This rule implements provisions in the 2008 Farm Bill (Pub. L. 110-246) for cotton programs administered by CCC. The cotton programs are: (1) Recourse seed-cotton loans for upland and ELS cotton, (2) non-recourse marketing assistance loans that may be repaid at a statutorily set repayment rate and loan deficiency payments for upland cotton, (3) non-recourse marketing assistance loans for ELS cotton that are to be repaid at principal plus interest, and (4) the ELS competitiveness payment program providing payments to domestic users and exporters of ELS cotton. This rule also includes regulations for the new Economic Adjustment Assistance to Users of Upland Cotton Program that provides payments to domestic users of upland cotton.

The regulations in 7 CFR part 1427 specify eligibility and application requirements for cotton program applicants, methods for establishing and announcing upland cotton loan repayment rates, and rates for loan deficiency payments. The loan programs for cotton provide short term financing and improve farm-price stability.

The basic structure of the existing programs is not changing, but the 2008 Farm Bill requires some substantive changes in the regulations, including a change in the way AWP for upland cotton is calculated and a reduction in the rates used for calculating warehouse storage credits. This rule also makes minor changes to the regulations for clarity and to reflect current industry practice, to update the crop years as required by the 2008 Farm Bill, and to remove expired sections that only applied to certain previous crop years. The changes are discussed below.

In general, this rule implements changes in the regulations that are explicitly required by the 2008 Farm Bill. Under the 2008 Farm Bill, for example:

• A new program is required for economic assistance for users of upland cotton. Through this new program, CCC will make payments to domestic cotton mills for capital investments (to acquire, construct, install, modernize, develop, convert, or expand land, plant, buildings, equipment, facilities, or machinery). The maximum payment rate is 4 cents per pound for all cotton consumed by domestic mills beginning August 1, 2008; the rate will be 3 cents per pound beginning August 1, 2012. The new program pays on both domestic and foreign cotton.

• Storage credits to upland cotton loan repayment values are allowed for the 2008 through 2012 crop years, but reduced by 10 percent from the 2006 rate for the 2008 through 2011 crop years and reduced by 20 percent from the 2006 rate beginning with the 2012 crop year. (Storage is credited when AWP is less than the total of the loan rate plus interest plus storage, which is consistent with the existing repayment provisions.)

• The upland cotton loan schedule is revised to ensure that premiums and discounts are more accurately aligned with prevailing market valuations and facilitate movement of cotton into the market.

In general, the regulatory changes address requirements for (1) the new program for economic adjustment assistance for domestic users of upland cotton, (2) storage and loan rate adjustments, (3) termination of commodity certificates and payment limitations, (4) AWP calculation changes, (5) eligibility, (6) fraud or unauthorized disposition, (7) warehouse receipts, collateral, and storage, and (8) updates and miscellaneous corrections. The regulatory changes are described below by these categories.

This rule adds a new Subpart C, “Economic Adjustment Assistance to Users of Upland Cotton” (as discussed below, this rule also removes the existing Subpart C, “Upland Cotton User Marketing Certificates”). Section 1207(c) of Subtitle B of Title I of the 2008 Farm Bill requires this new assistance. Eligible domestic users of upland cotton include persons who open bales of upland cotton for spinning, making paper, and processing non-woven cotton fabric in the United States. CCC will pay 4 cents per pound for all cotton consumed by domestic mills beginning August 1, 2008; the rate will be 3 cents per pound beginning August 1, 2012. Payments may only be used for capital investments (to acquire, construct, install, modernize, develop, convert, or expand land, plant, buildings, equipment, facilities, or machinery). Further, such capital expenditures must be directly attributable to the purpose of manufacturing upland cotton into eligible cotton products in the United States.

The new program payments apply to both domestic and foreign cotton and will be made without regard to world or domestic cotton prices.

The 2008 Farm Bill requires CCC to adjust upland cotton loan rates so that the resulting loan rates more accurately reflect relative market valuations. Specifically, starting with the 2008 crop, CCC will no longer adjust upland cotton loan rates for location. This provision eliminates premiums previously provided to production near domestic mills. For example, cotton at some South Carolina locations had previously been provided a location premium of 1.9 cents per pound over the base-quality loan rate of 52 cents per pound. To eliminate the location adjustment, this rule removes the mention of “county” in the definition of loan deficiency payment in section 1427.3 and removes the reference to loan rate location adjustment in section 1427.160. These changes are consistent with current marketing of cotton because most domestic cotton is priced based on export price considerations.

Also, section 1204(e) of the 2008 Farm Bill specifically provides for fine count and transportation adjustments to the AWP. This rule has provisions regarding both and to the extent they differ from previous policies for the 2007 crop those new provisions will be applied to outstanding 2007 crop loans. That is, the AWP calculations under this rule for 2009 and 2007 crops will be the same. Provisions of the 2002 legislation that covers the 2007 crop, namely the Farm Security and Rural Investment Act of 2002 (Pub. L. 107-110) is broad enough to allow the 2007 crop adjustments.

The 2008 Farm Bill requires CCC to credit loan repayment values by a portion of warehouse storage charges that accrue during the loan period when AWP is sufficiently low. Under this new authority, the maximum warehouse storage rates established by CCC for calculating storage credits for upland cotton will, as provided in the 2008 Farm Bill, be reduced from the 2006 maximum rate by 10 percent for the 2008 through 2011 crops and by 20 percent beginning with the 2012 crop. This rule changes section 1427.19, “Repayment of Loans,” accordingly. The storage payment reduction provisions do not apply to the 2007 crop.

The 2008 Farm Bill requires that a loan deficiency payment (LDP) rate be the rate effective on the date the producer requested the payment. Some cotton users purchase cotton on a “gin-direct” basis that provides for the cotton to be priced and shipped directly after the date of ginning. Under such contracts, any LDP rate is established as the rate effective on the date the cotton is ginned even though the exact date of ginning and any LDP rate may be unknown to both parties at the time the contract is made. To accommodate the sale of cotton under such commercial contracts, if a producer who meets other LDP eligibility and application requirements requests an LDP on “gin-direct” terms, CCC will consider the date the cotton is ginned to be the date of the LDP request.

This final rule implements a provision of the new Average Crop Revenue Election (ACRE) program established by the 2008 Farm Bill. Under that program, during each of the 2009 through 2012 crop years, the loan rate for upland cotton will be reduced by 30 percent for producers who elect to participate in ACRE. This rule amends sections 1427.8, “Amount of loan,” and 1427.160, “Applicability,” accordingly.

As required by the 2008 Farm Bill, this rule also amends the cotton program regulations to end the availability of commodity certificates and the applicability of payment limitation to gains from marketing assistance loans and loan deficiency payments.

Beginning with the 2010 crop, as provided in section 1607 of the 2008 Farm Bill, CCC will no longer provide commodity certificates for the purpose of exchange for cotton loan collateral. Accordingly, this rule is removing Subpart C from 7 CFR part 1427, which concerns marketing certificates, and revising the references to marketing certificates in other sections of part 1427 so that the provisions are no longer effective after the 2009 crop year.

Starting with the 2009 cotton crop year, CCC will no longer limit the gains from marketing assistance loans and loan deficiency payments. These changes will be implemented in broader, multi-commodity regulations to be issued later.

This rule amends section 1427.25, “Determination of the prevailing world market price and the adjusted world price for upland cotton,” to be consistent with provisions of the 2008 Farm Bill. This rule amends the regulations to establish a new fine count adjustment, a new method for calculating the AWP transportation adjustment, and a new process for AWP calculations during the transition between crop years. The fine count adjustment to the upland cotton AWP will apply to any CCC-established loan rate premium factor for a quality higher than Middling 1 3/32 -inch. The transportation adjustment to the weekly AWP is simplified by this rule to use values provided to CCC from its survey of domestic cotton merchandisers. CCC's process for determining AWP during the transition period between crop years has previously been a process of blending current and forward prices over a six-week period. The revised regulation, consistent with the 2008 Farm Bill, provides for use of forward-crop price quotations prior to July 31 of a marketing year if there are insufficient current-crop prices and the forward-crop price is the lowest available price quotation. Additionally, this rule amends the AWP announcement time from 5 p.m. to 4 p.m. eastern time each Thursday. This rule also amends section 1427.3, “Definitions,” to modify the definitions of terms used in the price determination formula, consistent with the AWP changes. Previously, in a rule published May 27, 2008 (73 FR 30274-30277) CCC shifted to the use of Far East prices for setting loan repayment rates.)

This rule amends section 1427.4, “Eligible Producer.” As required by section 1603 of the 2008 Farm Bill, States or political subdivisions or their agencies are no longer eligible for loans or loan deficiency payments.

This rule amends section 1427.5, “General eligibility requirements,” to provide that effective with the 2009 crop, flat bales are not eligible to be tendered as loan collateral. This amendment is consistent with current industry practice as flat bales are not marketable in normal trade.

In section, 1427.18, “Liability of the Producer,” this rule amends the way CCC values the loan collateral in circumstances of fraud or unauthorized disposition. CCC will value loan collateral at its loan value rather than its sales price in circumstances of fraud or unauthorized disposition. This amendment is not specifically required by the 2008 Farm Bill; it is being made for clarity and consistency with overall CCC loan settlement and inventory policy. Rather than requiring the relocation of loan collateral, CCC will accelerate the maturity date of cotton if relocation is not accomplished by the producer. Commonly, this provision is used following warehouse closings or storm damage.

This rule revises the definition in section 1427.3 of a “warehouse receipt” for cotton as loan collateral. Effective starting with the 2009 crop of cotton, CCC will require warehouse receipts to be submitted to CCC in an electronic format; paper warehouse receipts will not be accepted. Paper warehouse receipts are rarely used for modern commercial transactions and, therefore, are considered unmarketable by CCC. This rule revises the definitions of “warehouse receipt” and “transfer” to include a reference to receipts that are certificated for delivery of a futures pricing contract and revises the definition of “transfer” to include the exchange of electronic warehouse receipts without physically relocating the cotton. This rule updates section 1427.10, “Approved Storage,” accordingly.

This rule amends section 1427.21, “Settlement.” Traditionally, CCC settled cotton loans for which collateral was delivered to CCC based on the weight and quality indicated on the original warehouse receipt. However, for bales that are relocated during the loan period and subsequently delivered to CCC, the original warehouse receipt is cancelled and a subsequent receipt is delivered to CCC in satisfaction of the loan obligation. For such cases, this rule specifies that CCC may elect to calculate settlement values based on the weight, condition, and classification as reflected on the receipt delivered to CCC rather than based on the original receipt information. CCC will use this new settlement option only when there is significant variation in weights or quality between the original and subsequent bale receipts. This change will ensure that a fair and accurate settlement is made based on the most current and accurate weight and quality.

In addition, clarifying changes are being made to section 1427.21 to identify charges payable by the producer if cotton loan collateral is delivered to CCC to satisfy the loan obligation. These charges include warehouse receiving charges, new bale ties, unpaid warehouse compression, storage charges for any period of yard storage, storage surcharges that apply during or within three months following the period of the loans, and other associated charges that may be levied by the warehouse specific to forfeited cotton. This is an improved statement of existing policy and is not required by the Farm Bill.

This rule adds a provision to section 1427.7, “Maturity of Loans,” to allow CCC to accelerate the maturity date of the cotton stored as collateral in certain situations, such as when the cotton is improperly warehoused and subject to damage. A producer may still transfer cotton loan collateral as provided under section 1427.16, “Movement and Protection of Warehouse-stored Cotton,” but CCC will no longer relocate loan bales at its expense from one CCC-approved warehouse to another. For consistency, therefore, this rule removes language regarding CCC transfer of cotton from section 1427.16.

This rule removes all references to reconcentration of cotton from 7 CFR part 1427. Reconcentration involves the process of moving CCC-owned cotton from one approved warehouse to another, which is a CCC inventory issue that is not relevant to cotton loan regulations.

This rule revises section 1427.5(b)(2) to clarify that cotton submitted for loan deficiency payments (LDP) is not required to be stored in a warehouse that meet the approved storage requirements of CCC cotton loan collateral. This revision is for clarity and does not imply any change in CCC storage policies. Cotton presented for LDPs has not been required to be receipted by an approved cotton storage warehouse because such cotton is usually shipped from the gin to the user and avoids the warehousing process.

This rule amends section 1427.10(c) to provide that warehouses approved to store CCC cotton loan collateral outside are required to report location indicators and effective dates for any loan bale stored outside. CCC uses such information to compute any denied storage credits. This revision simply states how the information is currently obtained from warehouses through their electronic warehouse receipt providers; the reporting requirement was first established by regulations in 2006.

This final rule becomes effective when filed for public inspection by the Office of the Federal Register . A number of provisions included in these regulatory changes start based on a crop year or date specified in the 2008 Farm Bill.

The following table shows the start times for these provisions:

Executive Order 12866

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

The Catalog of Federal Domestic Assistance (CFDA) Program number assigned to the Rural Development Utilities Telecommunications Loans and Loan Guarantees Program is 10.851. The CFDA is available on a subscription basis from the Superintendent of Documents, the United States Government Printing Office, Washington, DC 20402-9325; telephone (202) 512-1800.

This program is not subject to the requirements of Executive Order 12372, “Intergovernmental Review of Federal Programs,” as implemented under USDA's regulations at 7 CFR part 3015.

This direct final rule has been reviewed under Executive Order 12988, Civil Justice Reform. The Agency has determined that this rule meets the applicable standards provided in section 3 of the Executive Order. In addition, all state and local laws and regulations that are in conflict with this rule will be preempted, no retroactive effect will be given to this rule, and, in accordance with Sec 212(e) of the Department of Agriculture Reorganization Act of 1994 (7 U.S.C. 6912(e)), administrative appeal procedures, if any, must be exhausted before an action against the Department or its agencies may be initiated.

The policies contained in this direct final rule do not have any substantial direct effect on states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Nor does this direct final rule impose substantial direct compliance costs on state and local governments. Therefore, consultation with states is not required.

Pursuant to 5 U.S.C. 553(a)(2), this final rule is exempt from the rulemaking requirements of the Administrative Procedure Act (5 U.S.C. 551 et seq. ), including the requirement to provide prior notice and an opportunity for public comment. Because this final rule is not subject to a requirement to provide prior notice and an opportunity for public comment pursuant to 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) are inapplicable.

This direct final rule contains no Federal mandates (under the regulatory provision of Title II of the Unfunded Mandates Reform Act of 1995) for State, local, and tribal governments or the private sector. Therefore, this direct final rule is not subject to the requirements of sections 202 and 205 of the Unfunded Mandates Reform Act of 1995.

This direct final rule has been examined under Agency environmental regulations at 7 CFR part 1794. The Administrator has determined that this action is not a major Federal action significantly affecting the environment. Therefore, in accordance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ), an Environmental Impact Statement or Assessment is not required.

This direct rule contains no new reporting or recordkeeping burdens under OMB control number 0572-0079 that would require approval under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).

Rural Development improves the quality of life in rural America by providing investment capital, in the form of loans and grants, for the deployment of rural telecommunications infrastructure. Financial assistance is provided to rural utilities; municipalities; commercial corporations; limited liability companies; public utility districts; Indian tribes; and cooperative, nonprofit, limited-dividend, or mutual associations. In order to achieve the goal of increasing economic opportunity in rural America, the Agency finances infrastructure that enables access to a seamless, nationwide telecommunications network. With access to the same advanced telecommunications networks of its urban counterparts, especially broadband networks designed to accommodate distance learning, telework and telemedicine, rural America will see improving educational opportunities, health care, economies, safety and security, and ultimately higher employment. The Agency is committed to ensuring that rural areas will have access to affordable, reliable, advanced telecommunications services, comparable to those available throughout the rest of the United States, to provide a healthy, safe and prosperous place to live and work.

While the Agency is proud of the results it has achieved in Rural America with the Telecommunications Loan Program, it believes that the overall effectiveness of the program can be improved by modifying the existing rules. The change to the current regulation will permit additional financially sound borrowers, who clearly meet the intent of the Telecommunications Loan Program, to be eligible to participate in the program.

Facilities financed by the Loan Program are typically constructed over a five year period (Forecast Period). The feasibility studies used to demonstrate that an applicant is eligible for a loan and can repay it assumes this Forecast Period. The feasibility study is also used to forecast the applicant's Times Interest Earned Ratio or TIER. The TIER is one measure of an applicant's ability to repay the loan. Currently, the regulation states that applicants must maintain a TIER of at least 1.0 during the Forecast Period. At the end of the Forecast Period, the applicant shall be required to maintain, at a minimum, a TIER at least equal to the projected TIER determined by the feasibility study prepared in connection with the loan, but at least 1.0 and not greater than 1.5.

The requirement that an applicant maintain a TIER of at least 1.0 during the Forecast Period, arbitrarily and unfairly disqualifies some applicants from the Loan Program. During the Forecast Period as an applicant constructs facilities, there is always a delay from the time that the construction is initiated to the time that construction is completed and revenues increase based upon the new subscribers connected and new services offered. During this period, it would not be unusual for the applicant's TIER to be less than 1.0. This occurrence is not generally an indicator that the applicant is in financial difficulty, but a direct result of the time lag associated with construction of facilities. In addition, the current provision effectively disqualifies any start up or new entity from qualifying for the Loan Program. In many cases these newer entities, and the rural residents they serve, are the ones that stand to benefit the greatest from the program.

This change would not constitute a loan security risk as an applicant's financial performance is continuously monitored and the advance of loan funds can be suspended should the situation warrant such action. In addition, the applicant would still be required to maintain the projected TIER at the end of the Forecast Period.

In a document published in the Federal Register on April 16, 2008 (73 FR 20571), VA proposed to launch an initiative for accelerated claims and appeals processing at four VA facilities. This initiative would establish a 2-year pilot program known as the Expedited Claims Adjudication (ECA) Initiative (Initiative). The goal of the Initiative would be to determine whether VA can expedite the claims and appeals process by obtaining claimants' waivers of certain statutory and regulatory response periods, and by pre-screening cases at the Board to determine the adequacy of the record for appellate review. As proposed, participation in the Initiative would be strictly voluntary, and open to claimants residing in the jurisdiction of one of the four trial sites. Additionally, claimants would be required to be represented by a recognized Veterans Service Organization (VSO) or an accredited agent or attorney at the time of electing to participate in the Initiative. The ECA Initiative would be predicated on the claimant agreeing, at the beginning of the claims process, to waive certain identified statutory and regulatory time limits and processing actions, which would be carefully outlined in an ECA Initiative Agreement and Waiver of Rights (ECA Agreement). ECA participation would be effectuated only if both the claimant and his or her representative sign the ECA Agreement, certifying that the claimant has consulted with his or her representative to determine if participation in the Initiative is in his or her best interest.

A claimant's decision to participate in the ECA would be revocable at any time in the VA claims or appeals process, with no penalty. Rather, as outlined in the notice of proposed rulemaking, upon express or implied revocation of ECA participation, the claimant's case would continue to be processed, from that point forward, using ordinary and established procedures under current statutes and regulations governing claims adjudication. In other words, the claimant's case would essentially continue from the same point in the adjudication process that it was when it left the ECA.

The public comment period ended on June 16, 2008. VA received comments from one individual and from three organizations. For the most part, the comments expressed general disagreement with the basic structure and purpose of the ECA, and raised concerns about the impact the ECA would have on VA's workload, particularly accuracy and quality in decision-making. More specifically, the commenters expressed the following concerns: (1) The effect of the Initiative on decision quality; (2) whether the Board has authority to decide ECA claims out of docket order; (3) time limits under the Initiative; (4) disagreement with the good cause exception in the Initiative; (5) VA's data collection under the Initiative; (6) a challenge to the purpose of the ECA; and, (7) concern over the impact of the ECA on the workload at one of the trial sites. We will address each of these topics in turn. Based on the rationale described in this document and in the notice of proposed rulemaking, VA adopts the proposed rule as revised in this document.

An underlying theme throughout the four comments was that the ECA would degrade decision quality and accuracy. One commenter stated that the Initiative “appears to elevate speed of adjudication above adequate evidence development and accuracy of decision-making.” The commenter stated that the Initiative “does violence” to the historical non-adversarial and informal nature of the VA adjudication system. The commenter stated the belief that the Initiative would not lead to any improvement to the adjudication system as a whole. Rather, the commenter is “convinced that the changes the Initiative proposes will cause the creation of inadequately developed records in claims, which will result in inaccurate decisions denying benefits” and ultimately lead to increased remands in the system to “undertake corrective development in covered claims.”

Similarly, another commenter expressed hesitancy to support the ECA “without a guarantee that the quality of the decision rendered will be better than that of a claim adjudicated in the normal manner or that there would be a significant improvement in claims processing time.” The commenter noted the absence of a quality assurance component for the ECA. The commenter recommended “that VA devote its time to improving the quality of its adjudications rather than creating ways to circumvent procedural protections.”

We agree that all claimants in the VA adjudication system are entitled to accurate and legally correct decisions based on a fully-developed evidentiary record. We respectfully disagree, however, with the commenters' characterization of the Initiative as promoting speed of adjudication over adequate evidentiary development and administrative efficiency over accuracy. We also disagree with the suggestion that the Initiative would do “violence” to the current system. Rather, we believe that this Initiative is a constructive attempt to improve efficiency and timeliness in the VA claims adjudication system.

As discussed in the notice of proposed rulemaking, the essential premise on which the Initiative is based is that there are many procedural rights built into the current VA claims adjudication and appeals process that unnecessarily lengthen the amount of time it takes to process an initial claim or appeal while cases sit without any action occurring while waiting for a statutory or regulatory response period to end. By greatly reducing the amount of time that a case sits without any action occurring while waiting for one of these response periods to run, it is the goal of this 2-year Initiative to provide a model to streamline the claims adjudication and appeals process system wide. Contrarily, it is not the goal of the Initiative to avoid VA's responsibilities to fully and adequately develop and decide cases in a fair and accurate manner, or to change in any other manner the non-adversarial and informal nature of the VA adjudication system.

With respect to evidentiary development, we emphasize that the Initiative leaves intact VA's duty to notify claimants of the information and evidence necessary to substantiate their claims under 38 U.S.C. 5103(a) and 38 CFR 3.159(b)(1), as well as VA's duty to assist claimants in obtaining evidence necessary to substantiate their claims under 38 U.S.C. 5103A and 38 CFR 3.159(c). ECA participants will continue to be provided a notice letter that informs them of the information and evidence needed to substantiate their claim(s) and outlines the claimant's and VA's responsibilities for obtaining such evidence. See 38 U.S.C. 5103(a) and 38 CFR 3.159(b)(1). The Initiative also leaves unaltered VA's duty to make reasonable efforts to obtain relevant evidence identified by a claimant, and leaves unchanged VA's duty to provide claimants with a medical examination or obtain a medical opinion when necessary to decide a claim. See, e.g. , 38 CFR 3.159(c)(4), 3.326, 3.327. These notice and development requirements are implicitly referenced under § 20.1500(c), which states that any matter not otherwise covered by this subpart will be governed by existing rules.

As the Initiative leaves intact VA's duties to notify and assist, we cannot agree with the commenters' suggestion that the Initiative contains no provision that would ensure that VA adjudicators have a complete and fully developed evidentiary record in covered claims. To the contrary, VA's obligation to adequately develop claims under the Veterans Claims Assistance Act of 2000 (VCAA), see 38 U.S.C. 5103 and 5103A, applies to both ECA participants and non-ECA participants alike. Under the ECA Initiative, VA's responsibilities with respect to both obtaining and analyzing identified evidence remain unchanged. Thus, ECA participants run no additional risk of inadequate evidentiary development as compared to other claimants in the VA system.

We also do not agree with the suggestion that the Initiative sacrifices accuracy for speed. It remains VA's goal to provide all claimants, including ECA participants, with high-quality, legally-correct decisions in all claims. No provision in the ECA Initiative runs counter to this goal. Although the Initiative shortens various statutory and regulatory response times to be observed by participants, it does not diminish VA's duty to fully develop the record as mandated by the VCAA, and accurately decide a claim taking into consideration all relevant facts and applicable law. While one of the commenters is correct that quality assurance is not specifically addressed in the proposed regulations, it is not necessary to include such regulations as both the Veterans Benefits Administration (VBA) and the Board already have robust and established quality assurance programs in place that will be equally applicable to ECA cases. Therefore, for the above reasons, we make no change to the proposed rule based on the concerns raised regarding decision quality and record development.

One commenter expressed concern that the Initiative makes no provision for the Board to issue expedited decisions in appeals of covered claims. The commenter suggested that VA adopt a regulation authorizing the Board to “consider and decide covered claims of participating claimants out of docket order and as soon as practicable upon their transfer to the Board.” Unless the Board adopts such a provision, the commenter stated, the Initiative will not be successful as claimants will not want to participate in a program that does not ensure faster processing time by the Board. The commenter recognized that, as we explained in the notice of proposed rulemaking, the Board is required by statute to consider appeals in docket order, subject to certain enumerated exceptions. See 38 U.S.C. 7107(a) (providing that “each case received pursuant to an application for review on appeal shall be considered and decided in regular order according to its place on the docket”). The commenter presented two recommendations for the Board to deal with this statutory requirement. First, the commenter proposed that “VA must ask Congress to enact legislation to authorize the Board to issue expedited decisions in appeals of covered claims.” Second, the commenter suggested that the Board, pursuant to either 38 U.S.C. 7107 or 38 U.S.C. 501(a), may already have authority to decide ECA appeals out of docket order.

With respect to the commenter's suggestion that VA ask Congress to enact legislation authorizing the Board to decide ECA appeals out of docket order, it was our goal in creating the Initiative to work within the existing statutory framework. While there may be a number of suggested legislative amendments which, if enacted, could potentially improve the VA claims adjudication system, such pursuits are not within the ambit of this rulemaking action or the ECA Initiative. Therefore, we make no changes to the proposed rule based on this suggestion.

We also respectfully disagree with the commenter's suggestion that VA already has the authority to decide ECA cases out of docket order. The commenter specifically argues that ECA cases could be advanced on the Board's docket pursuant to 38 U.S.C. 7107(a)(2). That statutory provision allows the Board to advance a case on its docket “if the case involves interpretation of law of general application affecting other claims;” “if the appellant is seriously ill or is under severe financial hardship;” or “for other sufficient cause shown.” The commenter suggests that the need for expeditious adjudication of ECA appeals constitutes “other sufficient cause” for allowing the Board to advance ECA cases on its docket.

We do not agree with the commenter that the need for expeditious adjudication of appeals under the Initiative constitutes “other sufficient cause” for advancing ECA cases on the docket, as that phrase is used in 38 U.S.C. 7107(a)(2)(C). Consistent with the limited bases for granting a motion to advance as provided in section 7107(a)(2), the Board has narrowly construed “other sufficient cause” as being limited to situations involving either administrative error on the part of VA that resulted in significant delay in docketing the case, or where the appellant is of advanced age (75 or older). See 38 CFR 20.900(c).

Any appeal that is advanced on the Board's docket “goes to the head of the line” and necessarily delays the consideration of all other pending appeals. For every case advanced on the Board's docket, another appellant whose case has not been advanced must wait longer for his or her decision than otherwise would have been necessary. Decisions to grant motions for advancement on the docket are carefully considered on their individual merits. Although it is important that ECA appeals are decided as quickly as possible, we simply do not believe that the policy concerns inherent in advancing ECA cases are tantamount to those involved in cases where advancement has traditionally been allowed. The ECA Initiative is a 2-year pilot program, which, if successful, may provide a basis for expanding some, or all, of the program nationwide. If and when that occurs, it may be appropriate to reconsider the issue of what would be required to properly permit the advance docketing of ECA appeals. In the meantime, although ECA cases will not be automatically advanced on the Board's docket, nothing in the Initiative precludes participants from filing motions for advancement on the docket where such action is otherwise warranted under 38 U.S.C. 7107(a)(2) and 38 CFR 20.900(c), such as where an appellant is at least 75 years of age or suffers from serious illness or severe financial hardship.

Finally, while ECA cases will not be automatically advanced on the Board's docket, it still is anticipated that the Board's use of its screening authority under 38 U.S.C. 7107(f) will result in cases being finally decided by the Board in a faster manner. Once an appeal reaches its place on the docket, the Board often discovers that additional development is required or that questions remain regarding representation, hearing requests, or waivers of Board review of evidence in the first instance. Substantial delay can result while the Board resolves such matters, particularly where the Board has to remand for additional development. Such delays can often add months or years to the appellate process. By screening ECA cases at the Board under 38 U.S.C. 7107(f), the Board is authorized to take action pursuant to 38 CFR 19.9 including: soliciting a waiver from the participant permitting the Board to review new evidence obtained by VA in the first instance; seeking clarification on matters such as representation and hearing requests; and, where necessary, remanding for further development. The Board's screening efforts in this regard will help to ensure that such matters are resolved before an ECA appeal reaches its place on the docket. Thus, when an appeal reaches its place on the docket, the Board should be able to make a final decision on the merits without additional delay, such as would be caused by remanding for further development at that time.

As to the concern raised that claimants will not want to participate in the ECA program unless the Board adopts a provision for advancing such cases on its docket, we simply reiterate that, by pre-screening appeals, cases should be finally decided by the Board more expeditiously than without such early intervention. Moreover, it is noted that, based on longstanding past practice, a majority of cases are resolved before they reach the Board. Most cases processed under the ECA will likewise be resolved at the Agency of Original Jurisdiction (AOJ) level. For those cases that do reach the Board, an earlier docket number will be assigned by virtue of the case having been more quickly processed by the AOJ. For all of the reasons outlined above, we make no change to the proposed rules based on the comments regarding docket order.

One commenter expressed concern that under the Initiative, “participating claimants agree to act within certain time-limits, while the VA, except for one instance, does not.” The commenter stated that, if one of the goals of the Initiative is to “help accelerate the processing of all claims and appeals,” VA will help to achieve this goal if it imposes additional time limits on itself under the Initiative. The commenter submits that “VA must impose time-limits on the four selected VA regional offices and the Board to take necessary action,” and several specific time limits were suggested. We reject this comment for the following reasons.

While the Initiative places only one time limit on VA, see 38 CFR 20.1504(b), this was done to ensure that VA adjudicators are afforded adequate time to gather evidence identified by participants, obtain necessary examinations and medical opinions, and conduct hearings when requested without arbitrary time limits. As the commenter correctly notes, inadequate development can lead to inaccurate decisions, which unfairly deny benefits to deserving claimants. It is therefore critical that all claims processed under the Initiative have fully-developed records including all relevant evidence identified by the participant and any necessary examination reports or medical opinions. While it is certainly helpful for claimants to obtain and submit evidence on their own behalf, the minimal obligation is for a claimant to identify the location of pertinent records and authorize VA to obtain them. In obtaining records from various government and private sources, delays may be experienced in obtaining a response. Given that VA has no control over non-VA organizations and individuals, it is simply not practicable to establish fixed periods of time within which VA must act in this regard, except as otherwise provided in the ECA regulations. In fact, upon further reflection, VA has determined that a limited exception to the time period imposed upon VA in § 20.1504(b) is necessary to ensure fairness and full compliance with the duty to assist. This exception would cover the circumstance when, after issuance of the Statement of the Case (SOC), VA is put on notice of a change in circumstances, such as a worsening of the claimant's condition or the location of previously unobtained relevant evidence. In order to ensure full compliance with the duty to assist under the VCAA, see 38 U.S.C. 5103A, VA may have an obligation to order a new examination for the claimant or to obtain copies of the relevant records. However, due to the time required to schedule and conduct a new examination or locate and obtain new records, these actions may make it challenging, if not impossible, for VA to comply with the time limit in § 20.1504(b), which requires VA to certify and transfer the appellate record to the Board no later than 60 days from the date of filing the Substantive Appeal. Consequently, out of fairness to the claimant, we are amending § 20.1504(b) to create an exception to the 60-day time period for certification when VA is required under 38 U.S.C. 5103A and 38 CFR 3.159(c) to provide assistance in obtaining evidence after issuance of the SOC.

The ECA Initiative does contain distinct time periods for claimants to take certain actions, which we believe are reasonable. Claimants are in the unique position of knowing the dates and places where they received medical treatment relevant to their claims. When the claimant adequately notifies VA of relevant evidence and authorizes VA to obtain the evidence, VA then has a duty to assist the claimant in obtaining this evidence. The sooner that the claimant provides VA with this information and authorization, the more complete the record will be at the beginning of the claims process. This is a significant feature of the ECA Initiative—to develop a complete record as early in the process as possible, so that informed and correct decisions may be made.

Although we refrain from establishing any fixed time limits on VA beyond the one outlined in § 20.1504(b), we want to make clear this does not mean that VA intends to unnecessarily delay action on ECA claims. To the contrary, it is our stated intention to develop and adjudicate ECA claims as quickly as possible by greatly reducing the amount of time that a case sits without any action occurring while waiting for a statutory or regulatory response period to end. Further, we also reject the commenter's suggestion that we impose additional time limits on VA because such action is beyond the scope of this rulemaking and the ECA Initiative. The purpose of the ECA is to evaluate whether claims processing can be expedited by claimants' voluntary waiver of certain existing statutory and regulatory response periods and pre-screening of cases by the Board. It is not the goal of the Initiative to study the feasibility of imposing rating deadlines on VA. Accordingly, for the above reasons, we make no change based on the comments received, but we make one change to the time limit in § 20.1504(b), as discussed.

One commenter stated that the reduced time limits under the Initiative for claimants are likely to result in inadequate records and inaccurate decisions. The commenter noted that several of the time limits to be observed by participants under the Initiative are unduly strict and “unreasonable,” particularly the period participants have to respond to a VCAA notice letter and to subsequent VA requests for information and evidence. The commenter stated that claimants and their representatives often have to wait “weeks or months” to receive requested treatment records from medical-care providers, and that such a wait would likely result in participants missing the aforementioned deadlines. The commenter also noted that claimants' medical conditions often worsen over time and that treatment records reflecting such increase in symptomatology may not be available until after the VCAA notice response period expires.

Additionally, the commenter stated that evidence submitted after the deadlines in § 20.1504(a)(1) and (2) would not be able to be considered by VA, resulting in unfair denials of worthy claims. Further, the commenter added that “there is no provision in the VA's proposed regulations that will permit the claimant to submit * * * newly obtained evidence or information to VA since motions for an extension of time to submit necessary information must be filed with VA before the applicable time period runs.” Finally, the commenter stated that given the difficulties in obtaining medical evidence, VA should not “penalize” participating claimants for circumstances outside of their control.

Although in the notice of proposed rulemaking we stated that ECA participants agree to waive the 1-year period provided under 38 U.S.C. 5103(b)(1) and 38 CFR 3.159(b)(1), we wish to correct that statement. There is no such waiver under the ECA. Rather, an ECA participant must, within 30 days, respond to VA's VCAA notice concerning the information and evidence necessary to substantiate a claim. An ECA participant may respond to VA's notice by providing information or evidence in the claimant's possession, identifying necessary evidence that the claimant requires VA's assistance to obtain, or notifying VA that no additional evidence exists. See 38 CFR 20.1503(d) (Upon executing the Agreement and Waiver of Rights, the participant will identify all relevant evidence in support of his or her claim(s), including any VA records, non-VA Federal records, and any private records, provide the evidence, or notify VA that such evidence does not exist, within the time prescribed in § 20.1504(a)(1)). If the participant does not respond to VA's notice within 30 days, the implied revocation provisions of § 20.1509(c) apply and the claim will be decided using ordinary, non-ECA procedures. However, if the participant responds within 30 days to VA's notice of the information and evidence necessary to substantiate the claim, VA will make reasonable efforts to obtain the evidence the participant has authorized the Department to obtain and adjudicate the claim. 38 U.S.C. 5103A; 38 CFR 3.159(c).

Section 3.159(b)(1) of title 38, Code of Federal Regulations, does not require a claimant to respond to VA's notice within 30 days, although VA may decide the claim if the claimant does not respond. It is our experience that often a claimant does not respond to the notice, VA decides the claim, and then the claimant submits relevant evidence. The ECA is designed to short-circuit this time-consuming adjudication process by requiring a claimant to affirmatively advise VA of the existence of relevant evidence, provide VA with such evidence, or advise VA that no other relevant evidence exists or is available, so that, to the fullest extent possible, all available evidence can be compiled before a claim is adjudicated. In order to clarify our intent, we are revising proposed §§ 20.1503(d) and 20.1504(a)(1) and (2) to explain what type of response is required from an ECA participant within the specified periods.

An ECA participant, nonetheless, has, as provided in 38 U.S.C. 5103(b)(1) and 38 CFR 3.159(b)(1), 1 year from the date of the section 5103(a)—notice in which to submit the information and evidence that VA has notified the participant that the participant must provide. See 38 CFR 20.1500(c) (any matter not otherwise covered by this subpart will be governed by existing rules in this title). If evidence is received by VA after the SOC is issued, the evidence will not be subject to another AOJ adjudication, but instead may be considered by the Board in the first instance. See 38 CFR 20.1508(b).

We are making one additional change to proposed § 20.1504(a)(1) by making the response period 30 days rather than 60 days. This revision to proposed § 20.1504(a)(1) will make it conform to the response period already contained in 38 CFR 3.159(b)(1), as revised by 73 FR 23353, 23356, on April 30, 2008.

In addition, we point out that several of the Initiative's provisions specifically contemplate a participant submitting, and VA considering, evidence after the initial 30-day VCAA notice response period has expired. For example, § 20.1508(b)(2) provides that, if new evidence is submitted by a participant or representative following the issuance of an SOC, the participant will be deemed to have waived AOJ review of such evidence so that the evidence may be considered by the Board in the first instance. Moreover, § 20.1504(a)(6)(iii) allows participants 30 days to submit evidence or argument after their appeals have been certified and transferred to the Board. Any evidence submitted under this provision would necessarily be filed after the 30-day VCAA response period has elapsed.

While participants and their representatives should be as thorough as possible in responding to VCAA notice letters or follow-up information requests, evidence submitted or identified after the expiration of the 30-day response periods will still be considered by the AOJ or the Board, provided such submission is allowed under other provisions of law. The remainder of the comments expressing concern that the ECA will result in inadequate records and inaccurate decisions are rejected for the reasons discussed above.

One commenter stated that the “good cause” exception for each of the enumerated time limits is unduly strict and should be liberalized to ensure the success of the Initiative. The commenter's primary concern focused on the use of the good cause exception as it relates to the 60-day time period in proposed § 20.1504(a)(1) (now changed to 30-days in the final rule) for responding to a VCAA notice letter under the Initiative. The comment appears to be based on the assumption that VA will not consider evidence submitted after the VCAA notice response period has expired. As explained in section C.2 above, ECA participants do not waive the 1-year period prescribed in section 5103(a). An ECA participant is not required to submit all evidence relating to their claim within 30 days of the date of VA's section-5103(a) notice. Rather, as explained above, what we intend is that an ECA participant will be required to respond to VA's notice either by providing the evidence requested, identifying evidence relevant to substantiating the claim and authorizing VA to obtain the evidence, or notifying VA that no such evidence exists.

ECA participants are not necessarily required to submit any evidence at all within the response period in § 20.1504(a)(1) or (2), though they are free to do so. All a participant has to do to comply with the notice response period(s) is to affirmatively respond by identifying the relevant evidence then in existence and authorizing VA to obtain such evidence or notifying VA that no such evidence exists. See 38 CFR 20.1503(d). It is then VA's responsibility to make reasonable attempts to obtain relevant evidence identified by the ECA participant, including any private evidence that the claimant adequately identifies and authorizes VA to obtain. 38 U.S.C. 5103A(b). Therefore, because a sufficient response to a VA request for information and evidence only requires the identification of relevant information or evidence, if any, within the allowed response period, along with providing VA with authorization to obtain the same, we disagree with the commenter's suggestion that the good cause exception as provided for in § 20.1509(e), as it applies to responding to VA's section-5103(a) notice, is inadequate as drafted.

Because participants are not barred from submitting additional evidence following the expiration of the response periods set forth in § 20.1504(a)(1) and (a)(2), an extension motion is not required to submit evidence after those periods have expired. An extension motion, as described in § 20.1509(e), is only needed if the participant wishes to extend a time limit in subpart P, most of which consist of response times. See 38 CFR 20.1504(a).

Finally, it is noted that the commenter seems to take an unduly restrictive interpretation of the situations for which a motion for extension of time may be granted pursuant to § 20.1509(e). While examples are provided of situations in which good cause may be found, such as “illness of the participant or the representative of such severity that precludes action during the period,” the proposed regulation specifically states that the examples of good cause provided “include, but are not limited to,” the enumerated examples. Accordingly, provided that a participant makes a timely request for an extension of time with adequate showing of good cause, the participant may obtain an extension of time. Accordingly, for all of these reasons, we make no change to the proposed rule based on this comment.

One commenter expressed concern regarding VA's data collection activities under the Initiative. The commenter stated that it is “essential that good work load data and other management data be collected * * * and that this information be used internally and made available publicly so that the Initiative's new procedures can be carefully evaluated on an ongoing basis.” The commenter suggested several pieces of information that should be tracked, including “the number of claimants that volunteer for the program, how long each stays in the program, if they are voluntarily or involuntarily dismissed from the program, and what results are reached.” The commenter also suggested that data collected at participating VA regional offices be compared to that obtained at a control group of non-participating offices.

While we wholeheartedly agree with the commenter that comprehensive data collection will be critical to accurately evaluate the success of the Initiative, the description of such data collection efforts is not necessary or appropriate for inclusion in this rulemaking action. Suffice it to say, we plan to gather a wide variety of information throughout the course of the Initiative to ensure that all aspects of the pilot program are carefully reviewed and evaluated. As the commenter suggests, the information we intend to track includes, among many other things, the number of participants, the number of instances of revocation of participation, processing times, and the ultimate disposition of ECA claims. We plan on tracking customer satisfaction with the ECA to help assess the strengths and weaknesses of the Initiative. Moreover, we intend to compare all data collected regarding ECA participants with data from claimants who did not elect ECA participation. All data collected and reports generated as part of the Initiative will be obtainable by the public in the same manner and means as other VA data and reports. Accordingly, we make no change to the proposed rule based on this comment.

One commenter questioned the need for the ECA, pointing out that there was no discernable advantage that claimants would receive from participation in the ECA, “other than that which would be expected to naturally flow from submitting procedural documents and evidence as soon as practicable.” The commenter suggested “that the RO speed up the certification and transfer time to the BVA, unilaterally, and encourage claimants to unilaterally proceed with their appeal as quickly as possible, without the necessity of waiving procedural defects and without the need for rule changes.” For all of the many reasons already discussed above, as well as in the notice of proposed rulemaking, VA respectfully disagrees with the assertion that claimants will not benefit from participating in the ECA. Moreover, because the Initiative is specifically designed as a 2-year pilot project at a limited number of VA facilities, the data collected during this period of time will enable a more fully informed assessment of the success and weaknesses of the Initiative to be made, including whether it should be further expanded.

In addition, it is noted that participation in the ECA will be entirely voluntary. Accordingly, any claimant who does not feel comfortable participating in the program, or does not feel that participation would be advantageous, is free to proceed under the existing VA claims adjudication and appeals process. Further, any ECA participant will be able to opt out of the Initiative at anytime without any negative consequences for doing so. Instead, the claim or appeal will simply be returned to the normal claims adjudication and appeals process at the point at which the participant withdrew from the program. Thus, participation could never be disadvantageous to a claimant.

Finally, as correctly noted by another commenter, the ECA Initiative does not change VA's basic obligation to assure that the varying parts of its benefits programs “work together to give prompt, efficient, fair, and accurate service to disabled veterans and other claimants for VA benefits.” We agree with this proposition. As discussed at length above, the Initiative leaves intact VA's duties to notify claimants of the information and evidence needed to substantiate their claim, and VA's duty to assist claimants in obtaining relevant evidence, including securing a VA examination when required by existing law. At every point in the Initiative, the paternalistic and non-adversarial nature of the VA claims adjudication system is preserved. Thus, for all of the above reasons, we make no changes based on these comments.

Finally, one commenter expressed concern that the ECA Initiative would have an adverse impact on the overall workload at the Philadelphia regional office, which is one of the trial sites. He noted that Philadelphia currently handles many cases that are “brokered” from the Boston regional office, and stated that the addition of ECA cases to Philadelphia's workload will negatively impact the processing of the brokered cases. The commenter also raised some general concerns with VBA's case brokering process that are beyond the scope of this rulemaking action and will not be further addressed here.

We respectfully disagree with the commenter's concerns. To be eligible to participate in the Initiative, a claimant must reside within the jurisdiction of one of the four participating VA regional offices (the jurisdiction of each of the four participating regional offices is specifically outlined in § 20.1501(e)). As a result of this requirement, the Philadelphia regional office would only be allowed to handle ECA claims from participants who already reside within the jurisdiction of that office. Such claims would already have been the responsibility of the Philadelphia regional office, regardless of a claimant's decision to participate in the Initiative. Because ECA participants are taken from the same pool of claimants already being served by the four respective participating regional offices, the Initiative simply will not increase the number of claims handled by each office, and therefore will not have an impact on the overall workload of any of the test sites, including the Philadelphia regional office. Moreover, even in the unlikely event that Philadelphia's workload did increase, VBA would be free, at the discretion of management, to reduce or discontinue the brokering of cases to that office and instead broker Boston cases to another facility. We make no changes to the proposed rule based on these comments.

In addition to the revisions discussed above, we are making three minor technical changes to the proposed rule, and one change regarding the pilot sites. First, we are changing the language in § 20.1500(d) to more clearly set forth the effective date of the Initiative. Second, we are making a minor revision to § 20.1501(d) to clarify that representatives of ECA participants must be accredited by VA. See 38 CFR 14.631. Third, we are adding a cross-reference and brief discussion to § 20.1508(b)(1) to more clearly indicate that an implied revocation from the Initiative will occur if a participant does not agree to waive initial consideration by the agency of original jurisdiction of any new evidence obtained by VA following the issuance of a Statement of the Case. See 38 CFR 20.1509(c)(2).

In addition to the foregoing, we are changing one of the four pilot sites due to increased workload that has arisen at the St. Paul regional office since publication of the NPRM. The St. Paul, Minnesota regional office will no longer be involved in the ECA pilot program. Rather, the regional office in Lincoln, Nebraska, will be one of the four pilot sites. The jurisdiction of the Lincoln regional office extends to the entire State of Nebraska.

This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).

The Secretary hereby certifies that this rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. It will not affect any small organizations or small governmental jurisdictions, and will not have a significant economic impact on these small entities. Therefore, pursuant to 5 U.S.C. 605(b), this rule is exempt from the initial and final regulatory flexibility analysis requirement of 5 U.S.C. 603 and 604.

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 Executive Order classifies a “significant regulatory action,” requiring review by the Office of Management and Budget (OMB) unless OMB waives such review, as any regulatory action 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.

The economic, interagency, budgetary, legal, and policy implications of this rule have been examined and it has been determined to be a significant regulatory action under Executive Order 12866, as it raises novel legal or policy issues arising out of legal mandates.

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in an expenditure by State, local, and tribal governments, in the aggregate, or by the private sector of $100 million or more (adjusted annually for inflation) in any 1 year. This rule would have no such effect on State, local, and tribal governments, or on the private sector.

The Catalog of Federal Domestic Assistance program numbers and titles for this proposal are 64.100, Automobiles and Adaptive Equipment for Certain Disabled Veterans and Members of the Armed Forces; 64.101, Burial Expenses Allowance for Veterans; 64.102, Compensation for Service-Connected Deaths for Veterans' Dependents; 64.103, Life Insurance for Veterans; 64.104, Pension for Non-Service-Connected Disability for Veterans; 64.105, Pension to Veterans Surviving Spouses, and Children; 64.106, Specially Adapted Housing for Disabled Veterans; 64.109, Veterans Compensation for Service-Connected Disability; 64.110, Veterans Dependency and Indemnity Compensation for Service-Connected Death; 64.114, Veterans Housing-Guaranteed and Insured Loans; 64.115, Veterans Information and Assistance; 64.116, Vocational Rehabilitation for Disabled Veterans; 64.117, Survivors and Dependents Educational Assistance; 64.118, Veterans Housing-Direct Loans for Certain Disabled Veterans; 64.119, Veterans Housing-Manufactured Home Loans; 64.120, Post-Vietnam Era Veterans' Educational Assistance; 64.124, All-Volunteer Force Educational Assistance; 64.125, Vocational and Educational Counseling for Servicemembers and Veterans; 64.126, Native American Veteran Direct Loan Program; 64.127, Monthly Allowance for Children of Vietnam Veterans Born with Spina Bifida; and 64.128, Vocational Training and Rehabilitation for Vietnam Veterans' Children with Spina Bifida or Other Covered Birth Defects.

EPA is promulgating the withdrawal of the Federal water quality standards designating cold water biota uses for Soda Creek and portions of Canyon Creek, South Fork Coeur d'Alene River, and Blackfoot River in Idaho. EPA published the proposal for this final rulemaking on August 19, 2008. EPA is taking further action to withdraw a direct final rule that EPA published on August 19, 2008 (73 FR 48300). We stated in that direct final rule that if we received adverse comment by September 18, 2008, the direct final rule would not take effect, and we would publish a timely withdrawal in the Federal Register . EPA received two comments which could be viewed as adverse comments. Importantly, because the comments when considered by EPA did not result in a change in EPA's position, the direct final rule would have resulted in the same action EPA is taking by this final rule. As stated in the direct final rule and the parallel proposed rule, we have not instituted a second comment period on this action.

In July 1997, EPA promulgated a Federal rule designating uses for water bodies in the State of Idaho, including the designation of cold water biota for Soda Creek, and portions of Canyon Creek, South Fork Coeur d'Alene River, and Blackfoot River, with the exception of any portion in Indian country (62 FR 41183, July 31, 1997). In March 2000, Idaho adopted a revised use for a segment of Blackfoot River, which changed from “Protected for Future Use” to undesignated. In Idaho, undesignated waters are protected for all recreational use in and on the water and for the propagation of fish, shellfish, and wildlife (IDAPA 58.01.02.101.01). In March 2002, Idaho adopted a use designation of cold water biota for segments of Canyon Creek and South Fork Coeur d'Alene River. In March 2006, Idaho adopted a revised use for Soda Creek, which changed from “NONE” to undesignated. As described in the undesignated surface waters provision of Idaho's Water Quality Standards (IDAPA 58.01.02.101.01.a), the Idaho Department of Environmental Quality (IDEQ) applies cold water aquatic life criteria to undesignated waters because it is presumed that most waters in the State will support cold water aquatic life. Thus, cold water aquatic life criteria now apply to Soda Creek and the segment of the Blackfoot River. EPA approved Idaho's revised water quality standards for segments of Canyon Creek and South Fork Coeur d'Alene River on June 24, 2005, and for Soda Creek on August 15, 2006. EPA approved Idaho's revised water quality standards for the segment of the Blackfoot River, except for any portion in Indian country, on August 22, 2006. Thus, the Federal water quality standards designating Soda Creek and portions of Canyon Creek, South Fork Coeur d'Alene River, and Blackfoot River for cold water biota use (40 CFR 131.33(b)) are no longer necessary, and EPA is promulgating the withdrawal of these standards with this action. EPA is also promulgating the withdrawal of the water quality standards variance provision applicable to these uses (40 CFR 131.33(d)), because this provision is no longer necessary given the withdrawal of the Federal water quality standards designating these uses.

Citizens concerned with water quality in Idaho may be interested in this rulemaking. Entities discharging pollutants to Soda Creek, Canyon Creek, South Fork Coeur d'Alene, and Blackfoot River in Idaho could be indirectly affected by this rulemaking because water quality standards are used in determining National Pollutant Discharge Elimination System (NPDES) permit limits. Because this action withdraws the Federal water quality standards designating cold water biota uses that are no longer necessary since EPA approved Idaho's adopted uses that result in protection for cold water biota, the effect of this rulemaking may only occur when entities seek variances to water quality standards. Entities seeking variances from use designations on these waters will now apply to the state, and EPA will act on the state's decision to grant the variance.

Categories and entities that may ultimately be affected include:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding NPDES regulated entities likely to be affected by this action. This table lists the types of entities that EPA is now aware could potentially be affected by this action.

On July 31, 1997, pursuant to section 303(c) of the Clean Water Act (CWA), EPA promulgated water quality standards for Idaho, which designated several water body segments for cold water biota use. These segments included: a segment of the Blackfoot River, then identified as USB 360—Equalizing Dam to mouth (with the exception of any portion in Indian country); a segment of Canyon Creek (segment PB 121)—below mining impact; a segment of South Fork Coeur d'Alene River (segment PB 140S)—Daisy Gulch to mouth; and Soda Creek (segment BB 310)—source to mouth.

A. Blackfoot River: In March 2000, the Idaho Legislature adopted revised water quality standards, providing an undesignated use for the segment of the Blackfoot River that the Federal rule addressed (IDAPA 58.01.02.150.09). In Idaho, undesignated waters are protected for all recreational use in and on the water and for the propagation of fish, shellfish, and wildlife (IDAPA 58.01.02.101.01). Given the flow limitations on the Blackfoot River segment, IDEQ removed the aquatic life use designation of “Protected for Future Use” from the Blackfoot River segment and left the use undesignated so that a more appropriate aquatic use designation may be described and added to Idaho water quality standards in the future. As described in the undesignated surface waters provision (IDAPA 58.01.02.101.01.a), IDEQ applies cold water aquatic life criteria to undesignated waters because it is presumed that most waters in the State will support cold water aquatic life. As EPA stated in its approval letter of August 22, 2006, EPA considers Idaho's revision to provide a default cold water aquatic life use designation for the Blackfoot River segment, except for any portion in Indian country. EPA would consider any change in the level of protection afforded to the Blackfoot River segment to be a revision to Idaho's water quality standards, subject to EPA review pursuant to 40 CFR Part 131. The water quality standards revision also included a reformatting and renumbering of the Water Body/Basin Designation Tables and the segment of the Blackfoot River previously identified as USB 360 (Equalizing Dam to mouth) was renumbered to US-1 (Fort Hall Main Canal diversion to mouth), which is within the Blackfoot Subbasin of the Upper Snake Basin. Thus, cold water aquatic life criteria now apply to the US-1 segment of the Blackfoot River, which was formerly identified as USB 360. EPA approved Idaho's revision, except for any portion in Indian country, on August 22, 2006. The 1997 promulgation establishing the Federal water quality standards designating uses for Blackfoot River did not apply to waters in Indian country; likewise, EPA's approval of the state's designated use for Blackfoot River excludes waters in Indian country.

B. Canyon Creek and South Fork Coeur d'Alene River: On March 15, 2002, the Idaho Legislature adopted revised water quality standards, including the cold water biota designated use for Canyon Creek, which was previously identified as PB 121 (below mining impact) and is now renumbered and renamed segment P-14 (from and including Gorge Gulch to mouth); and South Fork Coeur d'Alene River, which was previously identified as segment PB 140S and is now renumbered and includes two segments: Segment P-1 (Canyon Creek to mouth) and segment P-11 (from and including Daisy Gulch to Canyon Creek) (IDAPA 58.01.02.110.09). Canyon Creek and the South Fork Coeur d'Alene River are within the South Fork Coeur d'Alene River Subbasin of the Panhandle Basin. Canyon Creek in its entirety, including segments P-14 (from and including Gorge Gulch to mouth) and P-15 (source to Gorge Gulch), is designated for cold water biota. The South Fork Coeur d'Alene River is also designated for cold water biota use in its entirety; the South Fork Coeur d'Alene River upstream of Daisy Gulch (segment P-13—source to Daisy Gulch) was already designated as a cold water biota use. When the State first established its water quality standards, it included the phrase “below mining impact” to identify a number of stream segments in order to account for the lingering adverse environmental effects of numerous abandoned mines in the State. EPA recognized the concerns of the State and used the same terminology in its promulgation of Federal standards on July 31, 1997. EPA approved Idaho's revisions on June 24, 2005.

C. Soda Creek: In March 2006, the Idaho Legislature adopted revised water quality standards, removing the use designation of “NONE” and providing an undesignated use for Soda Creek. In Idaho, undesignated waters are protected for all recreational use in and on the water and for the propagation of fish, shellfish, and wildlife (IDAPA 58.01.02.101.01). Soda Creek had been identified as segment BB 310 (source to mouth) and is now renumbered and includes three segments: segments B-23 (Soda Creek Reservoir Dam to Alexander Reservoir), B-24 (Soda Creek Reservoir), and B-25 (source to Soda Creek Reservoir) in the South Fork Clearwater Subbasin of the Clearwater Basin (IDAPA 58.01.02.160.02). IDEQ initially proposed that Soda Creek be designated for coldwater aquatic life use. However, due to a lack of data, particularly water temperature records, showing that cold water aquatic life criteria were met, Soda Creek was left undesignated. As described in the undesignated surface waters provision (IDAPA 58.01.02.101.01.a), IDEQ applies cold water aquatic life criteria to undesignated waters because it is presumed that most waters in the State will support cold water aquatic life. Thus, cold water aquatic life criteria now apply to Soda Creek. EPA approved Idaho's revision on August 15, 2006. As EPA stated in this approval letter, EPA considers Idaho's revision to provide a default cold water aquatic life use designation for Soda Creek. EPA would consider any change in the level of protection afforded to Soda Creek to be a revision to Idaho's water quality standards, subject to EPA review pursuant to 40 CFR Part 131.

D. EPA-approved Use Designations and Criteria: For Blackfoot River (US-1) and Soda Creek (B-23, B-24, and B-25), the State now applies an undesignated use that is practically equivalent to the aquatic life use established by EPA in its July 31, 1997, rulemaking because cold water biota criteria apply. Specifically, Idaho's undesignated surface waters provision states (IDAPA 58.01.02.101):

On August 19, 2008 (73 FR 48351), EPA proposed to withdraw the Federal water quality standards designating Soda Creek and portions of Canyon Creek, South Fork Coeur d'Alene River, and Blackfoot River for cold water biota use, on the grounds that these Federal standards are no longer necessary, in light of Idaho's subsequent revisions to its state water quality standards.

One commenter was concerned that the proposed withdrawal of Federal water quality standards would reduce water quality monitoring requirements for Soda Creek and the pertinent portions of Canyon Creek, South Fork Coeur d'Alene River, and Blackfoot River. However, EPA's withdrawal of Federal water quality standards neither removes nor imposes any requirements regarding water quality monitoring for these waters. EPA's final rule only removes the Federal use designation for the waters. State water quality standards identical or equivalent to those being withdrawn have been adopted by Idaho and have been approved by EPA. Therefore, the Federal water quality standards are no longer necessary.

Another commenter believed it should be made clear that site-specific aquatic life criteria for lead, zinc, and cadmium, which can be found at IDAPA 58.01.02.284, apply to Canyon Creek and South Fork Coeur d'Alene River. EPA agrees, and has revised the preamble to this rule accordingly. The commenter also noted an additional typographical error, which EPA has corrected in the final rule.

EPA is promulgating, as proposed, the rule to withdraw the Federal water quality standards that designated uses for Soda Creek and portions of Canyon Creek, South Fork Coeur d'Alene River, and Blackfoot River. For the reasons set forth in Section II, EPA's action does not change the water quality criteria that apply to these water bodies. Idaho's water quality criteria that provide protection for the cold water aquatic life use are found in several sections of Idaho's water quality standards. Specifically, the general surface water criteria applicable to all surface waters in Idaho are provided in IDAPA 58.01.02.200, and numeric criteria for toxic substances for waters designated for aquatic life use apply per IDAPA 58.01.02.210.01.a. IDAPA 58.01.02.250 provides additional aquatic life criteria applicable to the segments from which the Federal water quality standards are being withdrawn, including general criteria for pH and dissolved gas that apply to all aquatic life use designations (IDAPA 58.01.02.250.01), as well as cold water criteria for dissolved oxygen, temperature, ammonia (acute and chronic), and turbidity that apply to waters designated for cold water aquatic life (IDAPA 58.01.02.250.02). IDAPA 58.01.02.284 provides site-specific aquatic life criteria for lead, zinc, and cadmium that apply in Canyon Creek and South Fork Coeur d'Alene River.

When, in July 31, 1997, EPA originally promulgated Federal water quality standards designating uses for Idaho waters (62 FR 41162), EPA also included a water quality standards variance provision (40 CFR 131.33(d)) authorizing the EPA Region 10 Regional Administrator to grant variances from the Federal water quality standards that designated the cold water biota uses. Because this final rule removes the Federal water quality standards designating these uses, provision 40 CFR 131.33(d) is no longer necessary and is also being withdrawn. EPA received no comments on the portion of the proposed rule withdrawing the water quality standards variance provision. EPA is therefore promulgating, as proposed, this portion of the rule. Idaho has adopted its own water quality standards variance provision (IDAPA 58.01.02.260), which was approved by EPA on June 25, 1996.

This rule withdraws Federal requirements applicable to Idaho and imposes no regulatory requirements on any person or entity, does not interfere with the action or planned action of another agency, and does not have any budgetary impacts or raise novel legal or policy issues. The rule imposes no additional cost on the regulated community because it will not change the level of environmental protection already achieved. The rule imposes only minimal additional effort on the State of Idaho as the regulator, because entities seeking variances from use designations will now apply to the state instead of to EPA. Thus, it has been determined that this rule is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the Executive Order (EO).

This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ), because it is administratively withdrawing Federal requirements that no longer need to apply to Idaho.

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, generally requires an agency to prepare a regulatory flexibility analysis of a rule that is subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of this rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

This rule imposes no regulatory requirements or costs on any small entity. Therefore, I certify that this rule will not have a significant economic impact on a substantial number of small entities.

Title II of the Unfunded Mandates Reform Act (UMRA), Public Law 104-4 establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, Tribal, and local governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

This rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, Tribal, or local governments or the private sector because it imposes no enforceable duty on any of these entities. Thus, this rule is not subject to the requirements of UMRA sections 202 and 205. Similarly, EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments and is therefore not subject to UMRA section 203.

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

This rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This rule imposes no regulatory requirements on any State, Tribal, or local government. The rule imposes only minimal additional effort on the State of Idaho as the regulator, because entities seeking variances from use designations will now apply to the state instead of to EPA. Thus, Executive Order 13132 does not apply to this rule.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This rule does not have tribal implications, as specified in Executive Order 13175. It imposes no regulatory requirements or costs on any Tribal government. It does not have substantial direct effects on Tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes. Thus, Executive Order 13175 does not apply to this rule.

This rule is not subject to EO 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant as defined in EO 12866, and EPA has no reason to believe the environmental health or safety risks addressed by this rule present a disproportionate risk to children.

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

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law No. 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

This rule does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.

Executive Order 12898 (59 FR 7629, February 16, 1994) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.

EPA has determined that this rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations, because it does not affect the level of protection provided to human health or the environment.

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2) and will be effective on December 5, 2008.

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

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

Under section 408(g) of FFDCA, 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2008-0571. in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before January 5, 2009.

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit your copies, identified by docket ID number EPA-HQ-OPP-2008-0571, 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 Facility'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 August 13, 2008 (73 FR 47184) (FRL-8376-8), EPA issued a notice pursuant to section 408 of FFDCA, 21 U.S.C. 346a, announcing the receipt of a pesticide petition (PP 8E7397) filed by Keller and Heckman LLP, 1001 G St., NW, Suit, 500 Washington, DC 20001 as U.S. agent for Eka Chemicals AB, 455 80 Bobus, Sweden. The petition requested that 40 CFR 180.960 be amended by establishing an exemption from the requirement of a tolerance for residues of silane, trimethoxy[3-(oxiranylmethoxy)propyl]-, hydrolysis products with silica; CAS Reg. No. 68584-82-7. That notice included a summary of the petition prepared by the petitioner and solicited comments on the petitioner's request. The Agency received one comment. One comment was received from a private citizen who opposed the authorization to sell any pesticide that leaves a residue on food.

The Agency understands the commenter's concerns and recognizes that some individuals believe that no residue of pesticides should be allowed. However, under the existing legal framework provided by section 408 of the Federal Food, Drug and Cosmetic Act (FFDCA) EPA is authorized to establish pesticide tolerances or exemptions where persons seeking such tolerances or exemptions have demonstrated that the pesticide meets the safety standard imposed by that statute.

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

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

Consistent with section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. In the case of certain chemical substances that are defined as polymers, the Agency has established a set of criteria to identify categories of polymers expected to present minimal or no risk. The definition of a polymer is given in 40 CFR 723.250(b) and the exclusion criteria for identifying these low-risk polymers are described in 40 CFR 723.250(d). Silane, trimethoxy[3-(oxiranylmethoxy)propyl]-, hydrolysis products with silica conforms to the definition of a polymer given in 40 CFR 723.250(b) and meets the following criteria that are used to identify low-risk polymers.

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

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

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

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

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

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

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

7. The polymer's number average MW of 640,000 daltons is greater than or equal to 10,000 daltons. The polymer contains less than 2% oligomeric material below MW 500 and less than 5% oligomeric material below MW 1,000.

Thus, silane, trimethoxy[3-(oxiranylmethoxy)propyl]-, hydrolysis products with silica meets the criteria for a polymer to be considered low risk under 40 CFR 723.250. Based on its conformance to the criteria in this unit, no mammalian toxicity is anticipated from dietary, inhalation, or dermal exposure to silane, trimethoxy[3-(oxiranylmethoxy)propyl]-, hydrolysis products with silica.

For the purposes of assessing potential exposure under this exemption, EPA considered that silane, trimethoxy[3-(oxiranylmethoxy)propyl]-, hydrolysis products with silica could be present in all raw and processed agricultural commodities and drinking water, and that non-occupational non-dietary exposure was possible. The number average MW of silane, trimethoxy[3-(oxiranylmethoxy)propyl]-, hydrolysis products with silica is 640,000 daltons. Generally, a polymer of this size would be poorly absorbed through the intact gastrointestinal tract or through intact human skin. Since silane, trimethoxy[3-(oxiranylmethoxy)propyl]-, hydrolysis products with silica conform to the criteria that identify a low-risk polymer, there are no concerns for risks associated with any potential exposure scenarios that are reasonably foreseeable. The Agency has determined that a tolerance is not necessary to protect the public health.

Section 408 (b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance or tolerance exemption, the Agency consider “available information” concerning the cumulative effects of a particular chemical's residues and “other substances that have a common mechanism of toxicity.” For the purposes of this tolerance action, EPA has not assumed that silane, trimethoxy[3-(oxiranylmethoxy)propyl]-, hydrolysis products with silica has a common mechanism of toxicity with other substances, based on the anticipated absence of mammalian toxicity. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see the policy statements released by EPA's Office of Pesticide Programs concerning common mechanism determinations and procedures for cumulating effects from substances found to have a common mechanism on EPA's website at http://www.epa.gov/pesticides/cumulative .

Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base unless EPA concludes that a different margin of safety will be safe for infants and children. Due to the expected low toxicity of silane, trimethoxy[3-(oxiranylmethoxy)propyl]-, hydrolysis products with silica, EPA has not used a safety factor analysis to assess the risk. For the same reasons the additional tenfold safety factor is unnecessary.

Based on the conformance to the criteria used to identify a low-risk polymer, EPA concludes that there is a reasonable certainty of no harm to the U.S. population, including infants and children, from aggregate exposure to residues of silane, trimethoxy[3-(oxiranylmethoxy)propyl]-, hydrolysis products with silica.

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

The Agency is not aware of any country requiring a tolerance for silane, trimethoxy[3-(oxiranylmethoxy)propyl]-, hydrolysis products with silica nor have any CODEX Maximum Residue Levels (MRLs) been established for any food crops at this time.

Accordingly, EPA finds that exempting residues of silane, trimethoxy[3-(oxiranylmethoxy)propyl]-, hydrolysis products with silica from the requirement of a tolerance will be safe.

This final rule establishes a tolerance under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these rules 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, entitled 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 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).

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, or otherwise have any unique impacts or local governments. 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).

Although this action does not 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), EPA seeks to achieve environmental justice, the fair treatment and meaningful involvement of any group, including minority and/or low-income populations, in the development, implementation, and enforcement of environmental laws, regulations, and policies. As such, to the extent that information is publicly available or was submitted in comments to EPA, the Agency considered whether groups or segments of the population, as a result of their location, cultural practices, or other factors, may have atypical or disproportionately high and adverse human health impacts or environmental effects from exposure to the pesticide discussed in this document, compared to the general population.

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

You may be potentially affected by this action if you manufacture, import, process, or use the chemical substances contained in this rule. Potentially affected entities may include, but are not limited to:

• Manufacturers, importers, or processors of one or more subject chemical substances (NAICS codes 325 and 324110), e.g., Chemical manufacturing and petroleum refineries.

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in 40 CFR 721.5. If you have any questions regarding the applicability of this action to a particular entity, consult the technical person listed under FOR FURTHER INFORMATION CONTACT .

This action may also affect certain entities through pre-existing import certification and export notification rules under TSCA. Persons who import any chemical substance governed by a final SNUR are subject to the TSCA section 13 (15 U.S.C. 2612) import certification requirements and the corresponding regulations at 19 CFR 12.118 through 12.127 and 19 CFR 127.28. Those persons must certify that the shipment of the chemical substance complies with all applicable rules and orders under TSCA, including any SNUR requirements. The EPA policy in support of import certification appears at 40 CFR part 707, subpart B. In addition, any persons who export or intend to export a chemical substance that is the subject of this rule on or after [ December 5, 2008 ] are subject to the export notification provisions of TSCA section 12(b) (15 U.S.C. 2611(b)) (see 40 CFR 721.20), and must comply with the export notification requirements in 40 CFR part 707, subpart D.

1. Submitting CBI . Do not submit this information to EPA through regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for preparing your comments . When submitting comments, remember to:

i. Identify the document by docket ID number and other identifying information (subject heading, Federal Register date and page number).

ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

iv. Describe any assumptions and provide any technical information and/or data that you used.

v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

vi. Provide specific examples to illustrate your concerns and suggest alternatives.

vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

viii. Make sure to submit your comments by the comment period deadline identified.

EPA is promulgating these SNURs using direct final rulemaking procedures. These SNURs will require persons to notify EPA at least 90 days before commencing the manufacture, import, or processing of a chemical substance for any activity designated by these SNURs as a significant new use. Additional rationale and background to this rule are more fully set out in the preamble to EPA's first direct final SNUR published in the Federal Register of April 24, 1990 (55 FR 17376). Consult that preamble for further information on the objectives, rationale, and procedures for SNURs and on the basis for significant new use designations, including provisions for developing test data.

Section 5(a)(2) of TSCA (15 U.S.C. 2604(a)(2)) authorizes EPA to determine that a use of a chemical substance is a “significant new use.” EPA must make this determination by rule after considering all relevant factors, including those listed in TSCA section 5(a)(2). Once EPA determines that a use of a chemical substance is a significant new use, TSCA section 5(a)(1)(B) requires persons to submit a significant new use notice (SNUN) to EPA at least 90 days before they manufacture, import, or process the chemical substance for that use. The mechanism for reporting under this requirement is established under 40 CFR 721.5.

General provisions for SNURs appear under 40 CFR part 721, subpart A. These provisions describe persons subject to the rule, recordkeeping requirements, exemptions to reporting requirements, and applicability of the rule to uses occurring before the effective date of the final rule. Provisions relating to user fees appear at 40 CFR part 700. According to 40 CFR 721.1(c), persons subject to these SNURs must comply with the same notice requirements and EPA regulatory procedures as submitters of PMNs under TSCA section 5(a)(1)(A). In particular, these requirements include the information submission requirements of TSCA section 5(b) and 5(d)(1), the exemptions authorized by TSCA section 5(h)(1), (h)(2), (h)(3), and (h)(5), and the regulations at 40 CFR part 720. Once EPA receives a SNUN, EPA may take regulatory action under TSCA section 5(e), 5(f), 6, or 7 to control the activities on which it has received the SNUN. If EPA does not take action, EPA is required under TSCA section 5(g) to explain in the Federal Register its reasons for not taking action.

Persons who export or intend to export a chemical substance identified in a proposed or final SNUR are subject to the export notification provisions of TSCA section 12(b). The regulations that interpret TSCA section 12(b) appear at 40 CFR part 707, subpart D. Persons who import a chemical substance identified in a final SNUR are subject to the TSCA section 13 import certification requirements, codified at 19 CFR 12.118 through 12.127 and 19 CFR 127.28. Such persons must certify that the shipment of the chemical substance complies with all applicable rules and orders under TSCA, including any SNUR requirements. The EPA policy statement in support of the import certification appears at 40 CFR part 707, subpart B.

EPA is establishing significant new use and recordkeeping requirements for 56 chemical substances under 40 CFR part 721, subpart E. In this unit, EPA provides the following information for each chemical substance:

• PMN number.

• Chemical name (generic name if the specific name is claimed as CBI).

• CAS number (if assigned for non-confidential chemical identities).

• Basis for the TSCA section 5(e) consent order or, for non-section 5(e) SNURs, the basis for the SNUR.

• Toxicity concerns.

• Tests recommended by EPA to provide sufficient information to evaluate the chemical substance (see Unit VI. for more information).

• CFR citation assigned in the regulatory text section of this rule.

The specific activities designated as significant new uses are specified in the regulatory text section of this document. Certain new uses, including production limits and other uses designated in the rule, are claimed as CBI. The procedure for obtaining confidential information is set out in Unit VII.

This rule includes SNURs on 3 PMN substances that are subject to “risk-based” consent orders under TSCA section 5(e)(1)(A)(ii)(I) wherein EPA determined that activities associated with the PMN substances may present unreasonable risk to health or the environment. Those consent orders require protective measures to limit exposures or otherwise mitigate the potential unreasonable risk. The so-called “5(e) SNURs” on these substances are promulgated pursuant to 40 CFR 721.160, and are based on and consistent with the provisions in the underlying consent orders. In addition, the rule includes one SNUR on a PMN substance that is subject to an “exposure-based” consent order under section 5(e)(1)(A)(ii)(II) wherein EPA determined that the PMN substance is expected to be produced in substantial quantities, there may be significant or substantial human exposure, and the substance may enter the environment in substantial quantities. That consent order requires submission of certain test data to EPA before the manufacturer may exceed a specified production volume. These SNURs designate as a “significant new use” the absence of the protective measures or exceedance of the production volume limit required in the consent orders.

Where EPA determined that the PMN substance may present an unreasonable risk of injury to human health via inhalation exposure, the underlying TSCA section 5(e) consent order usually requires, among other things, that potentially exposed employees must wear specified respirators unless actual measurements of the workplace air show that air-borne concentrations of the PMN substance are below a New Chemical Exposure Limit (NCEL) that is established by EPA to provide adequate protection to human health. In addition to the actual NCEL concentration, the comprehensive NCELs provisions in TSCA section 5(e) consent orders, which are modeled after Occupational Safety and Health Administration (OSHA) Permissible Exposure Limits (PELs) provisions, include requirements addressing performance criteria for sampling and analytical methods, periodic monitoring, respiratory protection, and recordkeeping. However, no comparable NCELs provisions currently exist in 40 CFR part 721, subpart B for SNURs. Therefore, for these cases, the individual SNURs in subpart E will state that persons subject to the SNUR who wish to pursue NCELs as an alternative to the § 721.63 respirator requirements may request to do so under 40 CFR 721.30. Persons whose § 721.30 requests to use the NCELs approach for SNURs are approved by EPA will receive NCELs provisions comparable to those contained in the corresponding TSCA section 5(e) consent order for the same chemical substance.

This rule also includes SNURs on 52 PMN substances that are not subject to consent orders under TSCA section 5(e). In these cases, EPA did not find that the use scenario described in the PMN triggered the determinations set forth under TSCA section 5(e). EPA, however, does believe that certain changes from the use scenario described in the PMN could result in increased exposures, thereby constituting a “significant new use.” These so-called “Non-5(e) SNURs” are promulgated pursuant to 40 CFR 721.170. EPA has determined that every activity designated as a “significant new use” in all non-5(e) SNURs issued under 40 CFR 721.170 satisfies the two requirements stipulated in § 721.170(c)(2), i.e., these significant new use activities: “(i) are different from those described in the premanufacture notice for the substance, including any amendments, deletions, and additions of activities to the premanufacture notice, and (ii) may be accompanied by changes in exposure or release levels that are significant in relation to the health or environmental concerns identified” for the PMN substance.

Background

The Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended, (“VEVRAA”), 38 U.S.C. 4212(d), requires that Federal contractors report annually to the Secretary of Labor the number of employees and new hires that belong to the categories of veterans protected under the statute. The Veterans' Employment and Training Service (VETS) has promulgated two sets of regulations to implement the reporting requirements under VEVRAA. The regulations in 41 CFR Part 61-250 implement the reporting requirements under VEVRAA prior to the amendments made by the JVA in 2002, and apply to Government contracts of $25,000 or more that were entered into before December 1, 2003. The regulations in part 61-250 require contractors to use the VETS-100 Report form to provide information on the number of covered veterans in their workforces.

The recently published regulations in 41 CFR Part 61-300 implement the JVA amendments to the reporting requirements under VEVRAA (73 FR 28710, May 19, 2008), and apply to contracts entered into or modified on/or after December 1, 2003. The JVA amendments increased from $25,000 to $100,000, the dollar amount of the contract that subjects a Government contractor to the requirement to report the number of employees in their workforces who are covered veterans. In addition, the JVA amendments changed the categories of covered veterans under VEVRAA and thus the categories of veterans that contractors are required to track and report on annually. The regulations in part 61-300 require contractors to use the VETS-100A Report form to provide the required information on their employment of covered veterans.

Today's final rule revises the part 61-250 regulations to incorporate the amendment to VEVRAA that was made by the Veterans' Benefit and Health Care Improvement Act of 2000 (VBHCIA). Prior to amendment by the VBHCIA, VEVRAA required contractors with a contract of $25,000 or more to report at least annually to the Secretary the number of employees, by job category and hiring location, who are “special disabled veterans, veterans of the Vietnam era, and other protected veterans who served on active duty during a war or in a campaign or expedition for which a campaign badge has been authorized.” The VBHCIA extended the protections of VEVRAA to a new category of veterans called “recently separated veterans.” Under the VBHCIA, “recently separated veteran” is defined as “any veteran during the one-year period beginning on the date of such veteran's discharge or release from active duty.” (The JVA amendments expanded coverage of recently separated veterans from one to three years after discharge or release from active duty to three years.) In addition, the final rule clarifies that the regulations in 41 CFR Part 61-250 apply to any contract or subcontract of at least $25,000 entered into before December 1, 2003, and that the regulations in 41 CFR Part 61-300, not the part 61-250 regulations, apply to such a contract if it is modified on or after December 1, 2003 and the contract as modified is for $100,000 or more. This clarification will assist contractors in determining whether the reporting requirements in 41 CFR Part 61-250 and/or the reporting requirements in 41 CFR Part 61-300 apply to their contracts.

The changes made by the final rule are discussed in the Section-by-Section Analysis. The sections of the 41 CFR Part 61-250 regulations that have not been changed are not discussed in the preamble.

This section outlines the purpose and scope of the regulations. The final rule adds the date to the statutory citation in paragraph (a) to indicate that the regulations in 41 CFR Part 61-250 implement the reporting requirements in 38 U.S.C. 4212(d) prior to their amendment in 2002 by the JVA. In addition, the final rule adds language to paragraph (a) to clarify that the reporting requirements in § 61-250.10 apply to any contract of $25,000 or more entered into before December 1, 2003, and that the reporting requirements in § 61-300.10 apply to such a contract if it is modified on or after December 1, 2003, and the contract as modified is for $100,000 or more.

Further, the final rule adds language to paragraphs (b) and (d) stating that the regulations in 41 CFR Part 60-250 administered by the Office of Federal Contract Compliance Programs apply to a contract of at least $25,000 entered into before December 1, 2003 (and not modified as described in paragraph (a) of this section).

The final rule amends § 61.250.2(b) by adding a new paragraph (7) setting forth the definition of “recently separated veteran” specified in the VBHCIA and by renumbering the remaining paragraphs in this section.

The final rule amends § 61-250.10 by adding “recently separated veterans” to the clause heading and to paragraphs (a)(1) and (2) of the clause.

This section states that the data on veterans employment specified in the reporting requirements clause set forth in § 61-250.10 must be reported on the VETS-100 Report.

The final rule replaces “mailed” with “provided” in paragraph (a) to allow VETS the flexibility to distribute the form electronically. This change also would allow VETS to use the same distribution methods under both sets of regulations. In addition, the final rule revises the instructions for preparing the VETS-100 Report set forth in § 61-250.11 to conform to the instructions found on the VETS-100 Report form that is currently approved for use under OMB Control No. 1293-0005.

VETS has determined that this rulemaking need not be published as a proposed rule, as generally required by the Administrative Procedure Act, 5 U.S.C. 553 (“APA”). The final rule amends the regulations in 41 CFR Part 61-250 to include “recently separated veterans” as one of the categories of covered veterans. In this regard, the final rule merely incorporates the VBHCIA changes to the categories of veterans covered under VEVRAA.

In addition, the final rule amends 41 CFR 61-250.1(a) to clarify the scope and applicability of the reporting requirements of the regulations in 41 CFR Part 61-250 and the regulations in 41 CFR Part 61-300. The JVA amendments were made applicable only to Government contracts entered into or modified on or after December 1, 2003. The definitions relevant to contract coverage under 41 CFR Part 61-250 are those contained in 41 CFR 60-250.2. The term “Government contract” is defined in existing 41 CFR 60-250.2(i) as “any agreement or modification thereof between any contracting agency and any person for the purchase, sale or use of personal property or non-personal services (including construction).” Because a contract modification is a “Government contract” the JVA amendments apply to modifications of otherwise covered contracts made on or after December 1, 2003. Consequently, the regulation at 41 CFR 61-250.1(a) provides that the contractor must comply with the reporting requirements in 41 CFR 61-300.10, and not 41 CFR 61-250.10, if its contract of $25,000 or more entered into before December 1, 2003, is modified on or after that date and the contract as modified is for $100,000 or more. In essence, the amendment to 41 CFR 61-250.1(a) incorporates the effective date of the JVA amendments, which was determined by statute.

All the amendments to the regulations in 41 CFR Part 61-250 made by this final rule track statutory amendments. The Department of Labor may not, in response to public comment, change or decline to implement the coverage provisions of the VBHCIA amendment or the effective dates of the JVA amendments. Consequently, there is good cause for finding that applying the notice-and-comment procedure to the amendments to 41 CFR Part 61-250 is unnecessary and contrary to the public interest, pursuant to Section 553(b)(B) of the APA.

This final rule has been drafted and reviewed in accordance with Executive Order 12866, section 1(b), Principles of Regulation. VETS has determined that this rule is not “a significant regulatory action” under Executive Order 12866, section 3(f). Accordingly, it does not require an assessment of potential costs and benefits under section 6(a)(3) of that order.

VETS reviewed the rule in accordance with Executive Order 13132 regarding federalism, and determined that it does not have “federalism implications.” The rule will not “have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

The rule clarifies existing requirements for Federal contractors. In view of this fact and because the rule does not substantively change existing obligations for Federal contractors, we certify that the rule will not have a significant economic impact on a substantial number of small business entities. Therefore, a regulatory flexibility analysis under the Regulatory Flexibility Act is not required.

VETS has concluded that the rule is not a “major” rule under the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq. ). In reaching this conclusion, the OFCCP has determined that the rule will not likely result in (1) an annual effect on the economy of $100 million or more; (2) a major increase in costs or prices for consumers, individual industries, Federal, State or local government agencies, or geographic regions; or (3) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic or export markets.

Executive Order 12875—This rule does not create an unfunded Federal mandate upon any State, local, or tribal government. Unfunded Mandates Reform Act of 1995—This rule does not include any Federal mandate that may result in increased expenditures by State, local, and tribal governments, in the aggregate, of $100 million or more, or increased expenditures by the private sector of $100 million or more.

This regulation is not a major rule for purposes of the Congressional Review Act.

The information collection requirements contained in the existing VEVRAA regulations are currently approved under OMB Control No. 1293-0005. The currently approved VETS-100 Report form reflects the requirements of the VBHCIA amendments, and thus requests information on the number of current employees and new hires that are recently separated veterans. Accordingly, this final rule does not make any changes to the currently approved information collections, and therefore need not be reviewed by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.

The NFIP enables property owners to purchase flood insurance which is generally not otherwise available. In return, communities agree to adopt and administer local floodplain management aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage as authorized under the NFIP, 42 U.S.C. 4001 et seq.; unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. However, some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue their eligibility for the sale of insurance. A notice withdrawing the suspension of the communities will be published in the Federal Register .

Previously, FEMA has identified the Special Flood Hazard Areas (SFHAs) in these communities by publishing a Flood Insurance Rate Map (FIRM). The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may legally be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year, on FEMA's initial flood insurance map of the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment under 5 U.S.C. 553(b) are impracticable and unnecessary because communities listed in this final rule have been adequately notified.

Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Considerations. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Administrator has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the communities unless remedial action takes place.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 13132, Federalism. This rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This rule meets the applicable standards of Executive Order 12988.

Paperwork Reduction Act. This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

The modified BFEs are not listed for each community in this interim rule. However, the address of the Chief Executive Officer of the community where the modified BFE determinations are available for inspection is provided.

Any request for reconsideration must be based on knowledge of changed conditions or new scientific or technical data.

The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq., and with 44 CFR part 65.

For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.

The modified BFEs are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).

These modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by the other Federal, State, or regional entities. The changes BFEs are in accordance with 44 CFR 65.4.

National Environmental Policy Act. This interim rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared.

Regulatory Flexibility Act. As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required.

Regulatory Classification. This interim rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 13132, Federalism. This interim rule involves no policies that have federalism implications under Executive Order 13132, Federalism.

Executive Order 12988, Civil Justice Reform. This interim rule meets the applicable standards of Executive Order 12988.

The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Assistant Administrator of the Mitigation Directorate has resolved any appeals resulting from this notification.

This final rule is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.

Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community. The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.

National Environmental Policy Act. This final rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared.

Regulatory Flexibility Act. As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 13132, Federalism. This final rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This final rule meets the applicable standards of Executive Order 12988.