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 October 18, 2008, the Reserve Banks will transfer the check-processing operations of the Cincinnati branch office of the Federal Reserve Bank of Cleveland to the head office of the Federal Reserve Bank of Cleveland. As a result of this change, some checks that are drawn on and deposited at banks located in the Cincinnati and Cleveland 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 list of routing symbols in appendix A associated with the Federal Reserve Bank of Cleveland to reflect the transfer of check-processing operations from the Cincinnati branch office to the head office of the Federal Reserve Bank of Cleveland. To coincide with the effective date of the underlying check-processing changes, the amendments to appendix A are effective October 18, 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 Cincinnati branch office of the Federal Reserve Bank of Cleveland and reassign the routing symbols listed under that office to the head office of the Federal Reserve Bank of Cleveland. 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 November 8, 2007, the FAA published a final rule to establish part 26 in the Code of Federal Regulations (72 FR 63364). The heading for subpart B of that part contained the phrase “aging systems” instead of the intended “airplane systems.” This final rule corrects that error.

Because this action corrects merely a typographical error, the FAA finds that notice and public comment under 5 U.S.C. 553(b) is unnecessary. For the same reason, the FAA finds that good cause exists under 5 U.S.C. 553(d) for making this rule effective upon publication.

Discussion

On May 25, 2007, the FAA issued AD 2007-12-03, amendment 39-15081 (72 FR 30968, June 5, 2007). That AD applies to certain Bombardier Model DHC-8-400 series airplanes. That AD requires revising the airplane flight manual (AFM) to include procedures for pulling the “HYD PWR XFER” circuit breaker in the event of the loss of all hydraulic fluid in the No. 1 or No. 2 hydraulic system. That AD resulted from low No. 2 hydraulic pressure in-flight, which caused the power transfer unit (PTU) to overspeed, and the fluid flow within the No. 1 hydraulic system to increase. The actions specified in that AD are intended to prevent possible loss of both the No. 1 and No. 2 hydraulic systems, resulting in the potential loss of several functions essential for safe flight and landing of the airplane.

Since we issued AD 2007-12-03, Transport Canada Civil Aviation (TCCA), which is the airworthiness authority for Canada, advises that it has received an additional report of loss of the No. 2 hydraulic system on a Model DHC-8-402 airplane, causing the PTU to overspeed, increasing the fluid flow within the No. 1 hydraulic system. Investigation revealed that, after the caution light for the No. 2 hydraulic system had illuminated, the PTU was left in the “ON” position. The flightcrew had followed AFM procedures, as specified in the AFM revision required by AD 2007-12-03, and did not pull the circuit breaker because the hydraulic fluid from the No. 2 system was not completely depleted.

Therefore, we find that the AFM revision required by AD 2007-12-03 does not adequately prevent possible loss of both the No. 1 and No. 2 hydraulic systems, resulting in the potential loss of several functions essential for safe flight and landing of the airplane. The hydraulic power transfer system on the Model DHC-8-400 and DHC-8-401 airplanes are similar to those on the affected Model DHC-8-402 airplanes. Therefore, all of the models are subject to the same unsafe condition.

Bombardier has issued the temporary amendments specified in the following table (AD 2007-12-03 refers to Issue 1 of Bombardier Temporary Amendments 13, all dated July 14, 2005, as appropriate sources of service information for accomplishing the required AFM revision).

The procedures specified in Issue 3 for addressing the loss of all hydraulic fluid in the No. 1 and No. 2 hydraulic systems are identical to those specified in Issue 1. Issue 3 has been revised to include procedures for ensuring that the PTU is disabled when the fluid level in the No. 2 hydraulic system falls to a value where the PTU becomes a hazard to the No. 1 hydraulic system. This is achieved by ensuring that the “PTU CNTRL” switch is Normal, the “PTU CNTRL ON” advisory light is out, and the “HYD PWR XFER” circuit breaker is pulled in the event of the illumination of the “#2 HYD ISO VALVE” caution light. TCCA previously mandated Issue 1 (“or later”) of the service information and issued Canadian airworthiness directive CF-2006-08, dated April 26, 2006 (referred to after this as “the MCAI”), to ensure the continued airworthiness of these airplanes in Canada.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.

Therefore, we are issuing this AD to supersede AD 2007-12-03. This new AD retains the requirements of the existing AD. This AD also requires a revision to the Normal and Abnormal Procedures section of the AFM to include procedures for ensuring that the “PTU CNTRL” switch is Normal, the “PTU CNTRL ON” advisory light is out, and the “HYD PWR XFER” circuit breaker is pulled in the event of the illumination of the “#2 HYD ISO VALVE” caution light.

In addition, AD 2007-12-03 specifies to revise the Limitations section of the AFM; however, this AD specifies to revise the Normal and Abnormal Procedures section.

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

Fluid loss in the No. 2 hydraulic system causing a PTU overspeed and increased fluid flow in the No. 1 hydraulic system could cause the loss of several functions essential for safe flight and landing of the airplane. Because of our requirement to promote safe flight of civil aircraft, and thus the critical need to ensure the proper functioning of the No.1 and No. 2 hydraulic systems and the short compliance time involved with this action, this AD must be issued immediately.

Because an unsafe condition exists that requires the immediate adoption of this AD, we find that notice and opportunity for prior public comment hereon are impracticable and that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments before it becomes effective. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2008-0864; Directorate Identifier 2008-NM-120-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this AD.

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

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

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

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

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

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

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

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

The EASA, which is the Technical Agent for the Member States of the European Community, has issued EASA Emergency AD No. 2007-0072R1, dated July 6, 2007 (referred to after this as “the MCAI”), to correct an unsafe condition for the PZL Model W-3A helicopters. The MCAI states: “In PZL W-3A helicopter S/N 37.07.05, and previously also in the PZL W-3AS model helicopters, leakage was found in the pipe 37.59.006.00.00 installed in the pressure line of hydraulic system 2, in the part between the hydraulic block and the ground hydraulic unit panel. The hydraulic system in the part between hydraulic blocks and the ground hydraulic unit panel is used only during periodical inspections, for the performance of which it is required to use the hydraulic power unit. This condition, if not corrected, could result in a fire hazard.” You may obtain further information by examining the MCAI and any related service information in the AD docket.

PZL has issued Mandatory Bulletin No. BO-37-07-192, dated January 12, 2007, and Technical Bulletin No. BT-37-07-196, dated April 24, 2007. The actions described in the MCAI are intended to correct the same unsafe condition as that identified in the service information.

This helicopter model has been approved by the aviation authority of Poland, and is approved for operation in the United States. Pursuant to our bilateral agreement with Poland, they have notified us of the unsafe condition described in the MCAI. We are issuing this AD because we evaluated all information and determined the unsafe condition exists and is likely to exist or develop on other helicopters of the same type design.

There are no products of this type currently registered in the United States. However, this rule is necessary to ensure that the described unsafe condition is addressed if any of these products are placed on the U.S. Registry in the future.

We have reviewed the MCAI and related service information and, in general, agree with their substance. This AD differs from the MCAI in that it:

• Only applies to Model W-3A helicopters because the Model W-3AS helicopters do not have a U.S. type certificate; and

• Does not allow compliance to be completed in accordance with “later approved revisions” of the service information.

These differences are highlighted in the “Differences Between this AD and the MCAI” section in the AD.

There are no costs of compliance since there are no helicopters of this type design on the U.S. Registry.

Since there are currently no affected U.S. registered helicopters, we have determined that notice and opportunity for prior public comment before issuing this AD are unnecessary and that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. However, we invite you to send us any written data, views, or arguments concerning this AD. Send your comments to an address listed under the ADDRESSES section of this AD. Include “Docket No. FAA-2008-0844; Directorate Identifier 2007-SW-23-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this AD.

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

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

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

Therefore, I certify this AD:

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

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

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

Authority for This Rulemaking

The FAA is issuing this rulemaking under the authority set forth in 49 U.S.C. section 44701(a)(5), section 40113, and section 44713. Under section 44701(a)(5), the Administrator is charged with promoting safe flight of civil aircraft by, among other things, prescribing regulations the Administrator finds necessary for safety in air commerce. Sections 40113 and 44713 relate to the Administrator's authority to conduct safety inspections.

The FAA is re-codifying in Title 14 of the Code of Federal Regulations, that public-use airports are required to give Federal Aviation Administration (FAA) aviation safety inspectors (ASIs) access to air operations areas (AOAs), security identification display areas (SIDAs) and other secured areas. Since the transfer of most aviation and transportation security functions to Transportation Security Administration (TSA), ASIs have encountered difficulty accessing airport restricted areas to perform their safety oversight duties. FAA ASIs must have access to public-use airport secured areas to do their job.

On September 19, 2007, the FAA published a notice of proposed rulemaking (NPRM) (72 FR 53504) restoring, clarifying, and reiterating authority of properly credentialed ASIs to access AOAs, SIDAs, and other secured areas of an airport. FAA security rules were formerly contained in 14 CFR parts 107 and 108. These security rules were transferred to Transportation Security Administration (TSA) by the Aviation and Transportation Security Act (ATSA) (Pub. L. 107-71, 115 Stat. 597, November 19, 2001) and promulgated TSA regulations found in 49 CFR parts 1542 and 1544.

The 30-day comment period ended on October 19, 2007.

This final rule creates a new part 153 governing ASI access to public-use airports and facilities to perform official duties. The rule defines airport, and an airport's secured areas including the air operations area (AOA), security identification display area (SIDA), and “secured area.” It also defines an aviation safety inspector (ASI) and FAA Form 110, (FAA-issued credential authorizing ASIs to perform inspections and investigations). Lastly, the rule details what access airports, aircraft operators, aircraft owners, airport tenants, and agencies must grant ASIs bearing FAA Form 110A (and optionally airport-issued identification media) to perform inspections, test compliance, or perform other duties as the FAA may direct.

The FAA received 10 comments. Seven comments were from individuals, two from airports, and one from a labor organization. Commenters generally supported the final rule, but suggested changes discussed below.

Six individual commenters supported the rule. One commenter thought that “creating 14 CFR 153 is a very positive thing for national security and aviation safety, and as a tool, it will streamline the aviation inspection process.” Another commenter offered that “the main premise of the proposal is simply a reinforcement of the existing powers for inspection provided for Airport [sic] ASIs, as agents of the FAA and also creates legal basis for enforcement or basis for litigation.” A third commenter supported the proposed rule and stated that “Inspectors must be permitted to enter air operations and other secured and controlled areas in order to perform effective safety inspections.”

The Air Line Pilots Association (ALPA) strongly supported the proposed rulemaking stating in part “We find the statement and analysis of the problem addressed by this proposal to be sound, and the cost, methods of implementation of changes, and projected timeframe for completion of changes to be reasonable.”

Two airport operators submitted comments on the proposed rule. The commenter from Lambert-St. Louis International Airport suggested the FAA “should make clear that any inspector that needs access to the SIDA must have identification approved by the airport operator or escorted by a person with escort privileges.” The second airport commenter from the Houston Airport System “agrees with the proposed rule concerning access” but stated that ASIs should comply with FAA and airport requirements for movement within AOA and that § 153.3 of the proposed rule should be expanded to require compliance with the Airport Certification Manual, 14 CFR 139.303 and 329, and Advisory Circular 150/5210 5b. The Houston Airport System commenter further stated that at non-139 airports, ASIs should comply with requirements established by the airport manager.

The comments from Lambert-St. Louis International Airport and the Houston Airport System raise important issues concerning an ASI's unrestricted airport access to perform their Federally mandated duties, an airport's safety and security program, and Transportation Security Administration (TSA) security procedures.

The FAA has established codes of conduct for ASIs. ASIs must perform their duty consistent with FAA rules and regulations and airport safety rules when in the AOA and secured areas. In order to familiarize an ASI to airport rules and procedures, the airport operator may elect to issue SIDA badges (with additional training that may include airport layout review and safety and security procedures). Consideration of airport rules are expected when, for example, an ASI makes an unannounced inspection, he/she will display their FAA Form 110A and airport credentials (if issued) establishing their inspection authority.

We will make all reasonable efforts for local ASIs to have local airport credentials and such identification media should be displayed with the FAA Form 110A. The FAA-issued Form 110A will continue to serve as a standalone identification (allowing FAA staffing flexibility to assign ASIs where needed). The Form 110A will also continue to be the primary credential allowing ASIs unrestricted access to those areas of an airport necessary to perform their official duties supporting our safety mission.

Additionally, when entering a sterile area through a screening checkpoint, FAA personnel will continue to comply with TSA screening procedures.

While the FAA agrees that AOA safety is of paramount importance, we do not agree that additional rule language is necessary to ensure ASIs carry out safe practices. ASI safety practices are reinforced by additional training and adherence to best practices. Safety practices are also contained in several FAA orders including Orders 8000-38G and 8900.1. (FAA orders, advisory circulars, and other regulatory guidance can be accessed online at http://rgl.faa.gov. ) The airport operator also has the option of conducting additional training on their specific safety procedures.

The FAA believes the new rule, with our stringent ASI requirements, and continued coordination and cooperation with individual airport operators and the local TSA will allow ASIs to perform their official duties without compromising airport safety or security.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. We have determined that there is no current or new requirement for information collection associated with this amendment. None of the 10 received comments addressed Paperwork Reduction Act requirements or raised concerns about additional paperwork requirements if the final rule is implemented.

An agency may not collect or sponsor the collection of information, nor may it impose an information collection requirement unless it displays a currently valid Office of Management and Budget (OMB) control number.

In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to comply with International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has determined that there are no ICAO Standards and Recommended Practices that correspond to these regulations.

Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 directs that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, this Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995).

Executive Order 12866, “Regulatory Planning and Review,” dated September 30, 1993 (58 FR 51736) directs the FAA to assess both the costs and the benefits of a regulatory change. We are not allowed to propose or adopt a regulation unless we make a reasoned determination that the benefits of the intended regulation justify the costs. Our assessment of this rulemaking indicates that its economic impact is minimal because it does not impose any costs on airport operators. Because the costs and benefits of this action do not make it a “significant regulatory action” as defined in the Order, we have not prepared a “regulatory evaluation” which is the written cost/benefit analysis ordinarily required for all rulemaking under the DOT Regulatory Policies and Procedures. We do not need to do a full evaluation where the economic impact of the rule is minimal.

Department of Transportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. If the expected cost impact is so minimal that a proposed or final rule does not warrant a full evaluation, this order permits that a statement to that effect and the basis for it be included in the preamble if a full regulatory evaluation of the cost and benefits is not prepared. Such a determination has been made for this final rule. The reasoning for this determination follows:

After parts 107 and 108 were removed and these authorities transferred to TSA there has been some misunderstanding about the continuing authority of FAA safety inspectors to access various areas of the airport that are controlled for security purposes. This rule makes clear that FAA aviation safety inspectors continue to have authority to access such areas as needed to perform their duties.

This final rule will put the specific regulatory authority into a new part 153 and clearly defines the authority of properly credentialed ASIs to access AOAs, secured areas, and SIDAs of a public-use airport so they can perform official duties in support of the FAA's safety mission. Adding this language has a positive safety impact, because properly credentialed ASIs will be able to perform necessary inspections that support the FAA's safety mission. The intended effect of this proposed rule is to make sure ASIs have access to AOAs, secured areas, and SIDAs of an airport so they can perform official duties in support of the FAA's safety mission. Its economic impact for airport operators is minimal.

The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.

Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.

However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.

The rule clearly defines the authority of properly credentialed ASIs to access AOAs, secured areas, and SIDAs of an airport to perform official duties in support of the FAA's safety mission. Because this final rule only reiterates and clarifies ASI authority to access an airport's secured areas, there will only be minimal costs since some airports will choose to issue SIDA badges as an airport specific credential. When airports issue SIDA badges for ASIs, these will be carried in addition to the FAA-issued Form 110A.

Therefore, as the Acting FAA Administrator, I certify that this rule will not have a significant economic impact on a substantial number of small entities.

The Trade Agreements Act of 1979 (Pub. L. 96-39) prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this final rule and has determined that it will respond to a domestic safety objective and is not considered an unnecessary obstacle to trade.

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (adjusted annually for inflation with the base year 1995) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $136.1 million in lieu of $100 million.

This final rule does not contain such a mandate. Therefore, the requirements of Title II of the Unfunded Mandates Reform Act of 1995 do not apply to this regulation.

The FAA has analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. We determined that this action will not have a substantial direct effect on the States, or the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, does not have federalism implications.

FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 312f and involves no extraordinary circumstances.

The FAA has analyzed this final rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). We have determined that it is not a “significant energy action” under the executive order because it is not a “significant regulatory action” under Executive Order 12866, and it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

You can get an electronic copy of rulemaking documents using the Internet by:

1. Searching the Federal eRulemaking Portal ( http://www.regulations.gov );

2. Visiting the FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies/; or

3. Accessing the Government Printing Office's Web page at http://www.gpoaccess.gov/.

You can also get a copy by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue, SW., Washington, DC 20591, or by calling (202) 267-9680. Make sure to identify the amendment number or docket number of this rulemaking.

Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit http://DocketsInfo.dot.gov.

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. If you are a small entity and you have a question regarding this document, you may contact your local FAA official, or the person listed under the FOR FURTHER INFORMATION CONTACT heading at the beginning of the preamble. You can find out more about SBREFA on the Internet at http://www.faa.gov/regulations_policies/rulemaking/sbre_act .

In the Federal Register of February 25, 2008 (73 FR 9938), FDA published an IFR to amend the regulation in part 101 (21 CFR part 101) that authorizes a health claim on the relationship between soluble fiber from certain foods and CHD (§ 101.81), to include barley betafiber as an additional eligible source of beta-glucan soluble fiber. Under section 403(r)(3)(B)(i) and (r)(7) of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 343(r)(3)(B)(i) and 343(r)(7)), FDA issued the IFR in response to a petition filed under section 403(r)(4) of the act. On June 20, 2006, Cargill Inc. (the petitioner), submitted a health claim petition to FDA requesting that the agency expand the “Soluble fiber from certain foods and coronary heart disease” health claim (§ 101.81) to include barley betafiber as an eligible food ingredient source of beta-glucan soluble fiber. The petitioner requested that FDA grant an IFR by which foods containing barley betafiber could bear the health claim prior to publication of the final rule.

Section 403(r)(3)(B)(i) of the act states that the Secretary of Health and Human Services (and, by delegation, FDA) shall issue a regulation authorizing a health claim if he or she “determines, based on the totality of publicly available scientific evidence (including evidence from well-designed studies conducted in a manner which is consistent with generally recognized scientific procedures and principles), that there is significant scientific agreement, among experts qualified by scientific training and experience to evaluate such claims, that the claim is supported by such evidence.” (See also § 101.14(c).) Section 403(r)(4) of the act sets out the procedures that FDA is to follow upon receiving a health claim petition. Section 403(r)(7) of the act permits FDA to make a proposed regulation issued under section 403(r) effective upon publication pending consideration of public comment and publication of a final regulation if the agency determines that such action is necessary for public health reasons. FDA filed the petition for comprehensive review in accordance with section 403(r)(4) of the act on September 28, 2006.

As part of its review of the scientific literature on barley betafiber and CHD, FDA considered the scientific evidence presented in the petition as well as information previously considered by the agency on CHD risk reduction and the effects of beta-glucan soluble fiber containing food ingredients on lowering serum total and low density lipoprotein (LDL) cholesterol. The agency summarized this evidence in the IFR (73 FR 9938 at 9941 to 9943). Based on the available evidence, FDA concluded that barley betafiber, like the other whole oat and barley products listed in § 101.81(c)(2)(ii)(A), lowers serum total and LDL cholesterol. Consequently, FDA amended § 101.81(c)(2)(ii)(A) to broaden the health claim to include barley betafiber as an additional eligible source of beta-glucan soluble fiber.

FDA solicited comments on the IFR. The comment period closed on May 12, 2008. The agency received five letters of response, three from consumers, one from academia, and one from the Commonwealth of Kentucky. One consumer comment and the comment from academia supported the IFR. The Commonwealth of Kentucky advised the agency that FDA's ruling on the health claim would not adversely affect the State's actions or conflict with any State laws. The remaining consumer comments addressed issues that are outside the scope of this rulemaking and will not be addressed here.

Given the absence of contrary evidence on the agency's decisions announced in the IFR, FDA is adopting as a final rule, without change, the IFR that amended § 101.81 to include barley betafiber as an additional eligible source of beta-glucan soluble fiber.

FDA has examined the impacts of the final rule under Executive Order 12866 and the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The agency believes that this final rule is not a significant regulatory action under the Executive order.

The Regulatory Flexibility Act requires agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because this final rule allows new voluntary behavior and imposes no additional restrictions on current practices, the agency certifies that the final rule will not have a significant economic impact on a substantial number of small entities.

Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that agencies prepare a written statement which includes an assessment of anticipated costs and benefits before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $127,000,000, using the most current (2006) Implicit Price Deflator for the Gross Domestic Product. FDA does not expect this final rule to result in any one-year expenditure that would meet or exceed this amount.

FDA received no comments relevant to economic impact. The costs and benefits of available regulatory alternatives analyzed in the IFR (73 FR 9938 at 9944 and 9945) are adopted, without change, in this final rule. By now affirming that IFR, FDA has not imposed any new requirements. Therefore, there are no additional costs and benefits associated with this final rule.

The agency has determined under 21 CFR 25.32(p) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

FDA concludes that the labeling provisions of this final rule are not subject to review by the Office of Management and Budget because they do not constitute a “collection of information” under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Rather, the food labeling health claim on the association between consumption of barley betafiber and reduced risk of coronary heart disease is a “public disclosure of information originally supplied by the Federal Government to the recipient for the purpose of disclosure to the public” (5 CFR 1320.3(c)(2)).

FDA has analyzed this final rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that the rule will have a preemptive effect on State law. Section 4(a) of the Executive order requires agencies to “construe * * * a Federal statute to preempt State law only where the statute contains an express preemption provision or there is some other clear evidence that the Congress intended preemption of State law, or where the exercise of State authority conflicts with the exercise of Federal authority under the Federal statute.” Section 403A of the act (21 U.S.C. 343-1) is an express preemption provision. Section 403A(a)(5) of the act provides that “* * * no State or political subdivision of a State may directly or indirectly establish under any authority or continue in effect as to any food in interstate commerce—* * * any requirement respecting any claim of the type described in section 403(r)(1) made in the label or labeling of food that is not identical to the requirement of section 403(r). * * *”

On February 25, 2008, FDA published an IFR which imposed requirements under section 403(r) of the act. This final rule affirms the February 25, 2008, amendment to the existing food labeling regulations to add barley betafiber to the authorized health claim for soluble fiber from certain foods and CHD. Although this rule has a preemptive effect in that it precludes States from issuing any health claim labeling requirements for barley betafiber and reduced risk of CHD that are not identical to those required by this final rule, this preemptive effect is consistent with what Congress set forth in section 403A of the act. Section 403A(a)(5) of the act displaces both State legislative requirements and State common law duties ( Riegel v. Medtronic , 128 S. Ct. 999 (2008)).

FDA believes that the preemptive effect of this final rule is consistent with Executive Order 13132. Section 4(e) of the Executive order provides that “when an agency proposes to act through adjudication or rulemaking to preempt State law, the agency shall provide all affected State and local officials notice and an opportunity for appropriate participation in the proceedings.” On December 12, 2007, FDA's Division of Federal and State Relations provided notice via fax and e-mail transmission to State health commissioners, State agriculture commissioners, food program directors, and drug program directors, as well as FDA field personnel, of FDA's intent to amend the health claim regulation authorizing health claims for soluble fiber from certain foods and CHD (§ 101.81).

In addition, the agency sought input from all stakeholders through publication of the IFR in the Federal Register on February 25, 2008. FDA received one comment from the Commonwealth of Kentucky, which noted that FDA's ruling on the health claim would not adversely affect the State's actions or conflict with any State laws.

In conclusion, the agency believes that it has complied with all of the applicable requirements of Executive Order 13132 and has determined that the preemptive effects of this rule are consistent with the Executive order.

Since 1988, the Department of State has served as the United States Central Authority (USCA) under the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention). The Office of Children's Issues (CI) in the Department's Bureau of Consular Affairs serves as the primary point of contact for abduction cases and is responsible for processing all Hague Convention applications seeking the return of children wrongfully removed or retained in the United States from any other Hague Convention contracting state. In addition, CI is responsible for facilitating access rights under the Hague Convention. In FY 2007, CI processed approximately 575 cases involving 821 children who were reported abducted from or retained outside the United States in other Hague contracting countries. Another 355 cases involving 518 children who were reported abducted to or retained in the United States from other Hague contracting countries were also processed in FY 2007 (Hague incoming cases).

The processing of incoming Hague Convention applications requires case officers to communicate with foreign Central Authorities about incoming cases, to determine the whereabouts of children wrongfully taken to the United States, to attempt to promote the voluntary return of abducted children, and to facilitate the initiation of judicial proceedings with a view toward securing the return of abducted children. Many of the case officer functions involve extensive contact with local law enforcement officials, social service agencies, legal aid organizations and local bar associations.

22 CFR part 94 is being amended to reflect the fact that CI will resume case officer functions for Hague Convention cases where a child has been abducted to or retained in the United States, or will select an entity to assist the Central Authority to carry out these obligations. Since 1996, these functions have been carried out by the National Center for Missing and Exploited Children (NCMEC). See 61 FR 7069 (Feb. 26, 1996); 60 FR 66073 (Dec. 21, 1995). CI continued to perform the remaining USCA functions during this time and retained ultimate responsibility for all incoming cases, and all inherently governmental functions, including matters of Hague Convention interpretation and policy direction. In March 2008, in an effort to reintegrate these various USCA functions, CI significantly modified its agreement with the Department of Justice's Office of Juvenile Justice and Delinquency Prevention and NCMEC such that CI would resume the case officer functions.

This change reflects the expansion of CI's capacity to manage the full range of case officer functions for incoming Hague abduction cases. During the past 12 years, CI has significantly increased its capacity to carry out casework, including its ability to liaise with other federal agencies; federal, state and local law enforcement; domestic and foreign social service agencies, non-governmental organizations; legal aid organizations; and local bar associations. The Office of the Inspector General (OIG) noted in its 2005 report that case officers exhibit the necessary combination of tact, empathy, and professionalism required to do this work. Further, it noted that the ability and commitment of the caseworkers was evident and well supported by the management team within CI. The findings of the OIG indicate that CI has developed the necessary tools to manage incoming casework since entering into its initial agreement with NCMEC in 1995. This development, coupled with CI's desire to provide consistent, efficient services to parents, and an interest in maintaining clear communications with foreign Central Authorities, makes this an appropriate time for CI to resume responsibility for handling incoming Hague Convention cases, or, alternatively, to select an entity to assist in the carrying out of these functions.

The Department of State is publishing this as an interim final rule, rather than as a notice of proposed rulemaking as allowed by 5 U.S.C. 553(b)(3)(B) when an agency determines, for good cause, that it is unnecessary to publish a proposed rule. The Department of State has determined that publication of a proposed rule is unnecessary, as the transfer of responsibility over incoming Hague Convention cases back to CI primarily affects internal workload distribution and management of the USCA functions. This rule minimally modifies the regulation to allow the USCA to have the discretion to determine whether to execute Central Authority functions itself, or to select an entity to assist the Central Authority to carry out its obligations.

This rule is exempt from E.O. 12866, but nonetheless has been reviewed and found to be consistent with the objectives and policies thereof. This rule is 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. 605(b). In addition, this rule would not impose information collection requirements under the provisions of the Paperwork Reduction Act, 44 U.S.C. chapter 35. Nor does this rule have federalism implications warranting the preparation of a Federalism Assessment in accordance with E.O. 12612. This rule has been reviewed as required by E.O. 12988 and certified to be in compliance therewith.

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. The transfer of responsibility over incoming Hague Convention cases back to the Office of Children's Issues at the Department of State primarily affects internal workload distribution and management of the USCA functions.

Since this action is exempt from 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 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 the 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 rule does not have federalism implications warranting the application of Executive Orders No. 12372 and No. 13132. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

The Department of State does not consider this interim final rule to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. In addition, the Department is generally exempt from Executive Order 12866 except to the extent that it is promulgating regulations in conjunction with a domestic agency that are significant regulatory actions. The Department has nevertheless reviewed the regulation to ensure its consistency with the regulatory philosophy and principles set forth in that 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 PBGC's regulations prescribe actuarial assumptions—including interest assumptions—for valuing and paying plan benefits of terminating single-employer plans covered by title IV of the Employee Retirement Income Security Act of 1974. The interest assumptions are intended to reflect current conditions in the financial and annuity markets.

Three sets of interest assumptions are prescribed: (1) A set for the valuation of benefits for allocation purposes under section 4044 (found in Appendix B to Part 4044), (2) a set for the PBGC to use to determine whether a benefit is payable as a lump sum and to determine lump-sum amounts to be paid by the PBGC (found in Appendix B to Part 4022), and (3) a set for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using the PBGC's historical methodology (found in appendix C to part 4022).

This amendment (1) adds to appendix B to part 4044 the interest assumptions for valuing benefits for allocation purposes in plans with valuation dates during September 2008, (2) adds to appendix B to part 4022 the interest assumptions for the PBGC to use for its own lump-sum payments in plans with valuation dates during September 2008, and (3) adds to appendix C to part 4022 the interest assumptions for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using the PBGC's historical methodology for valuation dates during September 2008.

For valuation of benefits for allocation purposes, the interest assumptions that the PBGC will use (set forth in appendix B to part 4044) will be 6.24 percent for the first 20 years following the valuation date and 5.31 percent thereafter. These interest assumptions represent an increase (from those in effect for August 2008) of 0.19 percent for the first 20 years following the valuation date and 0.19 percent for all years thereafter.

The interest assumptions that the PBGC will use for its own lump-sum payments (set forth in appendix B to part 4022) will be 3.50 percent for the period during which a benefit is in pay status and 4.00 percent during any years preceding the benefit's placement in pay status. These interest assumptions represent an increase (from those in effect for August 2008) of 0.25 percent in the immediate annuity rate and are otherwise unchanged. For private-sector payments, the interest assumptions (set forth in appendix C to part 4022) will be the same as those used by the PBGC for determining and paying lump sums (set forth in appendix B to part 4022).

The PBGC has determined that notice and public comment on this amendment are impracticable and contrary to the public interest. This finding is based on the need to determine and issue new interest assumptions promptly so that the assumptions can reflect current market conditions as accurately as possible.

Because of the need to provide immediate guidance for the valuation and payment of benefits in plans with valuation dates during September 2008, the PBGC finds that good cause exists for making the assumptions set forth in this amendment effective less than 30 days after publication.

The PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.

Because no general notice of proposed rulemaking is required for this amendment, the Regulatory Flexibility Act of 1980 does not apply. See 5 U.S.C. 601(2).

On July 21, 2008, the Postal Service filed a request pursuant to 39 U.S.C. 3642 and 39 CFR 3020.30, et seq. to modify the Mail Classification Schedule by adding Express Mail Contract 1 to the competitive product list. The Postal Service asserts that Express Mail Contract 1 is a competitive product “not of general applicability” within the meaning of 39 U.S.C. 3632(b)(3). 1 A redacted version of the Governors' Decision establishing the price and classification and a certification of the Governors' vote is included as Attachment A to the filing (Attachment A). The requested changes in the Mail Classification Schedule product list are included in the filing as Attachment B with the new product shown in brackets. 2 The statement of supporting justification required by 39 CFR 3020.32 is included as Attachment C to the filing (Attachment C).

In the same July 21, 2008 filing, the Postal Service gives notice, pursuant to 39 U.S.C. 3632(b)(3) and 39 CFR 3015.5, that the Governors have established prices and classifications not of general applicability for Express Mail Contract 1. Request at 2.

In support of its Request, the Postal Service has also filed materials under seal, including an unredacted version of an explanation and justification in the Governors' Decision and an unredacted analysis. Also filed under seal are the cost and revenue data and the certification of compliance with 39 U.S.C. 3633(a)(1), (2), and (3). The Postal Service asserts “that the contract, related financial information, the customer's name and the portions of the Governors' Decision and accompanying analysis that provides prices, terms, and conditions should remain confidential.” Id.

After its initial review, the Commission sought additional information with respect to several issues in this case. Toward that end, it issued Commission Information Request No. 1 on July 29, 2008. 3 The Postal Service promptly responded providing the requested clarifying information on August 4, 2008. 4

As noted above, the Postal Service filing in this docket was made pursuant to rule 3015.5 and rule 3020.30 et seq. As a consequence, the Commission will review the filing under both rule 3015 and part 3020, subpart B.

Comments were filed by United Parcel Service (UPS), 5 the Public Representative, 6 and David B. Popkin. 7

UPS urges the Commission to require public disclosure of the proposed contracts subject to adequate safeguards to allow meaningful public review. It believes that if interested parties are denied access to this information, the complaint process under section 3662 will be largely rendered a nullity. UPS Comments at 2.

Along the same lines, Popkin expresses concern that because the Postal Service's filing was largely under seal, the public cannot comment meaningfully on it. Popkin Comments at 2. In addition, Popkin offers several observations about the filing in this case and waiver of signature upon delivery. Id. at 3.

The Public Representative comments on several aspects of the Postal Service's filings in this case including (1) confidentiality; (2) pricing, cost coverage, and contribution; and (3) the specific agreement. With respect to confidentiality, the Public Representative argues that the Postal Service should justify the limits of all confidentiality requests to comport with the spirit of Federal Rules of Civil Procedure 26(c) and the Freedom of Information Act. Public Representative Comments at 3. With respect to pricing, cost coverage and contribution, the Public Representative acknowledges that the pricing in the negotiated service agreement (NSA) comports with the provisions of title 39. With respect to the specific agreement, the Public Representative believes that it promotes an increased Express Mail volume, specifically pieces that are less costly to process. Id. at 5.

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 a review of the provisions applicable to rates for competitive products. 39 U.S.C. 3633.

The Postal Service contends that adding the Express Mail Contract 1 product will result in processing Express Mail pieces that are less costly for the Postal Service than the average Express Mail piece. See Request, Attachment A. It believes that its financial analysis shows that these cost savings can be accomplished while ensuring that the contract covers its attributable costs, does not result in subsidization of competitive products by market dominant products, and increases contribution from competitive products. Id. ; Request, Attachment C, at 1.

The Commission has reviewed the financial analysis provided under seal that accompanies the agreement as well as the comments filed by interested persons. Based on the information provided, the Commission finds that the proposed product submitted 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 competitive products' contribution to institutional costs (39 U.S.C. 3633(a)(3)). Thus, a preliminary review of the proposed Express Mail Contract 1 product indicates that it comports with the provisions applicable to rates for competitive products.

In determining whether to assign the Express Mail contract as a product to the market dominant product list or the competitive product list the Commission must consider whether

In Order No. 43, the Commission issued regulations establishing a modern system of rate regulation, including a list of competitive products. PRC Order No. 43, Order Establishing Ratemaking Regulations for Market Dominant and Competitive Products, October 29, 2007, paras. 3061, 4013. Among other things, the Commission determined that each NSA would initially be classified as a separate product. The specific Express Mail Contract 1 filed in this docket will be classified as a new product.

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 without the risk of losing volume to private companies. Request, Attachment C, at 2-3. The Postal Service also contends that the Postal Service may not decrease quality or output without risking the loss of business to competitors that offer similar expedited delivery services. Id. at 2. It further states that the user/NSA partner supports the addition of the contract to the product list to effectuate the negotiated contractual terms. Id. at 3. Finally, the Postal Service states that due to the fact that Express Mail requires a substantial infrastructure to support a national network, large shippers serve the market under consideration. Accordingly, the Postal Service is unaware of any small business concerns that could offer comparable service for this customer. Id.

No commenter opposes the proposed regulatory classification of the Express Mail Contract 1 as competitive, and no late-filed comments were received. 8 Having considered the statutory requirements, the argument put forth by the Postal Service, and the public comment, the Commission finds that Express Mail Contract 1 is appropriately classified 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 .

The Express Mail contract contains a provision for early termination of the contract. The Postal Service shall promptly notify the Commission of an early termination, but in no event later than the actual termination date. The Commission then will remove the contract from the Mail Classification Schedule at the earliest possible opportunity.

The Commission is aware that the treatment of information as confidential is a sensitive issue. The Postal Service, the Public Representative, United Parcel Service, and Popkin all express valid concerns with respect to documents submitted under seal. Very shortly, the Commission will address these issues on a broader level and establishing procedures to determine the degree of confidentiality to be accorded to this type of information. Interested persons will have an opportunity to comment on appropriate procedures governing the treatment of confidential information filed by the Postal Service.

It is Ordered:

1. The Express Mail Contract 1 will be added to the competitive product list as a separate product under Negotiated Service Agreements, Domestic as Express Mail Contract 1 (MC2008-5).

2. The Secretary shall arrange for publication of the amended product list in the Federal Register .

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

On August 22, 2006, EPA proposed approval of the 5% Increment of Progress (IOP) plan for the nine counties that comprise the DFW 8-hour ozone nonattainment area; the 2002 base year emissions inventory (EI); the 2007 motor vehicle emissions budget (MVEB); and related control measures, including a federal consent decree concerning an Alcoa plant in Rockdale, Milam County, dated April 9, 2003; energy efficiency measures implemented within the DFW 8-hour ozone nonattainment area; and revisions to 30 TAC, Chapter 117, Control of Air Pollution From Nitrogen Compounds, concerning stationary reciprocating IC engines operating within the DFW 8-hour ozone nonattainment area.

The August 22, 2006, proposal provides a detailed description of the revisions and the rationale for EPA's proposed actions, together with a discussion of the opportunity to comment. The public comment period for these actions closed on September 21, 2006. See the Technical Support Documents (TSDs) or our proposed rulemaking at 71 FR 48870 for more information.

On December 22, 2006, the U.S. Court of Appeals for the District of Columbia Circuit issued a decision in response to challenges to EPA's Phase 1 Implementation Rule for the 8-hour Ozone Standard (Phase 1 Rule), granting challenges to certain provisions of the rule and denying other challenges (69 FR 23951, April 30, 2004). South Coast Air Quality Mgmt. Dist. v. EPA, 472 F.3d 882 (DC Cir. 2006). Because of this ruling, EPA decided to delay taking action on the proposal. On June 8, 2007, in response to several petitions for rehearing, the DC Circuit clarified that the Phase 1 Rule was vacated only with regard to those parts of the rule that had been successfully challenged. Therefore, the Phase 1 Rule provisions placing certain areas solely under the planning requirements of subpart 1 of the Act and provisions waiving three 1-hour requirements from the anti-backsliding provisions of the Phase 1 Rule (69 FR 23951) were vacated. Other provisions, which were not challenged or on which the Agency was upheld, remain in effect. These include the classification provisions for 8-hour nonattainment areas under subpart 2 of Title I; part D of the Act; the 8-hour attainment dates; the timing for emissions reductions needed for attainment of the 1997 8-hour ozone National Ambient Air Quality Standard (NAAQS or standard); and the provisions retaining certain 1-hour requirements as anti-backsliding measures.

As a result of this ruling, all relevant requirements of the 5% IOP plan remain in effect and EPA anticipated finally taking action on its proposal. The June 8, 2007, opinion clarifies that the Court did not vacate the Phase 1 Rule's provisions specifying how areas with an outstanding 1-hour attainment demonstration obligation may meet that obligation. Just as EPA was preparing a final action, the DC Circuit issued an order in a second case, which impacted this proposal.

On November 2, 2007, United States Court of Appeals for the District of Columbia entered an Order in the case of NRDC v. EPA, Nos. 06-1045, 06-1046 and 06-1047 consolidated, which vacated and remanded to EPA a portion of the preamble to the Final Rule to Implement the 8-hour Ozone NAAQS—Phase 2, 70 FR 71612, November 29, 2005 (Phase 2 Rule). That portion of the Preamble set forth EPA's longstanding policy that allowed Reasonable Further Progress (RFP) plans and attainment demonstrations credit for reductions in nitrogen oxides (NO X ) and volatile organic compounds (VOCs) occurring outside the nonattainment areas. This ruling impacted EPA's ability to take action on this proposal because, in reliance of this policy, Texas included in its DFW 5% IOP plan reductions from sources outside the nonattainment area.

EPA is approving only portions of the August 22, 2006, proposal. We are approving the 2002 base year VOC and NO X emissions inventories. We find that the 2002 base year VOC and NO X EIs were developed in accordance with the Act and EPA's regulations, and are consistent with EPA's guidance.

We are approving revisions to 30 TAC, Chapter 117, Control of Air Pollution From Nitrogen Compounds, concerning stationary reciprocating IC engines operating within the DFW 8-hour ozone nonattainment area. We are also approving NO X emissions reductions of 0.72 tpd achieved by energy efficiency (EE) measures that occurred in the DFW nonattainment area in 2003. These reductions were achieved by power plants, as a result of EE measures implemented in new construction for single and multi-family residences. Therefore, we are approving these two measures into the Texas SIP because they will contribute to attainment of the 8-hour ozone NAAQS, and they meet EPA rules and are consistent with EPA guidance.

We are also approving the April 9, 2003, Alcoa federal consent decree and subsequent amendments thereto into the DFW SIP for establishing and making enforceable a 2.8 tpd reduction in NO X emissions by shutting down one of the three boilers and replacing one of the two remaining boilers with a circulating fluidized bed (CFB) boiler before June 15, 2007. These emissions reductions are outside of the DFW nonattainment area, and, as such, current EPA policy does not allow them to be included in the 5% IOP determination, but it does allow such emissions reductions to be used in an overall attainment plan.

Because of changing circumstances since the proposal, EPA cannot finalize its approval of that portion of the proposal that demonstrates DFW has met its 5% IOP obligation. As a result, EPA is also not finalizing action on the VOC and NO X MVEBs portion of the proposal. It should be noted that we found the VOC and NO X MVEBs adequate on June 1, 2005 (70 FR 31441). In this final action, EPA is only approving those portions of the proposal described below. EPA has determined that it is important to approve the remaining portions of the proposal so that they become a federally enforceable part of the DFW SIP.

We are taking action on the Reasonably Available Control Technology (RACT) for all major sources of VOCs in the DFW 1-hour ozone nonattainment area and emissions reductions projected for the Texas Emissions Reduction Plan (TERP) in a separate rulemaking.

We received one comment letter dated September 21, 2006, from Marc Chytilo on behalf of Blue Skies Alliance, Downwinders At Risk, Public Citizen/Texas, and the Lone Star Chapter of the Sierra Club on the August 22, 2006, proposed rulemaking. This comment letter attached comments submitted to the State of Texas during the State's comment period as additional comments to our proposed rulemaking. The letter expressed general disappointment in the efforts put forth by the Texas Commission on Environmental Quality (TCEQ) to improve air quality in the DFW area. In addition, the letter included adverse comments on numerous issues relevant to the proposed rulemaking, including certain control measures that Texas submitted for approval to assist in meeting the 5% IOP.

Comment: The commenter states that the work done by Texas to achieve the 1-hour ozone standard in the DFW area was inadequate and that the area remains years away from attaining either the 1-hour or 8-hour ozone standards. The DFW area should now be subject to a Federal Implementation Plan (FIP), outstanding Rate of Progress (ROP) requirements and a mid course review requirement.

Response: As a result of numerous control measures implemented under the 1-hour ozone standard, the area's 1-hour ozone values have declined significantly in the past several years. The 2004-2006 1-hour design value for the DFW area is 124 parts per billion (ppb) and the preliminary 1-hour design value for 2005-2007 is also 124 ppb, which meets the 1-hour standard, although this standard was revoked in 2005. As discussed above, EPA is not at this time making a finding with regard to the DFW 5% IOP obligation. Texas has submitted and EPA has approved the 1-hour ROP requirements for the DFW area under the 1-hour ozone standard (see the August 22, 2006 rulemaking at 71 FR 48870). The area is subject to RFP requirements for the 8-hour ozone standard, which was submitted with the State's 8-hour ozone attainment demonstration SIP, by June 15, 2007. There is no mid-course review requirement at this time for either the 1-hour or 8-hour ozone SIP.

We agree that exposure to ozone pollution can affect public health. Even at very low levels, ground-level ozone triggers a variety of health problems including aggravated asthma, reduced lung capacity, and increased susceptibility to respiratory illnesses like pneumonia and bronchitis. It can also have detrimental effects on plants and ecosystems. Continued implementation of requirements under the Act should improve air quality and allow nonattainment areas, such as DFW, to attain the ozone standard and thereby reduce negative health effects.

Comment: The commenter opposes use of the TERP within the 5% IOP, indicating that the TERP was approved into the SIP on November 14, 2001 (66 FR 57160).

Response: The concept of TERP as an economic incentive program was approved in the 2001 rulemaking, but we did not in that action approve a SIP credit methodology and therefore we did not approve any TERP emissions reductions as SIP credits. The emissions reduction credits requested by the State for today's rulemaking were neither requested nor approved in the 2001 rulemaking. As discussed above, EPA is not taking action on emissions reductions from the TERP in today's action.

Comment: The commenter opposes the inclusion of emissions reductions from Federal measures in the 2007 emissions inventory.

Response: Federal measures, which include growth, fleet turnover, and certain measures already in the EPA-approved SIP, along with the calculations, are used to establish a representative emissions inventory for 2007. Because including these factors aids the formation of a representative inventory, EPA's guidance on the development of emissions inventories encourages their inclusion. EPA issued a guidance memorandum on August 18, 2004, 1 that outlines the criteria for 5% IOP plans. This guidance instructs the State to develop a 2007 inventory, including growth, fleet turnover, and measures already in the EPA-approved SIP. The commenter incorrectly assumes that these factors help the State achieve the 5% IOP; in fact, they increase the difficulty. The factors included in developing the 2007 inventory were not used toward the 5% increment of emissions reduction. In fact, the 2002 inventory provides the baseline emissions level for calculating reduction targets and the control strategies for achieving the required emissions reductions. The measures that assist the area in reaching the 5% reduction are new to the SIP, reduce emissions from area and mobile sources, and are clearly listed in the proposed rulemaking and the TSDs. This methodology is consistent with EPA's past practices for 1-hour ozone SIPs, per sections 110(a)(2) and 172(c) of the Act. To repeat, we are not taking action on the overall 5% IOP in this rulemaking.

Comment: The commenter mentioned a number of concerns regarding the creation of the 5% IOP and other concerns related to the 8-Hour Ozone Implementation Rule, such as: (1) The commenter believes that the fees as described in section 185 of the Act and other severe area requirements should apply to DFW; (2) the commenter states that EPA does not have the authority to revoke the 1-hour standard; and (3) the commenter believes that the 5% IOP allows areas to “backslide” by not requiring areas with outstanding 1-hour attainment demonstration obligations to submit either a 1-hour or 8-hour attainment demonstration SIP.

Response: All of the concerns outlined above by the commenter were addressed in a separate final rule. For a detailed discussion on EPA's rationale on the revocation of the 1-hour ozone standard and the transition from the 1-hour to the 8-hour standard as a way to ensure continued momentum in States' efforts toward cleaner air, see our Phase 1 Implementation Rule (69 FR 23951) and Final Rule regarding Implementation of the 8-Hour Ozone NAAQS—Phase 1: Reconsideration (70 FR 30592). See also the discussion in Section I above.

The concerns raised regarding the fees as described in section 185 of the Act do not apply to the DFW 1-hour nonattainment area since the area was classified as serious at the time of designation under the 8-hour standard. We also note that as a result of numerous control measures implemented under the 1-hour ozone standard, the area's 1-hour ozone values have declined significantly in the past several years and currently meet the 1-hour standard, although this standard was revoked in 2005.

Comment: The commenter opposes the use of Alcoa emissions reductions, citing emissions reductions that were adopted into the SIP by direct final rule on October 26, 2000, and suggesting that the emissions reductions were counted twice.

Response: The October 26, 2000 rulemaking is found at 65 FR 64148. This rulemaking discusses the 2000 Texas agreed order and the resulting 30% emissions reductions that were required to be in place by December 31, 2002. The maximum allowable NO X emissions from Alcoa under this 2000 Texas agreed order is 13,622.4 tons per year (tpy). Furthermore, no later than by December 31, 2002, each boiler must meet a NO X emissions limit of 1168.0 pounds per hour and 5115.8 tpy. Those emissions reductions were relied on in the DFW 1-hour ozone nonattainment area attainment demonstration SIP because they were shown to contribute to attainment of that standard in DFW. The August 22, 2006, proposed rulemaking distinguishes the October 26, 2000, rulemaking requirements from those in the 2003 Alcoa United States consent decree. The required emissions reductions and limits from the 2000 Texas-agreed order were included in the 2002 emissions inventory baseline. The proposed rulemaking and TSDs describe the additional reductions required by the 2003 United States consent decree. These emissions reductions are surplus to those approved in the October 26, 2000, SIP.

In response to this comment, we also refer back to Section I above, which discusses that EPA's policy allowing credit in a RFP plan for reductions outside a nonattainment area has been remanded to EPA. We are approving the emissions reductions credit from the 2003 Alcoa consent decree in the DFW area toward attainment. We are not using these reductions to achieve the 5% IOP as a result of the remand discussed in Section I above.

Comment: The commenter contends that RACT must be re-proposed and suggests the Reasonably Available Control Measures (RACM) analysis is deficient.

Response: We agree with the comment concerning RACT, and EPA will take action on the RACT in a separate rulemaking (see 73 FR 40203, July 14, 2008). Additionally, the 5% IOP does not include a RACT requirement (40 CFR 51.905(a)(1)(ii)(B)). However, the SIP implementing the 8-hour standard for the DFW nonattainment area is required to assure that RACT is met (40 CFR 51.912(a)). For more information on the RACT requirement for the 8-hour standard, please see our Phase 2 Rule (70 FR 71612).

A RACM analysis is not required under the 5% IOP SIP (40 CFR 51.905(a)(1)(ii)(B)). Per 40 CFR 51.905(a)(i), the area remains subject to the obligation to adopt and implement the applicable requirements as defined in 40 CFR 51.900(f), which do not include RACM; therefore, a RACM analysis was not submitted. A RACM analysis is required under the 8-hour ozone standard; for more information on the RACM requirement for the 8-hour standard, please see our Phase 2 Rule (70 FR 71612).

Comment: The commenter contends that the MVEBs are neither approvable nor adequate and that we cannot make a finding that the resulting emissions will not cause or contribute to exceedances and violations of the ozone standards.

Response: Note that, per 40 CFR 93.118, budgets cannot be used for conformity until EPA has either found the budgets “adequate” or approved the SIP in which they are contained (see the transportation conformity rule at 69 FR 40003). The notice of adequacy determination for the MVEBs used in the DFW 5% IOP was published June 1, 2005 at 70 FR 31441; no comments were received during the comment period for this announcement. As explained in Section II above, EPA will take no action on the VOC and NO X MVEBs in this rulemaking.

It should be noted that the conformity regulations at 40 CFR 93.101 (see definitions of motor vehicle emissions budget and control strategy implementation plan) indicate that MVEBs are established by any SIP that provides for reasonable further progress milestones. The 5% IOP plan would establish an 8-hour MVEB because the goal of the IOP is to provide reasonable further progress toward attainment of the 8-hour ozone standard. States should establish the target level of VOC and NO X emissions that can occur in the area without affecting the area's ability to meet the 5% IOP requirement. For more information on the establishment of the 5% IOP, please see our Phase 1 Rule (69 FR 23951).

Comment: The commenter contends that the SIP documents are overly complicated, and all elements of the SIP should be located in one place on the State Web site.

Response: The State is required to make the submittal publicly accessible, and all information, per the TCEQ, is available at http://www.tnrcc.state.tx.us/oprd/sips . The TCEQ acknowledged the complexity of Web sites and indicated they would, in the future, add the SIP proposal and related rules to the DFW SIP page or provide links to other pages.

Comment: The commenter states that the timing and location of the public hearings undermined meaningful public participation and that doors were locked and people barred from the State's public hearing on the draft 5% IOP.

The commenter further asserts that these acts did not provide an adequate opportunity to review and comment on the emissions inventory.

Response: We understand that the State was unaware that the doors were locked at the particular meeting in Arlington because there were at least 28 people present at the hearing. The State has updated its policy regarding public meetings to ensure that doors will remain unlocked during public meetings. Although the doors were locked for a portion of this particular meeting, opportunities for the public to participate in the process remained. This public meeting was held on Monday, January 3, 2005, and written public comment was accepted until 5 p.m. on January 6, 2005. In addition, two other public hearings were held—in Austin on January 4, 2005 and Houston on January 5, 2005. Notices of the public meetings for the 5% IOP SIP revision were published in the Austin, Fort Worth, and Houston newspapers in late November, more than a month prior to the meetings. Notice was also published in the Texas Register on December 3, 2004, one month prior to the hearings. Finally, Texas accepted public comments at meetings in September and November 2004, and accepted written comments through January 6, 2005. The timing suggests there was ample opportunity to review and provide comments on the State submittal.

EPA is approving portions of revisions to the SIP submitted on May 13, 2005, by the State of Texas for the DFW nonattainment area. We are approving the 2002 base year EI; emissions reductions from energy efficiency measures; an April 9, 2003, federal consent decree and subsequent amendments thereto concerning the Alcoa Rockdale plant in Milam County; and revisions to 30 TAC, Chapter 117, Control of Air Pollution From Nitrogen Compounds, concerning stationary reciprocating IC engines operating within the DFW 8-hour ozone nonattainment area and incorporating these revisions into the Texas SIP. These revisions are consistent with the requirements of the Act and EPA's regulations, guidance and policy. We are approving these rules under section 110 and part D of the Act 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 (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).

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 October 14, 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 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 those engaged in the following activities:

• 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 to provide 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 EPA's tolerance regulations at 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, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. 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-2007-1065 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 as required by 40 CFR part 178 on or before October 14, 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 this copy, identified by docket ID number EPA-HQ-OPP-2007-1065, 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 October 24, 2007 (72 FR 205) (FRL-8150-8) and of February 13, 2008 (73 FR 30) (FRL-8351-5), EPA issued notices pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 7E7228) by the IR-4 Project Headquarters, 500 College Road East, Suite 201 W, Princeton, NJ 08540 and pesticide petition (PP 7F7246) by KIM-C1, LLC c/o Siemer and Associates, Inc. 135 W. Shaw, Suite 102, Fresno, CA 93704, respectively. The petitions requested that 40 CFR 180.569 be amended by establishing permanent tolerances and time-limited tolerances for residues of the plant growth regulator forchlorfenuron, in or on bushberry subgroup 13B at 0.01 parts per million (ppm) (PP 7E8228) and almond, cherry, fig, pear, pistachio, plum/prune at 0.01 ppm (PP 7F7246), respectively. Those notices referenced a summary of the petitions prepared by the registrants, Valent U.S.A. Corporation and KIM-C1, LLC, respectively which is available to the public in the docket, http://www.regulations.gov . There were no comments received in response to the notice of filings.

Based upon review of the data supporting the petitions, EPA has revised certain proposed tolerance levels and corrected commodity definitions as follow:

The Agency determined that adequate data are available to support establishing a tolerance for the bushberry subgroup 13-07B. IR-4 petitioned for a tolerance for bushberry subgroup 13B as well as individual tolerances on aronia berry, buffalo currant, Chilean guava, European barberry, highbush cranberry, honeysuckle, jostaberry, juneberry, lingonberry, native currant, salal, and sea buckthorn (PP 7E7228). In the Federal Register of December 7, 2007 (72 FR 69150) (FRL-8340-6), EPA issued a final rule that revised the crop grouping regulations. As part of this action, EPA expanded and revised berries group 13. Changes to crop group 13 (berries) included adding new commodities, revising existing subgroups and creating new subgroups (including a bushberry subgroup 13-07B consisting of the commodities requested in PP 7E7228 and cultivars, varieties, and/or hybrids of these).

EPA indicated in the December 7, 2007 final rule as well as the earlier May 23, 2007 proposed rule (72 FR 28920) (FRL-8126-6) that, for existing petitions for which a notice of filing had been published, the Agency would attempt to conform these petitions to the rule. Therefore, consistent with this rule, EPA is establishing a tolerance for the bushberry subgroup 13-07B. Bushberry subgroup 13-07B consists of the berries for which tolerances were requested in PP 7E7228.

EPA concludes it is reasonable to revise the petitioned-for tolerances so that they agree with the recent crop grouping revisions because:

• Although the subgroup includes several new commodities, these commodities were proposed as individual tolerances and are closely related minor crops which contribute little to overall dietary or aggregate exposure and risk.

• Forchlorfenuron exposure from these added commodities was considered when EPA conducted the dietary and aggregate risk assessments supporting this action.

• The representative commodities for the revised subgroup has not changed.

Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of 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 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. . . .”

Consistent with section 408(b)(2)(D) of FFDCA, and the factors specified in section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for the petitioned-for permanent tolerances for residues of forchlorfenuron on bushberry subgroup 13-07B at 0.01 ppm and time-limited tolerances for residues of forchlorfenuron on almond, cherry, fig, pear, pistachio, plum/prune at 0.01 ppm. EPA's assessment of exposures and risks associated with establishing tolerances follows.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies 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.

Forchlorfenuron is not acutely toxic via the oral, dermal, and inhalation routes. Dose-related effects noted in the dog following subchronic and chronic exposure were generally limited to decreased body weight and body-weight gain. In the rat, the only organ that appeared to be affected was the kidney, which showed suppurative inflammation, suppurative pyelonephritis, non-suppurative interstitial nephritis, and cortical cysts following chronic exposure. Developmental toxicity (decreased fetal body weight) was observed in the rat only at a maternally-toxic dose. Forchlorfenuron did not induce any signs of reproductive toxicity or neurotoxic potential. The developmental toxicity studies in rats and rabbits, as well as the reproductive toxicity study in rats, did not demonstrate any prenatal or postnatal sensitivity. There was no evidence of neurotoxicity in any of the submitted studies. Forchlorfenuron is classified as not likely to be a human carcinogen and there is no concern for mutagenicity. There was no evidence of endocrine disruption in the forchlorfenuron database.

Specific information on the studies received and the nature of the adverse effects caused by forchlorfenuron as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in document Forchlorfenuron: Human Health Risk Assessment for Proposed Uses on the Bushberry Subgroup 13 B and to Support a Requested Experimental Use Permit on almonds, sweet cherries, figs, pears, pistachios and plums/prunes , in docket ID number EPA-HQ-OPP-2007-1065.

For hazards that have a threshold below which there is no appreciable risk, a toxicological point of departure (POD) is identified as the basis for derivation of reference values for risk assessment. The POD may be defined as the highest dose at which no adverse effects are observed (the NOAEL) in the toxicology study identified as appropriate for use in risk assessment. However, if a NOAEL cannot be determined, the lowest dose at which adverse effects of concern are identified (the LOAEL) or a Benchmark Dose (BMD) approach is sometimes used for risk assessment. Uncertainty/safety factors (UFs) are used in conjunction with the POD to take into account uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns. Safety is assessed for acute and chronic dietary risks by comparing aggregate food and water exposure to the pesticide to the acute population adjusted dose (aPAD) and chronic population adjusted dose (cPAD). The aPAD and cPAD are calculated by dividing the POD by all applicable UFs. Aggregate short-, intermediate-, and chronic-term risks are evaluated by comparing food, water, and residential exposure to the POD to ensure that the margin of exposure (MOE) called for by the product of all applicable UFs is not exceeded. This latter value is referred to as the Level of Concern (LOC).

For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect greater than that expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process,see http://www.epa.gov/pesticides/factsheets/riskassess.htm .

A summary of the toxicological endpoints for forchlorfenuron used for human risk assessment is shown in Table 1 of this unit.

1. Dietary exposure from food and feed uses . In evaluating dietary exposure to forchlorfenuron EPA considered exposure under the petitioned-for tolerances as well as all existing forchlorfenuron tolerances in (40 CFR 180.569). EPA assessed dietary exposures from forchlorfenuron in food as follows:

i. Acute exposure . Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure.

No such effects were identified in the toxicological studies for forchlorfenuron; therefore, a quantitative acute dietary exposure assessment is unnecessary.

ii. Chronic exposure . In conducting the chronic dietary exposure assessment EPA used the food consumption data from the United States Departmemt of Agriculture (USDA) 1994-1996 and 1998 Continuing Surveys of Food Intake by Individuals (CSFII). As to residue levels in food, EPA conducted a highly conservative chronic dietary exposure and risk assessment to support the new uses of forchlorfenuron. Tolerance level residues and 100 percent crop treated (PCT) information was incorporated into the assessment. Dietary Exposure Evaluation Model (DEEM version 7.81) default processing factors were used for apple juice, dried apples, dried pears, prune juice, cranberry juice, and grape juice. A processing factor was not used for raisins because a separate tolerance (resulting from an empirical processing study) is being recommended for this commodity. Additionally, the default processing factor was not used for prunes (dried plums) since data indicated that residues in prunes would not exceed the recommended plum tolerance.

iii. Cancer . Forchlorfenuron has been classified as not likely to be carcinogenic based on carcinogenicity studies in the rat and mouse which showed no evidence of an increase in the incidence of tumors therefore a cancer dietary exposure and risk assessment is not required.

iv. Anticipated residue and PCT information . EPA did not use anticipated residue and/or PCT information in the dietary assessment for forchlorfenuron. Tolerance level residues and/or 100 PCT were assumed for all existing and new food commodities.

2. Dietary exposure from drinking water . The Agency used screening level water exposure models in the dietary exposure analysis and risk assessment for forchlorfenuron in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of forchlorfenuron. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www.epa.gov/oppefed1/models/water/index.htm .

Forchlorfenuron is persistent and moderately mobile in soils. Forchlorfenuron is also a substituted urea plant growth regulator that is essentially stable to all routes of dissipation except sensitized photodegradation in water. Based on the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and Screening Concentration in Ground Water (SCI-GROW) models, the Estimated Environmental Concentrations (EECs) of forchlorfenuron from the newly proposed use on bushberries and the uses on almonds, sweet cherries, figs, pears, plums and pistachios under the EUP will not exceed the EECs from the grape and kiwi uses previously assessed by the Agency in document titled Drinking Water Assessment for Forchlorfenuron for Grape and Kiwi Uses. Therefore, the Agency has incorporated the drinking water EEC from the grape and kiwi analysis directly into this dietary assessment.

For chronic dietary risk assessment, the water concentration of value 0.003 ppb was used to assess the contribution to drinking water.

3. From non-dietary exposure . The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).

Forchlorfenuron is not registered for any specific use patterns that would result in residential exposure.

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

EPA has not made a common mechanism of toxicity finding as to forchlorfenuron and any other substances and forchlorfenuron 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 forchlorfenuron 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 EPA's website at http://www.epa.gov/pesticides/cumulative .

1. In general . Section 408(b)(2)(c) of FFDCA provides that EPA shall apply an additional tenfold (10X) 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 database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA safety factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

2. Prenatal and postnatal sensitivity . The developmental and reproductive toxicity studies showed no evidence of increased sensitivity or susceptibility of young rats or rabbits following pre- and/or postnatal exposure to forchlorfenuron.

3. Conclusion . EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1X. That decision is based on the following findings:

i. The toxicity database for forchlorfenuron is complete.

ii. There is no indication that forchlorfenuron is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.

iii. There is no evidence that forchlorfenuron results in increased susceptibility in in utero rats or rabbits in the prenatal developmental studies or in young rats in the 2-generation reproduction study.

iv. There are no residual uncertainties identified in the exposure databases. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to forchlorfenuron in drinking water. EPA used similarly conservative assumptions to assess exposure to forchlorfenuron residues in food. These assessments will not underestimate the exposure and risks posed by forchlorfenuron.

EPA determines whether acute and chronic pesticide exposures are safe by comparing aggregate exposure estimates to the aPAD and cPAD. The aPAD and cPAD represent the highest safe exposures, taking into account all appropriate SFs. EPA calculates the aPAD and cPAD by dividing the POD by all applicable UFs. For linear cancer risks, EPA calculates the probability of additional cancer cases given the estimated aggregate exposure. Short-term, intermediate-term, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the POD to ensure that the margin of exposure (MOE) called for by the product of all applicable UFs is not exceeded.

1. Acute risk . An acute aggregate risk assessment takes into account exposure estimates from acute dietary consumption of food and drinking water. No adverse effect resulting from a single-oral exposure was identified and no acute dietary endpoint was selected. Therefore, forchlorfenuron is not expected to pose an acute risk.

2. Chronic risk . Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to forchlorfenuron from food and water will utilize <1% of the cPAD for the general U.S. population and all subpopulations. There are no residential uses for forchlorfenuron.

3. Short-term and intermediate-term risk . Short-term and Intermediate-term aggregate exposure takes into account short-term and intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

Forchlorfenuron is not registered for any use patterns that would result in short-term and intermediate-term residential exposure. Therefore, the short-term and intermediate-term aggregate risk, individually is the sum of the risk from exposure to forchlorfenuron through food and water, which has already been addressed, and will not be greater than the chronic aggregate risk.

4. Aggregate cancer risk for U.S. population . Since forchlorfenuron has been classified as not likely to be carcinogenic, aggregate cancer risk is not a concern.

5. Determination of safety . Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population or to infants and children from aggregate exposure to forchlorfenuron residues.

An adequate high performance liquid chromatography/ultraviolet (HPLC/UV) method (Method # CCRL-MTH-029) is available for enforcing tolerances of forchlorfenuron in/on members of the Bushberry Subgroup 13-07B and the commodities that are the subject of the proposed EUP. For this method, residues are extracted with methanol or acetone, diluted with water, and partitioned against hexane. Residues remaining in the aqueous fraction are then partitioned into dichloromethane (DCM) and if necessary further purified using a silica SPE cartridge. Residues are determined by HPLC/UV using external standards and residues are confirmed by liquid chromatography (LC) mass spectrometry (MS/MS) analysis. The validated limit of quantitation (LOQ) is 0.01 ppm for fruit and nut crops.

There is no established or proposed Canadian, Mexican or Codex MRLs for residues of forchlorfenuron in plant commodities.

The data submitted also supports a temporary tolerance of 0.15 parts per million (ppm) for almond, hulls. Therefore, a tolerance for residues of forchlorfenuron on almond, hulls at 0.15 ppm is established.

Therefore, a permanent tolerance is established for residues of forchlorfenuron, N -(2-chloro-4-pyridinyl)- N' -phenyl urea, in or on bushberry subgroup 13-07B at tolerance level 0.01.

Also, time-limited tolerances are established for residues of forchlorfenuron, N -(2-chloro-4-pyridinyl)- N' -phenyl urea, in or on almond at 0.01 ppm, almond, hulls at 0.15 ppm, cherry, sweet at 0.01 ppm, fig at 0.01 ppm, pear at 0.01 ppm, pistachio at 0.01 ppm and plum, prune, fresh at 0.01 ppm. A time limitation has been imposed because KIM-C1, LLC has submitted an application for an Experimental Use Permit and Temporary Tolerance for plant growth regulator Forchlorfenuron (CPPU), on six crops (almonds, cherry, fig, pear, pistachio, and plum/prune) to permit experimental use under semi-commercial conditions, which will include collection of additional residue data where necessary to support permanent tolerances.

This final rule establishes tolerances 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 final rule has been exempted from review under Executive Order 12866, this final 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 final rule. In addition, this final 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 final rule in the Federal Register . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2).

On April 6, 2004, the agency published in the Federal Register (69 FR 17960) a final rule extending the parts-marking requirements to certain vehicle lines that were not previously subject to these requirements, specifically (1) all low-theft passenger car lines; (2) all low-theft multipurpose passenger vehicle (MPV) lines with a gross vehicle weight rating (GVWR) of 6,000 pounds or less; and (3) low-theft light-duty truck (LDT) lines with a GVWR of 6,000 pounds or less that have major parts that are interchangeable with a majority of the covered major parts of passenger cars or MPVs. The high-theft vehicle lines that were previously exempted under 49 CFR part 543 on the grounds that they were equipped with an antitheft device as standard equipment were unaffected by the April 2004 final rule. The agency also stated that it would continue to grant exemptions for one vehicle line per manufacturer per model year. The final rule was effective September 1, 2006. The final rule included a phase-in provision which required at least 50 percent of the production volume not subject to the current parts marking requirements (excluding light duty trucks) to have been marked by September 1, 2006. The remaining production volume not subject to the current parts marking requirements must have been marked by September 1, 2007 (see 70 FR 28843, May 19, 2005).

The purpose of the theft prevention standard (49 CFR part 541) is to reduce the incidence of motor vehicle theft by facilitating the tracing and recovery of parts from stolen vehicles. The standard seeks to facilitate such tracing by requiring that vehicle identification numbers (VINs), VIN derivative numbers, or other symbols be placed on major component vehicle parts. The theft prevention standard requires motor vehicle manufacturers to inscribe or affix VINs onto covered original equipment major component parts, and to inscribe or affix a symbol identifying the manufacturer and a common symbol identifying the replacement component parts for those original equipment parts, on all vehicle lines subject to the requirements of the standard.

Section 33104(d) provides that once a line has become subject to the theft prevention standard, the line remains subject to the requirements of the standard unless it is exempted under § 33106. Section 33106 provides that a manufacturer may petition to have a line exempted from the requirements of § 33104, if the line is equipped with an antitheft device as standard equipment. The exemption is granted if NHTSA determines that the antitheft device is likely to be as effective as compliance with the theft prevention standard in reducing and deterring motor vehicle thefts.

The agency annually publishes the names of those vehicle lines that have been determined to be high theft pursuant to 49 CFR part 541 and those that are exempted from the theft prevention standard under section 33104. Appendix A to Part 541 identifies those new light-duty truck lines listed for the first time that will be subject to the theft prevention standard beginning in a given model year. Appendix A-I to Part 541 identifies those vehicle lines that are or have been exempted from the theft prevention standard.

On September 26, 2007, the final listing of MY 2008 high-theft vehicle lines was published in the Federal Register (72 FR 54600). The final listing identified that there again were no new vehicle lines that became subject to the theft prevention standard beginning with the 2008 model year. For MY 2009, there were no new light-duty truck lines identified that became subject to the theft prevention standard in accordance with the procedures published in 49 CFR part 542.

For MY 2009, the list of lines that have been exempted by the agency from the parts-marking requirements of Part 541 includes nine vehicle lines newly exempted in full. The nine exempted vehicle lines are the Hyundai Genesis, Mazda 5, Subaru Forester, Jeep Wrangler, Chevrolet Equinox, Daimler smart USA fortwo, Nissan Rogue, Ford Escape, and Audi Q5.

We note that the agency removes from the list being published in the Federal Register each year certain vehicles lines that have been discontinued more than 5 years ago. Therefore, the Chevrolet Lumina/Monte Carlo (1996-1999) and the Chevrolet Malibu (2001-2003) have been removed from the Appendix A-I listing. The agency will continue to maintain a comprehensive database of all exemptions on our Web site. However, we believe that re-publishing a list containing vehicle lines that have not been in production for a considerable period of time is unnecessary.

The vehicle lines listed as being exempt from the standard have previously been exempted in accordance with the procedures of 49 CFR part 543 and 49 U.S.C., 33106. Therefore, NHTSA finds for good cause that notice and opportunity for comment on these listings are unnecessary. Further, public comment on the listing of selections and exemptions is not contemplated by 49 U.S.C. Chapter 331. For the same reasons, since this revised listing only informs the public of previous agency actions and does not impose additional obligations on any party, NHTSA finds for good cause that the amendment made by this notice should be effective as soon as it is published in the Federal Register .

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

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

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

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

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

This final rule was not reviewed under Executive Order 12866. It is not significant within the meaning of the DOT Regulatory Policies and Procedures. It will not impose any new burdens on vehicle manufacturers. This document informs the public of previously granted exemptions. Since the only purpose of this final rule is to inform the public of previous actions taken by the agency no new costs or burdens will result.

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq. ) requires agencies to evaluate the potential effects of their rules on small businesses, small organizations and small governmental jurisdictions. I have considered the effects of this rulemaking action under the Regulatory Flexibility Act and certify that it would not have a significant economic impact on a substantial number of small entities. As noted above, the effect of this final rule is only to inform the public of agency's previous actions.

NHTSA has analyzed this final rule for the purposes of the National Environmental Policy Act. The agency has determined that implementation of this action will not have any significant impact on the quality of the human environment. Accordingly, no environmental assessment is required.

The agency has analyzed this rulemaking in accordance with the principles and criteria contained in Executive Order 13132 and has determined that it does not have sufficient federal implications to warrant consultation with State and local officials or the preparation of a federalism summary impact statement.

The Unfunded Mandates Reform Act of 1995 requires agencies to prepare a written assessment of the costs, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually ($120.7 million as adjusted annually for inflation with base year of 1995). The assessment may be combined with other assessments, as it is here.

This final rule will not result in expenditures by State, local or tribal governments or automobile manufacturers and/or their suppliers of more than $120.7 million annually. This document informs the public of previously granted exemptions. Since the only purpose of this final rule is to inform the public of previous actions taken by the agency, no new costs or burdens will result.

Pursuant to Executive Order 12988, “Civil Justice Reform,” 1 the agency has considered whether this final rule has any retroactive effect. We conclude that it would not have such an effect. In accordance with § 33118 when the Theft Prevention Standard is in effect, a State or political subdivision of a State may not have a different motor vehicle theft prevention standard for a motor vehicle or major replacement part. 49 U.S.C. 33117 provides that judicial review of this rule may be obtained pursuant to 49 U.S.C. 32909. Section 32909 does not require submission of a petition for reconsideration or other administrative proceedings before parties may file suit in court.

The Department of Transportation has not submitted an information collection request to OMB for review and clearance under the Paperwork reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chapter 35). This rule does not impose any new information collection requirements on manufacturers.

The snapper-grouper fishery of the South Atlantic is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The FMP was prepared by the South Atlantic Fishery Management Council and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622. Those regulations set the commercial quota for golden tilefish in the South Atlantic at 295,000 lb (133,810 kg) for the current fishing year, January 1 through December 31, 2008.

Under 50 CFR 622.43(a), NMFS is required to close the commercial fishery for a species or species group when the quota for that species or species group is reached, or is projected to be reached, by filing a notification to that effect with the Office of the Federal Register. Based on current statistics, NMFS has determined that the available commercial quota of 295,000 lb (133,810 kg) for golden tilefish will be reached on or before August 17, 2008. Accordingly, NMFS is closing the commercial fishery for golden tilefish in the South Atlantic EEZ from 12:01 a.m., local time, on August 17, 2008, until 12:01 a.m., local time, on January 1, 2009. The operator of a vessel with a valid commercial vessel permit for snapper-grouper having golden tilefish aboard must have landed and bartered, traded, or sold such golden tilefish prior to 12:01 a.m., local time, August 17, 2008.

During the closure, the bag and possession limits specified in 50 CFR 622.39(b) apply to all harvest or possession of golden tilefish in or from the South Atlantic EEZ, and the sale or purchase of golden tilefish taken from the EEZ is prohibited. The prohibition on sale or purchase does not apply to sale or purchase of golden tilefish that were harvested, landed ashore, and sold prior to 12:01 a.m., local time, August 17, 2008, and were held in cold storage by a dealer or processor.

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

For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).

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

This Federal Register document is also accessible on the internet at: www.gpoaccess.gov/fr/index.html .

A final rule for Amendment 2 to the 2006 Consolidated Atlantic HMS FMP was published in the Federal Register on June 24, 2008 (73 FR 35778), and a correction was published on July 15, 2008 (73 FR 40658). That final rule became effective on July 24, 2008. The OMB approval of the collection-of-information requirements for § 635.5 had not been received by the date the final rule was submitted to the Office of the Federal Register for publication. Because OMB approval of the collection-of-information requirements had not been received by NMFS by the date the final rule was published, the effective date of the associated recordkeeping and reporting requirements in that rule was delayed.

OMB approved the collection-of-information requirements contained in the rule on June 23, 2008. Accordingly, this final rule makes effective the collection-of-information requirements at § 635.5 contained in the final rule published on June 24, 2008.

This final rule has been determined to be not significant for purposes of Executive Order 12866.tanding 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 requirement 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 revisions to collection-of- information requirements subject to the PRA under OMB Control Number 0648-0040. NMFS sought approval regarding the addition of a check box on the HMS dealer form. This check box would allow HMS dealers to note whether or not shark fins were naturally attached to the shark through offloading. NMFS does not expect that the addition of a check box regarding shark fins would add to the reporting burden.

Send comments regarding these burden estimates or any other aspect of this data collection, including suggestions for reducing the burden, to David Rostker at David_Rostker@omb.eop.gov , or fax to 202-395-7285.

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

The 2008 TAC of thornyhead rockfish in the Western Regulatory Area of the GOA is 267 metric tons (mt) as established by the 2008 and 2009 harvest specifications for groundfish of the GOA (73 FR 10562, February 27, 2008).

In accordance with § 679.20(d)(2), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2008 TAC of thornyhead rockfish in the Western Regulatory Area of the GOA has been reached. Therefore, NMFS is requiring that thornyhead rockfish caught in the Western Regulatory Area of the GOA be treated as prohibited species in accordance with § 679.21(b).

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the prohibition of retention of thornyhead rockfish in the Western Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of August 11, 2008.

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

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

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

In accordance with § 679.20(a)(8)(iii)(A), owners and operators of vessels using trawl gear for directed fishing for Atka mackerel in the HLA are required to register with NMFS. Eight vessels have registered with NMFS to fish in the B season HLA fisheries in areas 542 and/or 543. In accordance with § 679.20(a)(8)(iii)(B), the Administrator, Alaska Region, NMFS, has randomly assigned each vessel to the HLA directed fishery for Atka mackerel for which they have registered and is now notifying each vessel of its assignment.

For the Amendment 80 cooperative, the vessels authorized to participate in the first HLA directed fishery in area 542 and the second HLA directed fishery in area 543 in accordance with § 679.20(a)(8)(iii) is as follows: Federal Fishery Permit number (FFP) 2733 Seafreeze Alaska and FFP 3835 Seafisher. The vessel authorized to participate in the first HLA directed fishery in area 543 and the second HLA directed fishery in area 542 in accordance with § 679.20(a)(8)(iii) is as follows: FFP 2134 Ocean Peace.

For the Amendment 80 limited access sector, vessels authorized to participate in the first HLA directed fishery in area 542 and in the second HLA directed fishery in area 543 in accordance with § 679.20(a)(8)(iii) are as follows: FFP 4093 Alaska Victory and FFP 3819 Alaska Spirit. Vessels authorized to participate in the first HLA directed fishery in area 543 and in the second HLA directed fishery in area 542 in accordance with § 679.20(a)(8)(iii) are as follows: FFP 2443 Alaska Juris and FFP 3423 Alaska Warrior.

For the BSAI trawl limited access sector, the vessel authorized to participate in the first HLA directed fishery in area 542 in accordance with § 679.20(a)(8)(iii) is as follows: FFP 11770 Alaska Knight.

The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is unnecessary. This notice merely advises the owners of these vessels of the results of a random assignment required by regulation. The notice needs to occur immediately to notify the owner of each vessel of its assignment to allow these vessel owners to plan for participation in the B season HLA fisheries in area 542 and area 543.

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

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