-Region IX, dated June 13, 1996 (“Boyd letter”), that includes an attachment C that specifies a 2.37 tons per day commitment in 2005 in Ventura County under the Pesticide Element of the 1994 Ozone SIP. The second page of the Boyd letter describes attachment C as follows: “In Attachment C, we provide summary spreadsheets identifying the reductions that the State committed to achieve and that we expect from the federal government, by measure, area, and milestone year. These summary tables contain the numbers used in the rate-of-progress and attainment demonstrations, as reflected in Volume IV of the California SIP.” The Boyd letter, explicitly including attachment C, is incorporated by reference into the California SIP at 40 CFR 52.220(c)(236)(i)(A)(1). The commenters cite attachment A of the Boyd letter (also referred to as the “Howekamp letter”) as evidence that the Pesticide Element only includes a percent reduction commitment, but we interpret the meaning of attachment A (“commitment is for a 20% reduction from 1990 levels by 2005 in each SIP area, except SD”) as clarifying that a percent reduction commitment (related to the Pesticide Element) did not, as set forth in EPA's proposed rule on the 1994 Ozone SIP, exist for the RFP milestone years in Ventura County but only existed for the attainment year (2005). In other words, we do not view attachment A as excluding the existence of a tonnage reduction commitment in 2005 as set forth in attachment C to the Boyd letter.

In any event, under the Revised Pesticide Element for Ventura, the original commitment from the 1994 Ozone SIP, whether defined exclusively in terms of percent reduction or also as a tonnage reduction, will be entirely restored by year 2012, and no VOC emissions reductions from pesticide use are relied upon in the 8-hour ozone RFP demonstration in the Ventura County 2007 AQMP. Thus, our rationale for approval of the Revised Pesticide Element for Ventura does not depend upon definitive resolution of the issue of whether the original commitment from the Pesticide Element of the 1994 Ozone SIP is two-fold or just a percent reduction commitment. Lastly, EPA appreciates DPR's clarification of the estimates of pesticide-related VOC emissions in years 1990 and 1991.

Comment 10 : One commenter alleges that EPA has not provided the public with the opportunity to comment on the basis for its proposed findings—on whether the SIP revision interferes with attainment, reasonable further progress, or any other requirement of the CAA, as required by section 110(l)— which violates the Administrative Procedures Act (APA). Along the same lines, the commenter contends that EPA has failed to provide relevant documents requested in violation of the Freedom of Information Act (FOIA), and that the denial of documents on which to base comments interfered with the opportunity to comment in a meaningful manner.

Response 10 : EPA has provided the public with the materials on which we have based our proposed action through creation of a docket for the rulemaking. In our proposed rule, at 73 FR 21886, we indicate where the index to the docket can be located and indicate how to access the items listed in the docket. Among the items so listed is Ventura County Air Pollution Control District's “Final Draft Ventura County 2007 Air Quality Management Plan (March 2008),” which contains the air quality analysis, specifically, the RFP demonstration, that we relied upon in the proposed rule for our finding that the Revised Pesticide Element for Ventura would not interfere with RFP for the 8-hour ozone NAAQS. See footnote 5 of the proposed rule, at 73 FR 21888.

For our final action, we are not relying on an EPA-approved 8-hour RFP demonstration for Ventura, but rather, are relying on our review of the RFP demonstration included in the Ventura County 2007 AQMP as a reasonable basis for our finding of non-interference with respect to RFP for the 8-hour ozone NAAQS under CAA section 110(l). We described our approach, including our reliance on a draft AQMP and our deferral of final action pending receipt and consideration of the adopted SIP revision including any related public comments, as well as any comments made in response to our April 23, 2008 proposed rule, in our proposed rule at 73 FR 21889.

There were no public comments submitted either at the local district level or at the State level in relation to the AQMP's RFP demonstration nor did we receive any comments on the substance of the RFP demonstration in the Ventura County 2007 AQMP in response to our April 23, 2008 proposed rule. Moreover, the final adopted RFP demonstration is the same as the one in the draft AQMP that was a basis for our proposed rule. Therefore, for the reasons set forth in the proposed rule, we continue to believe that the RFP demonstration in the Ventura County 2007 AQMP, even though it has not been approved, is a reasonable basis to make our non-interference finding with respect to the Revised Pesticide Element for Ventura. As explained above and because the RFP demonstration in the final Ventura County 2007 AQMP, that was submitted on June 27, 2008, is no different than the one available at the time we proposed action, we conclude that the public has had an opportunity to know and review the basis for our proposed action, consistent with the requirements of the Administrative Procedure Act (APA). We will be taking action on the final adopted Ventura County 2007 AQMP, as submitted by CARB on June 27, 2008, in a separate rulemaking.

With respect to the second part of this comment, we believe that the documents needed for an informed review of our proposed action were included in the docket during the public comment period. Additional documents have been provided in response to the FOIA request, but none of these additional documents were needed to review the substance and rationale of our proposed action in an informed manner.

Comment 11 : Some commenters question whether further, even total, implementation of Best Available Control Technology (BACT) could achieve the overall reductions commitment. The commenters indicate that even if all fumigant applicators adopt BACT, the emissions reduction commitment would still fail to be reached. They propose that the only way to reach the commitment level is through some combination of acreage reduction, application rate reduction, and shifting applications outside of the typical season.

Response 11 : In today's action, we are approving a SIP revision that relaxes in part, and temporarily, a commitment by the State of California to reduce VOC emissions from pesticide use in Ventura County. We are not taking action on the specific regulations promulgated by DPR, and that purportedly go beyond BACT-level of control, to fulfill that commitment. We acknowledge commenters' views concerning the feasibility of complying with DPR's regulations but have not based our approval action on the SIP revision on such considerations.

No comments were submitted that change our assessment of the Revised Pesticide Element for Ventura as set forth in our proposed rule. Therefore, pursuant to section 110(k)(3) of the CAA and for the reasons set forth in detail in EPA's proposed rule and in today's final rule, including the responses to comments, EPA is approving the revision to the California SIP submitted by the State of California on November 30, 2007 concerning the Pesticide Element for Ventura County. We find that the SIP revision is consistent with the requirements of the CAA and EPA's regulations.

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 16, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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 FFDCA, as amended by 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-2008-0254 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 September 16, 2008.

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-2008-0254, 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 Dr., 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 Facility telephone number is (703) 305-5805.

In the Federal Register of May 16, 2008 (73 FR 28461) (FRL-8361-6), EPA issued a notice pursuant to section 408 of FFDCA, 21 U.S.C. 346a, as amended by FQPA (Public Law 104-170), announcing the filing of a pesticide petition (PP 8E7315) by Rhodia, Inc. c/o SciReg, Inc., 12733 Director's Loop, Woodbridge, Va 22192.. The petition requested that 40 CFR 180.960 be amended by establishing an exemption from the requirement of a tolerance for residues of oxirane, 2-methyl-, polymer with oxirane, mono [2-[2-(2-butoxymethylethoxy)methylethoxy]methylethyl] ether; (CAS Reg. No. 926031-36-9). 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 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 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 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 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) and the exclusion criteria for identifying these low-risk polymers are described in 40 CFR 723.250(d). Oxirane, 2-methyl-, polymer with oxirane, mono [2-[2-(2-butoxymethylethoxy)methylethoxy]methylethyl] ether conforms to the definition of a polymer given in 40 CFR 723.250(b) and meets the following criteria that are used to identify low risk polymers:

1. The polymer is not a cationic polymer nor is it reasonably anticipated to become a cationic polymer in a natural aquatic environment.

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

3. The polymer does 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 polymer is neither designed nor can it be reasonably anticipated to substantially degrade, decompose, or depolymerize.

5. The polymer is 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 polymer is not a water absorbing polymer with a number average molecular weight (MW) greater than or equal to 10,000 daltons.

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

7. The polymer's number average MW of 3,000 daltons is greater than 1,000 and less than 10,000 daltons. The polymer contains less than 10% oligomeric material below MW 500 and less than 25% oligomeric material below MW 1,000, and the polymer does not contain any reactive functional groups.

Thus, oxirane, 2-methyl-, polymer with oxirane, mono [2-[2-(2-butoxymethylethoxy)methylethoxy]methylethyl] ether meets all the criteria for a polymer to be considered low risk under 40 CFR 723.250. Based on its conformance to the criteria in this unit, no mammalian toxicity is anticipated from dietary, inhalation, or dermal exposure to oxirane, 2-methyl-, polymer with oxirane, mono [2-[2-(2-butoxymethylethoxy)methylethoxy]methylethyl] ether.

For the purposes of assessing potential exposure under this exemption, EPA considered that oxirane, 2-methyl-, polymer with oxirane, mono [2-[2-(2-butoxymethylethoxy)methylethoxy]methylethyl] ether could be present in all raw and processed agricultural commodities and drinking water, and that non-occupational non-dietary exposure was possible. The number average MW of oxirane, 2-methyl-, polymer with oxirane, mono [2-[2-(2-butoxymethylethoxy)methylethoxy]methylethyl] ether is 3,000 daltons. Generally, a polymer of this size would be poorly absorbed through the intact gastrointestinal tract or through intact human skin. Since oxirane, 2-methyl-, polymer with oxirane, mono [2-[2-(2-butoxymethylethoxy)methylethoxy]methylethyl] ether 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 oxirane, 2-methyl-, polymer with oxirane, mono [2-[2-(2-butoxymethylethoxy)methylethoxy]methylethyl] ether 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 oxirane, 2-methyl-, polymer with oxirane, mono [2-[2-(2-butoxymethylethoxy)methylethoxy]methylethyl] ether and any other substances and Oxirane, 2-methyl-, polymer with oxirane, mono [2-[2-(2-butoxymethylethoxy)methylethoxy]methylethyl] ether does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that oxirane, 2-methyl-, polymer with oxirane, mono [2-[2-(2-butoxymethylethoxy)methylethoxy]methylethyl] ether has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see the policy statements released by EPA's Office of Pesticide Programs concerning common mechanism determinations and procedures for cumulating effects from substances found to have a common mechanism on EPA's Web site at http://www.epa.gov/pesticides/cumulative .

Section 408 of 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 oxirane, 2-methyl-, polymer with oxirane, mono [2-[2-(2-butoxymethylethoxy)methylethoxy]methylethyl] ether, 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 oxirane, 2-methyl-, polymer with oxirane, mono [2-[2-(2-butoxymethylethoxy)methylethoxy]methylethyl] ether.

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 oxirane, 2-methyl-, polymer with oxirane, mono [2-[2-(2-butoxymethylethoxy)methylethoxy]methylethyl] ether nor have any CODEX Maximum Residue Levels (MRLs) been established for any food crops at this time.

Accordingly, EPA finds that exempting residues of oxirane, 2-methyl-, polymer with oxirane, mono [2-[2-(2-butoxymethylethoxy)methylethoxy]methylethyl] ether 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 9, 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) (Public Law 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).

This is a summary of the Commission's Telecommunications Relay Services and Speech-To-Speech Services For Individuals With Hearing and Speech Disabilities; E911 Requirements For IP-Enabled Services Providers, Report and Order, document FCC 08-151, adopted June 11, 2008, and released June 24, 2008, in CG Docket No. 03-123 and WC Docket No. 05-196. Simultaneously with the Report and Order, the Commission also issued a Further Notice and Proposed Rulemaking ( FNPRM ) in CG Docket No. 03-123 and WC Docket No. 05-196, seeking comment on additional issues relating to the assignment and administration of ten-digit telephone numbers for Internet-based TRS. The Report and Order addresses issues arising from the following items: (1) Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities, Notice of Proposed Rulemaking ( VRS/IP Relay 911 NPRM ), CG Docket No. 03-123, document FCC 05-196, published at 71 FR 5221, February 1, 2006; (2) Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities, Declaratory Ruling and Further Notice of Proposed Rulemaking ( Interoperability Declaratory Ruling and FNPRM ), CG Docket No. 03-123, document FCC 06-57, published at 71 FR 30818 and 71 FR 30848, May 31, 2006; (3) Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities, Further Notice of Proposed Rulemaking ( IP Relay/VRS Misuse FNPRM ), CG Docket No. 03-123, document FCC 06-58, published at 71 FR 31131, June 1, 2006; (4) Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities; E911 Requirements For IP-Enabled Service Providers, Report and Order ( Interim Emergency Call Handling Order ), CG Docket No. 03-123 and WC Docket No. 05-196, document FCC 08-78, published at 73 FR 21252, April 21, 2008; and (5) Consumer and Governmental Affairs Bureau Seeks to Refresh Record on Assigning Internet Protocol (IP)-Based Telecommunications Relay Service (TRS) Users Ten-Digit Telephone Numbers Linked to North American Numbering Plan (NANP) and Related Issues, Public Notice ( Numbering PN ), CG Docket No. 03-123, document DA 08-607, published at 73 FR 16304, March 27, 2008.

The full text of document FCC 08-151 and copies of any subsequently filed documents in this matter will be available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. FCC 08-151 and copies of subsequently filed documents in this matter also may be purchased from the Commission's duplicating contractor at Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. Customers may contact the Commission's duplicating contractor at its Web site www.bcpiweb.com or by calling 1-800-378-3160. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice) or (202) 418-0432 (TTY). Document FCC 08-151 also can be downloaded in Word and Portable Document Format (PDF) at http://www.fcc.gov/cgb/dro/trs.html.

Document FCC 08-151 contains new and modified information collection requirements subject to the PRA. It will be submitted to OMB for review under section 3507 of the PRA. OMB, the general public, and other Federal agencies are invited to comment on the modified information collection requirements contained in this proceeding. Public and agency comments are due September 16, 2008. In addition, the Commission notes pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506 (c)(4), that the Commission previously sought specific comment on how it may “further reduce the information collection burden for small business concerns with fewer than 25 employees.”

1. In the Report and Order, the Commission adopts a system for assigning users of Internet-based TRS, specifically VRS and IP Relay, ten-digit telephone numbers linked to the NANP. This numbering system will further the functional equivalency mandate by ensuring that Internet-based TRS users can be reached by voice telephone users in the same way that voice telephone users are called. The measures the Commission adopts also are intended to ensure that emergency calls placed by Internet-based TRS users will be routed directly and automatically to the appropriate emergency services authorities by Internet-based TRS providers. Consistent with the Interim Emergency Call Handling Order, the Commission requires that the ten-digit numbering plan adopted in the Report and Order be implemented no later than December 31, 2008. In the accompanying FNPRM, the Commission seeks comment on additional issues relating to the assignment and administration of ten-digit telephone numbers for Internet-based TRS.

2. Currently, VRS users do not have a reliable or consistent means by which others can identify or reach them. In contrast to the voice telephone network, Internet-based relay services are not linked to a uniform numbering scheme. Instead of a ten-digit telephone number, VRS users are typically assigned a “dynamic” IP address. As a consequence, it is more difficult to place a relay call to a VRS user, as compared to placing a call to a voice telephone user, because the calling party must ascertain the VRS user's current IP address each time he or she wishes to place a call to that individual.

3. The voice telephone system is predicated on the assignment of ten-digit numbers to consumers, and the ability of any telephone user to reach a consumer by dialing that person's particular number. Further, because location and other identifying information is attached to each number, consumers can dial 911 and reach emergency services that can automatically determine the caller's location to respond to the emergency. The same holds true for consumers of the PSTN-based TRS. Voice telephone users can call these consumers via TRS if they know the consumer's ten-digit telephone number, which they provide to the customer assistant (CA) when making the relay call. These TRS consumers can also contact emergency services by either dialing 911 directly or by calling a TRS provider; in either case, the caller's location information will automatically be passed to the emergency personnel. This is presently not the case, however, with respect to consumers using the Internet-based forms of TRS. Voice telephone users can call an Internet-based TRS user only if the caller knows the TRS user's current Internet address (or a proxy therefor), and the Internet-based TRS user cannot call emergency services and have location information automatically transmitted. The Commission concludes that it has the authority to adopt a system for assigning persons using Internet-based TRS ten-digit telephone numbers linked to the NANP pursuant to sections 225 and 251 of the Communications Act of 1934, as amended (the Act).

4. In the March 19, 2008, Interim Emergency Call Handling Order, the Commission announced its intention to adopt a ten-digit numbering plan for Internet-based TRS in a future Commission order. That same day, and to ensure that the record reflects new technical, economic, and administrative developments related to the implementation of a 10-digit numbering system, the Commission's Consumer and Governmental Affairs Bureau (Bureau) issued the Numbering PN, inviting interested parties to refresh the record on issues relating to the assignment and administration of ten-digit numbering for Internet-based TRS users. The Bureau also sought to refresh the record on other issues related to numbering, including number resource conservation, and the application of the Commission's anti-“slamming” rules, customer proprietary network information (CPNI) rules, and local number portability (LNP) rules to Internet-based TRS providers.

5. In the Interim Emergency Call Handling Order, the Commission required Internet-based TRS providers to “accept and handle emergency calls” and to access, either directly or via a third party, a commercially available database that will allow the provider to determine an appropriate PSAP, designated statewide default answering point, or appropriate local emergency authority that corresponds to the caller's location, and to relay the call to that entity. The Commission also adopted several interim emergency call handling requirements for Internet-based relay services, finding that these measures are needed to facilitate access to emergency services for consumers of Internet-based relay services, pending the adoption of a longer term solution. The Commission also announced its intention to adopt in a forthcoming Commission order a Registered Location process, similar to that adopted by the Commission in the interconnected voice over Internet protocol (VoIP) context.

6. Adoption of a Uniform Ten-Digit Telephone Numbering System for Internet-based TRS. The Commission finds that utilization of NANP numbers will best achieve the goal of making Internet-based TRS functionally equivalent to traditional circuit switched telephony, and will provide Internet-based TRS users a reliable and consistent means by which they may receive calls from voice telephone users. The Commission therefore requires Internet-based TRS providers to assign Internet-based TRS users NANP telephone numbers. The Commission further requires Internet-based TRS providers to stop issuing “proxy” or “alias” numbers no later than December 31, 2008.

7. Full connectivity between Internet-based TRS and the PSTN cannot be achieved simply by assigning telephone numbers to Internet-based TRS users. The networks upon which the Internet portion of Internet-based TRS operates require IP addresses rather than NANP telephone numbers for routing. In order to allow calls to be appropriately routed and completed, a mechanism must be created for mapping the telephone numbers assigned to Internet-based TRS users to the IP addresses (or other appropriate endpoint identifiers) used by Internet-based TRS.

8. Number Acquisition and Assignment. The Commission finds that it is most expedient and consistent with the Commission's numbering policies for Internet-based TRS users to obtain NANP telephone numbers directly from their Internet-based TRS providers. Internet-based TRS providers may obtain such numbers either: (1) Directly from the North American Numbering Plan Administration (NANPA) or the Pooling Administrator (PA) if they are certificated as carriers and otherwise meet the criteria for obtaining numbers; or (2) through commercial arrangements with carriers ( i.e. , numbering partners). These are precisely the methods of obtaining numbers that are available to providers of interconnected VoIP service and their customers. Finally, Internet-based TRS users and providers of Internet-based TRS will enjoy the full benefits of LNP.

9. The Commission finds that the best process for Internet-based TRS users to obtain telephone numbers is directly from their Internet-based TRS providers. Such a process is functionally equivalent to the process by which subscribers to interconnected VoIP, Commercial Mobile Radio Service, and local exchange service obtain numbers. Indeed, even proponents of the neutral third-party process note that some consumers view their Internet-based TRS provider as if it were a telephone company and therefore expect that they should obtain numbering resources directly from the Internet-based TRS provider.

10. In light of the Commission's decision to have Internet-based TRS users obtain numbers directly from Internet-based TRS providers, the Commission must determine how Internet-based TRS providers are to obtain access to numbering resources. The record reflects three methods: (1) Directly from the NANPA or the PA, (2) from a neutral third party administrator established for the purpose, or (3) from numbering partners through commercial agreements.

11. Only carriers, absent a Commission waiver, may obtain numbering resources directly from the NANPA or the PA. Section 52.15(g)(2) of the Commission's rules limits access to the NANP numbering resources to those applicants that are (1) “authorized to provide service in the area for which the numbering resources are being requested” and (2) “[are] or will be capable of providing service within sixty (60) days of the numbering resources activation date.” 47 CFR 52.15(g)(2). Allowing only carriers to have direct access to NANP numbering resources helps to ensure that the numbers are used efficiently and to avoid number exhaust and also provides some control over who may access numbering databases and personnel. Thus, to the extent that a provider of Internet-based TRS is licensed or certificated as a carrier under the Act and relevant state law (as appropriate), it may obtain numbering resources directly from the NANPA or PA.

12. The Commission recognizes, however, that many, if not all, providers of Internet-based TRS will not be licensed or certificated as carriers. Internet-based TRS providers that have not obtained a license or certificate of public convenience and necessity from the relevant states or otherwise are not eligible to receive numbers directly from the NANPA or PA may make numbers available to their customers through commercial arrangements with carriers ( i.e. , numbering partners). This method has proven successful in the context of interconnected VoIP, is consistent with the Commission's numbering rules, and is cost effective. TRS providers can easily obtain numbers from certified carriers the same way interconnected VoIP providers obtain numbers today.

13. In any case, Internet-based TRS providers and their numbering partners shall be entitled to obtain and use numbering resources only to the extent they comply with the requirements of the Report and Order . The Commission also reminds all parties that telephone numbers are a public resource, not private property. They may not be bought or sold. They may, however, be provided as part of a package of services that includes, for example, interconnection, connectivity, or 911 service.

14. In light of record support for, and the demonstrated success of interconnected VoIP providers in obtaining NANP telephone numbers from carriers, the Commission declines to appoint a neutral third party to obtain numbers from the NANPA or from numbering partners for distribution to providers of Internet-based TRS or Internet-based TRS users. Allowing a third-party administrator direct access to numbering resources is not consistent with general Commission policy—as discussed above, absent a waiver, the Commission's rules allow only carriers direct access to NANP numbering resources. Further, the record reflects that a third-party administrator would add another layer of personnel, process, and cost in the number procurement process.

15. The Commission also finds that Internet-based TRS providers and their numbering partners are subject to the same LNP obligations, with the sole exception of contributing to meet shared numbering administration costs and LNP costs, as the Commission set forth in Telephone Number Requirements for IP Enabled Services Providers; Local Number Portability Porting Interval and Validation Requirements; IP-Enabled Services; Telephone Number Portability; CTIA Petitions for Declaratory Ruling on Wireline-Wireless Porting Issues; Final Regulatory Flexibility Analysis; Number Resource Optimization, Report and Order, Declaratory Ruling, Order on Remand, and Notice of Proposed Rulemaking, WC Docket Nos. 07-243, 07-244, 04-36; CC Docket Nos. 95-116, 99-200, document FCC 07-188, published at 73 FR 9463, February 21, 2008 and 73 FR 9507, February 21, 2008. The Commission expands the scope of the Commission's LNP rules to include Internet-based TRS providers, so that the full array of obligations relating to the porting of numbers from one service provider to another service provider are applicable when an Internet-based TRS user wishes to port a number, regardless of whether the service providers involved are carriers, interconnected VoIP providers, or Internet-based TRS providers. The Commission notes that the Internet-based TRS provider has an affirmative legal obligation to take all steps necessary to initiate or allow a port-in or port-out itself or through its numbering partner on behalf of the Internet-based TRS user, subject to a valid port request, without unreasonable delay or unreasonable procedures that have the effect of delaying or denying porting of the number. Moreover, Internet-based TRS providers and their numbering partners may not enter into agreements that would prohibit or unreasonably delay an Internet-based TRS user from porting between Internet-based TRS providers and will be subject to Commission enforcement action for any such violation of the Act and the Commission's LNP rules.

16. To the extent that an Internet-based TRS provider is licensed or certificated as a carrier, that carrier is eligible to obtain numbering resources directly from the NANPA, subject to all relevant rules and procedures applicable to carriers, including LNP requirements. Under these circumstances, the Internet-based TRS provider would not have a numbering partner, and would thus be solely responsible for compliance with the Commission rules at issue here.

17. Section 251(e)(2) of the Act provides that “[t]he cost of establishing telecommunications numbering administration arrangements and number portability shall be borne by all telecommunications carriers on a competitively neutral basis as determined by the Commission.” 47 U.S.C. 251(e)(2). Carriers and interconnected VoIP providers that benefit from LNP generally are required to contribute to meet shared LNP costs. The Commission declines to extend to Internet-based TRS providers the obligation to contribute to meet shared LNP costs at this time. Unlike other providers that benefit from LNP, providers of Internet-based TRS are not permitted to recover their costs from their end users. Rather, Internet-based TRS providers are compensated by the Interstate TRS Fund for the costs of providing relay service. Money in the Interstate TRS Fund is collected from various providers of telecommunications and related services—many of which already contribute to meet shared LNP costs. It makes little sense to require Internet-based TRS providers to contribute to defray shared LNP costs covered by the same providers that ultimately provide the money Internet-based TRS providers will use to make such contributions.

18. The Commission finds that Internet-based TRS users should be assigned geographically appropriate NANP numbers, as happens today for hearing users. The Commission notes that there may be unusual and limited circumstances in which an Internet-based TRS provider may not be able to obtain a geographically appropriate number for a particular end user. While the Commission does not expect this to be a common occurrence, Internet-based TRS providers may temporarily employ suitable workarounds in such circumstances, such as the assignment of a number which is reasonably close to the Internet-based TRS user's rate center, or the use of remote call forwarding. Such workarounds may be employed only until a geographically appropriate number becomes available, unless the end user chooses to retain the originally assigned number.

19. “Default Provider” Registration. Every provider of Internet-based TRS is required to provide Internet-based TRS users with the capability to register with that Internet-based TRS provider as a “default provider” and provide or port for that user a NANP telephone number. Such registration is required: (1) To allow the Internet-based TRS provider to take steps to associate the Internet-based TRS user's telephone number with their IP address to allow for the routing and completion of calls; (2) to facilitate the provision of 911 service; and (3) to facilitate the implementation of appropriate network security measures.

20. The Internet-based TRS provider with which an Internet-based TRS user has registered will serve as the Internet-based TRS user's “default provider.” For all Internet-based TRS users, all inbound and outbound calls will, by default, be routed through the default provider. Such a default provider arrangement is functionally equivalent to services provided on the PSTN and via interconnected VoIP. For example, voice telephone users that subscribe to a particular carrier for long distance service will make all of their long distance calls on that carrier's network unless they choose to “dial around” to an alternative long distance provider. Likewise, calls made to and from an Internet-based TRS user will be handled by the default provider, unless the calling Internet-based TRS user specifically “dials around” in order to utilize an alternative provider. Individuals calling an Internet-based TRS user likewise will have the option of “dialing around” an Internet-based TRS user's default provider in order to utilize the services of a different TRS provider. An Internet-based TRS user may select and register with a new default provider at any time and have his or her number ported to that provider.

21. As of December 31, 2008, Internet-based TRS providers must, prior to the initiation of service for an individual that has not previously utilized Internet-based TRS, register that new Internet-based TRS user, provide that user with a ten-digit NANP telephone number, obtain that user's Registered Location, and fulfill all other requirements set forth in the Report and Order that pertain to Registered Internet-based TRS Users. The Commission's numbering plan must be implemented such that ten-digit numbers are available to Internet-based TRS users no later than December 31, 2008. The Commission recognizes, however, that every existing Internet-based TRS user will not be able to register with a default provider on that day. The Commission therefore recognizes that the Commission must adopt a registration period for the existing base of Internet-based TRS users to migrate to the new numbering plan.

22. Centralized Numbering Directory Mechanism. The Commission finds that the best centralized numbering directory mechanism shall: (1) Be provisioned with Uniform Resource Identifiers (URIs) that contain, inter alia, end-user IP addresses for VRS and domain names and user names for IP Relay; (2) be provisioned by Internet-based TRS providers on behalf of their Registered Internet-based TRS Users; and (3) limit central database access to Internet-based TRS providers. The Commission further finds that industry-standard DNS and ENUM technology is well-suited for implementing and querying the database.

23. The primary purpose of the central database will be to map each Internet-based TRS user's NANP telephone number to his or her end device. This can be accomplished by: (1) Provisioning the database with each Internet-based TRS user's IP address (either alone or as part of a URI); or (2) provisioning the database with URIs that contain domain names and user names—such as an instant-message service and screen-name—that can be subsequently resolved to reach the user's end device.

24. The Commission finds that the central database should be provisioned with URIs containing IP addresses for VRS users. Provisioning URIs containing IP addresses to the central database will result in a simplified, and more efficient, call setup process by eliminating the need to query an Internet-based TRS user's default provider before completing every call. Further, the use of a domain name in the URI normally would create a dependency on the global Domain Name System and thereby introduce those additional security vulnerability issues associated with the global DNS. Finally, eliminating the terminating party's default provider from the call flow also improves Internet-based TRS user privacy by limiting the number of Internet-based TRS providers that have access to call signaling data, and limits any ability the terminating party's default provider might have to block or otherwise degrade calls initiated through a competitor.

25. The Commission requires Internet-based TRS providers to provision routing information directly to the central database. Default providers must obtain current routing information, including URIs containing IP addresses or domain names and user names, from their Registered Internet-based TRS Users, provision such information to the central database, and maintain it in their internal databases and in the central database. Conversely, Internet-based TRS providers (and, to the extent necessary, their numbering partners) must take such steps as are necessary to cease acquiring routing information from any Internet-based TRS user that ports his or her number to another provider or otherwise selects a new default provider. In addition, Internet-based TRS providers and their numbering partners also must communicate among themselves as necessary to ensure that only the default provider provisions routing information to the central database, and that providers other than the default provider are aware that they must query the central database in order to obtain accurate routing information for a particular user of Internet-based TRS. In order to ensure that the telephone numbers of Internet-based TRS users are fully portable, that their devices are interoperable, and their privacy is protected, if an Internet-based TRS provider cannot provide service to a particular user in the manner described in the Report and Order, the Internet-based TRS provider must not provide service to that user without seeking prior approval of the Commission.

26. The Commission concludes that only Internet-based TRS providers will be authorized to query the central database for the purpose of obtaining information from the database to complete calls.

27. The Commission further concludes that building, maintaining, and operating the central database will best be done by a neutral third party administrator under contract with the Commission and compensated through the Interstate TRS Fund. The neutral database administrator must be selected, and must construct the database, work with industry to populate the database, test the functionality of the database, and be prepared to support ten-digit numbers for Internet-based TRS users by December 31, 2008.

28. In the interest of time, the Commission is not referring this issue to the North American Numbering Council (NANC), as the Commission has for past numbering contracts. Rather, the Commission delegates authority to the Office of the Managing Director (Managing Director), with the assistance of the Wireline Competition Bureau, the Consumer and Governmental Affairs Bureau, and the Office of General Counsel, to select the neutral administrator based on a competitive bidding process.

29. The Commission concludes that: (1) The neutral administrator must be a non-governmental entity that is impartial and is not an affiliate of any Internet-based TRS provider; (2) the neutral administrator and any affiliate may not issue a majority of its debt to, nor derive a majority of its revenues from, any Internet-based TRS provider; and (3) notwithstanding the neutrality criteria set forth in (1) and (2) above, the neutral administrator may be determined to be or not to be subject to undue influence by parties with a vested interest in the outcome of TRS-related numbering administration and activities. Any subcontractor that performs functions of the neutral administrator must also meet these neutrality criteria.

30. Emergency Calling Handling Requirement. The Commission stated in the Interim Emergency Call Handling Order the Commission's belief that the use of a Registered Location process, similar to that adopted in the VoIP 911 Order, constitutes an additional critical component of an E911 solution for Internet-based TRS providers, so that a CA may promptly determine an appropriate PSAP, designated statewide default answering point, or appropriate local emergency authority to call to respond to the emergency. Accordingly, as the Commission required of all interconnected VoIP providers, the Commission requires that all Internet-based TRS providers obtain or have access to consumer location information for the purposes of emergency calling requirements. The Commission also requires all Internet-based TRS providers to obtain from their Registered Internet-based TRS users their physical location, and the Commission modifies the call handling requirements adopted in the Interim Emergency Call Handling Order to reflect the adoption of a Registered Location requirement.

31. Registered Location Requirement. The Commission recognizes that it currently is not always technologically feasible for providers of Internet-based TRS to automatically determine the location of their end users without end users' active cooperation. The Commission therefore requires each provider of Internet-based TRS to obtain location information from each of their Registered Internet-based TRS users. Specifically, providers of Internet-based TRS must obtain from each of their Registered Internet-based TRS users, prior to the initiation of service, the physical location at which the service will first be utilized. The most recent location provided to an Internet-based TRS provider by a Registered Internet-based TRS user is the “Registered Location.” Internet-based TRS providers can comply with this requirement directly or by utilizing the services of a third party. Furthermore, providers of Internet-based TRS that can be utilized from more than one physical location must provide their Registered Internet-based TRS users one or more methods of updating information regarding the Registered Internet-based TRS user's physical location. Although the Commission declines to specify any particular method, the Commission requires that any method utilized allow a Registered Internet-based TRS user to update his or her Registered Location at will and in a timely manner, including at least one option that requires use only of the CPE necessary to access the Internet-based TRS. Further, Internet-based TRS providers may not charge users to update their Registered Location, as this would discourage Registered Internet-based TRS users from doing so and therefore undermine this solution.

32. The Interim Emergency Call Handling Order required Internet-based TRS providers to “request, at the beginning of every emergency call, the caller's name and location information.” Internet-based TRS providers no longer are required to request such information at the beginning of an emergency call if the Internet-based TRS provider has, or has access to, a Registered Location for the caller.

33. Routing 911 Calls. The Interim Emergency Call Handling Order permitted Internet-based TRS providers to route 911 calls to PSAPs' ten-digit administrative lines pending adoption of a Registered Location requirement. As of December 31, 2008, the Commission requires that an Internet-based TRS provider must transmit all 911 and E911 calls, as well as a call back number, the name of the relay provider, the CA's identification number, and the caller's Registered Location for each call, to the PSAP, designated statewide default answering point, or appropriate local emergency authority that serves the caller's Registered Location and that has been designated for telecommunications carriers under § 64.3001 of the Commission's rules. These calls must be routed through the use of ANI and, if necessary, pseudo-ANI, via the dedicated Wireline E911 Network, and the Registered Location must be available from or through the ALI Database.

34. 911 Service Providers. The Commission continues to expect that Internet-based TRS providers will be able to use much of the same infrastructure and technology that is already in place for the delivery of 911 and E911 calls by interconnected VoIP service providers. The Commission recognizes that, because Internet-based TRS providers will be able to choose from among multiple providers of 911 related services, in instances in which an Internet-based TRS user places an emergency call through an Internet-based TRS provider other than the Internet-based TRS user's default provider, the alternative provider may not have access to the Internet-based TRS user's Registered Location information. The Commission notes, however, that providers must prioritize and answer emergency calls in accordance with the requirements set forth in the Interim Emergency Call Handling Order. Further, because of the importance of emergency call handling, providers must ensure adequate staffing of emergency call handling processes so that CAs are not required to disconnect non-emergency calls in order to process emergency calls. In light of these requirements and the nature of emergency calls, the Commission expects that most, if not all, emergency calls will be dialed via an Internet-based TRS user's default provider and thus will have associated Registered Locations. Further, in light of the importance of access to emergency services for relay users, the Commission asks in the accompanying FNPRM whether the Commission should take other steps in order to ensure that emergency calls are handled in an appropriate and expeditious manner.

35. Consumer Outreach and Education. Because substantial consumer outreach efforts will be needed to ensure a seamless transition to a ten-digit numbering system and to ensure the successful implementation of the Registered Location requirement adopted herein, the Commission requires each Internet-based TRS provider, upon the effective date of the Report and Order, to include an additional advisory on its Web site and in any promotional materials addressing the new requirements adopted herein. At a minimum, the advisory must address the following issues: (1) The process by which Internet-based TRS users may obtain ten-digit telephone numbers, including a brief summary of the numbering assignment and administration processes adopted herein; (2) the portability of ten-digit telephone numbers assigned to Internet-based TRS users; (3) the process by which persons using Internet-based forms of TRS may submit, update, and confirm receipt by the provider of their Registered Location information; and (4) an explanation emphasizing the importance of maintaining accurate, up-to-date Registered Location information with the user's default provider in the event that the individual places an emergency call via an Internet-based relay service. The Commission also requires Internet-based TRS providers to obtain and keep a record of affirmative acknowledgement by every user assigned a ten-digit telephone number of having received and understood the advisory described above.

36. The Commission also directs the Consumer and Governmental Affairs Bureau to issue a consumer advisory to TRS users summarizing the requirements and obligations set forth in the Report and Order, and to disseminate the advisory through the Consumer Information Registry.

37. IP Relay Fraud. Although Internet-based relay services have proven to be enormously popular with consumers, these services (and particularly IP Relay) may be more susceptible to misuse than other forms of TRS. For example, the Commission has received complaints and anecdotal evidence that persons without a hearing or speech disability have misused IP Relay to defraud merchants by making purchases over the telephone using stolen, fake, or otherwise invalid credit cards. See IP Relay/VRS FNPRM. This misuse is enabled both by Internet-based TRS providers' current difficulty in determining with certainty the geographic location of their users and by IP Relay providers' inability to determine the identity of any particular user (because an IP Relay CA only receives the text of a user's message). In other words, IP Relay affords the user a degree of anonymity that is generally not possible with PSTN-based relay calls. This misuse harms both the merchants who are victimized and legitimate IP Relay users who may no longer be able to convince merchants to take their calls or accept their orders for merchandise. In addition, the misuse of IP Relay by hearing callers poses an added burden on the Fund—a burden ultimately borne by all consumers. The Commission believes that registration of Internet-based TRS users with a default provider and provision of a Registered Location should reduce the misuse of IP Relay by persons seeking anonymity to make fraudulent credit card purchases and engage in other wrongdoing.

38. Cost Recovery Issues. Section 225 of the Communications Act creates a cost recovery regime whereby TRS providers are compensated for their reasonable costs of providing service in compliance with the TRS regulations. The Commission has explained that “for purposes of determining the `reasonable' costs that may be recovered * * *, the costs must relate to the provision of service in compliance with the applicable non-waived [TRS] mandatory minimum standards.” Therefore, because the Commission now requires Internet-based TRS providers to offer ten-digit numbering and E911 services, providers of these services are entitled to recover their reasonable costs of complying with the new requirements as set forth in the Report and Order. The Commission will require that such costs be submitted every three months, beginning three months after the release date of the Report and Order. Costs submitted must be for those costs actually incurred during the prior three-month period. The TRS Fund Administrator, and the Commission, shall review submitted costs and may request supporting documentation to verify the expenses claimed, and may also disallow unreasonable costs. The Commission will permit such filings until such time as new compensation rates are adopted that include the costs of complying with the requirements adopted herein, or the Commission otherwise re-addresses this issue.

39. Submitted costs may include those additional costs incurred by a provider that directly relate to: (1) Ensuring that database information is properly and timely updated and maintained; (2) processing and transmitting calls made to ten-digit numbers assigned pursuant to the Report and Order; (3) routing emergency calls to an appropriate PSAP; (4) other implementation related tasks directly related to facilitating ten-digit numbering and emergency call handling; and (5) consumer outreach and education related to the requirements and services adopted in the Report and Order. These costs do not include, however, costs relating to assigning numbers to the Internet-based TRS users nor costs relating to number portability. Because voice telephone users generally bear these costs, the Commission seeks comment in the FNPRM on whether Internet-based TRS users or the Fund should bear these costs. The Commission also reminds Internet-based TRS providers, however, that these costs may not include costs related to facilitating non-TRS peer-to-peer (or video-to-video) calls.

40. The Commission authorizes the TRS Fund Administrator to pay the reasonable costs of providing necessary services consistent with the Report and Order directly to the database administrator rather than funnel the funding indirectly through providers. Finally, the Commission notes that to the extent the costs necessitated by the requirements adopted in the Report and Order may require an adjustment to the Fund size, and therefore the carrier contribution factor, the Commission expects the TRS Fund Administrator to monitor payments made from the Fund in connection with the Report and Order and to recommend to the Commission, if and when appropriate, that the Fund size be adjusted.

41. Timeline and Benchmarks. By the Report and Order, the Commission has met its commitment to complete a final order on a ten-digit numbering plan in the second quarter of this year. Recognizing that Internet-based TRS providers and the neutral third-party administrator discussed above will require time to implement the Report and Order, the Commission requires, consistent with the Interim Emergency Call Handling Order, that the ten-digit numbering plan be implemented such that ten-digit numbers are available to end users no later than December 31, 2008. In order to ensure this deadline is met, the Commission authorizes the Managing Director to include in the neutral third-party administration contract such benchmarks as are necessary to meet the implementation deadline.

42. As a further means of ensuring that the Commission's implementation deadline is met, and recognizing that detailed implementation issues must be finalized prior to the implementation deadline, the Commission hereby directs the Managing Director to include in the neutral third-party administration contract the requirement to refer all implementation disputes that it is unable to resolve in a reasonable time to the Chief, Wireline Competition Bureau. The Commission further authorizes the Managing Director, if so requested by the Chief, Wireline Competition Bureau, to retain a technical advisor that will provide such assistance as the Chief, Wireline Competition Bureau, may require to resolve such disputes.

43. The Regulatory Flexibility Act of 1980, as amended (RFA), see 5 U.S.C. 603, requires that a regulatory flexibility analysis be prepared for rulemaking proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” 5 U.S.C. 605(b). The RFA generally defines “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” 5 U.S.C. 601(6). In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. 5 U.S.C. 601(3). A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA). 15 U.S.C. 632.

44. In the Report and Order, the Commission adopts a system for assigning ten-digit telephone numbers linked to the NANP to persons using Internet-based TRS. The Report and Order will further the functional equivalency of TRS mandated in Title IV of the Americans with Disabilities Act. The Commission finds that utilization of NANP numbers will achieve the goal of making Internet-based TRS functionally equivalent to traditional circuit switched telephony, and will provide Internet-based TRS users a reliable and consistent means by which they may receive calls from voice telephone users in the same way that voice telephone users are called.

45. Under the Report and Order, each Internet-based TRS provider must provide Internet-based TRS users with the capability to register with that provider as a “default” provider. Upon a user's registration, each provider must either facilitate the user's valid number portability request or, if the user does not wish to port a number, assign that user a geographically appropriate NANP telephone number. Each provider also must route and deliver all of its Registered Internet-based TRS users' inbound and outbound calls unless the user chooses to place a call with, or receives a call from, an alternate provider. Further, the Report and Order requires Internet-based TRS providers to obtain from each of their Registered Internet-based TRS users, prior to the initiation of service, the physical location at which the service will first be utilized. In addition, providers of Internet-based TRS that can be utilized from more than one physical location must provide the registered user one or more methods of updating the user's physical location. As noted in the Report and Order, the numbering system adopted will enable individuals with hearing and speech disabilities using Internet-based TRS access to emergency services.

46. Specifically, the Report and Order is intended to ensure that emergency calls placed by Internet-based TRS users will be routed directly and automatically to the appropriate emergency services authorities by Internet-based TRS providers. The Commission also requires each Internet-based TRS provider to include an advisory on its Web site and in any promotional materials addressing the new requirements adopted in the Report and Order. Providers must obtain and keep a record of affirmative acknowledgement by every user assigned a number of having received and understood this advisory. The Commission also states its belief that instituting a numbering system and a Registered Location requirement, as provided in the Report and Order , will reduce the misuse of IP Relay by persons seeking to use this service for fraudulent purposes. Finally, the Report and Order concludes that providers will be compensated from the Interstate TRS Fund for their reasonable actual costs of complying with the new rules adopted therein.

47. To the extent that all Internet-based TRS providers, including small entities, will be eligible to receive compensation from the Interstate TRS Fund for their reasonable costs of complying with these numbering and Registered Location requirements, the Commission finds that these requirements will not have a significant economic impact on a substantial number of small entities. Further, the Commission believes that allowing providers until December 31, 2008, to implement the ten-digit numbering plan adopted in the Report and Order is a reasonable timeframe for both large and small providers. The Commission also authorizes the Managing Director to include in the third-party administrator contract the requirement to refer all implementation disputes that it is unable to resolve in a reasonable time to the Chief of the Wireline Competition Bureau for resolution, which will ease burdens on providers, including small entities. For all of these reasons, the Commission concludes that these measures will not have a significant economic impact on a substantial number of small entities, because each small business will receive financial compensation for reasonable costs incurred rather than absorb an uncompensated financial loss or hardship.

48. With regard to whether a substantial number of small entities may be affected by the requirements adopted in the Report and Order, the Commission notes that, of the 11 providers affected by the Report and Order, only three meet the definition of a small entity. The SBA has developed a small business size standard for Wired Telecommunications Carriers, which consists of all such firms having 1,500 or fewer employees. 13 CFR 121.201, NAICS code 517110. Currently, eleven providers receive compensation from the Interstate TRS Fund for providing VRS, IP Relay and IP CTS: AT&T Corp.; CSDVRS; CAC; GoAmerica; Hamilton Relay, Inc.; Hands On; Healinc; Nordia Inc.; Snap Telecommunications, Inc; Sorenson; and Sprint. Because only three of the providers affected by the Report and Order are deemed to be small entities under the SBA's small business size standard, the Commission concludes that the number of small entities affected by the Commission's decision in the Report and Order is not substantial. Moreover, given that all affected providers, including the three that are deemed to be small entities under the SBA's standard, will be entitled to receive prompt reimbursement for their reasonable costs of compliance, the Commission concludes that the Report and Order will not have a significant economic impact on these small entities.

49. Therefore, for all of the reasons stated above, the Commission certifies that the requirements of the Report and Order will not have a significant economic impact on a substantial number of small entities.

The Commission will send a copy of the Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

Pursuant to sections 1, 2, 4(i), 4(j), 225, 251, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 154(j), 225, 251, and 303(r), the Report and Order is adopted .

Pursuant to sections 1, 2, 4(i), 4(j), 225, 251, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 154(j), 225, 251, and 303(r), parts 52 and 64 of the Commission's rules, 47 CFR parts 52 and 64, are amended .

The Report and Order shall be effective August 18, 2008 and all requirements set forth in the Report and Order must be implemented by December 31, 2008, except for the information collections, which require approval by OMB under the PRA and which shall become effective after the Commission publishes a notice in the Federal Register announcing such approval and the relevant effective date(s).

The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, SHALL SEND a copy of the Report and Order , including the Final Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business Administration.

This Federal Register document is also accessible at the Office of the Federal Register : www.gpoaccess.gov/fr/ .

A final rule for Amendment 14 was published in the Federal Register on April 4, 2008 (73 FR 18450), and the requirements of that final rule, other than the collection-of-information requirements, were effective on April 1, 2008. Because OMB approval of the collection-of-information requirements had not been received by the date that final rule was published, the effective date of the associated permitting and reporting requirements in that rule was delayed. OMB approved the collection-of-information requirements contained in the final rule on July 3, 2008. Accordingly, this final rule makes effective the collection-of-information requirements at §§ 665.13, 665.14, and 665.61, which were amended in the April 4, 2008, final rule.

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

Notwithstanding any other provision of the 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 Paperwork Reduction Act (PRA), unless that collection of information displays a currently valid OMB control number.

This final rule contains new collection-of-information requirements subject to the PRA under OMB Control Number 0648-0577. The public reporting burden for these requirements is estimated to be 20 minutes for a new permit application, two (2) hours for a permit appeal, and 20 minutes for completing a fishing logbook each day. These estimates include 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 the burden, to William L. Robinson (see ADDRESSES ), or by e-mail to David_Rostker@omb.eop.gov , or fax to 202-395-7285.