The REAL ID Act of 2005 (the Act) 1 prohibits Federal agencies, effective May 11, 2008, from accepting a driver's license or personal identification card for any official purpose unless the license or card has been issued by a State that is meeting the requirements set forth in the Act. Section 205(b) of the Act authorizes the Secretary of Homeland Security to grant States extensions of time to meet the requirements of the Act if the State provides adequate justification for noncompliance.

On January 29, 2008, DHS promulgated a final rule implementing the requirements of the Act. See 73 FR 5272; also 6 CFR part 37. The final rule extended the initial compliance date from May 11, 2008 to May 11, 2011. The final rule allowed States to apply for two extensions to meet these requirements—the first extension, given to States in March 2008, is set to expire on December 31, 2009. States may request an extension that would give States until May 11, 2011 to fully comply with the Act and the implementing regulations.

Based on ongoing communications with the States throughout the development of the REAL ID program, a large majority of States and territories—46 of 56—have informed DHS that they will not be able to meet the REAL ID material compliance deadline. To avoid the unnecessary disruption of commercial air travel over the upcoming holiday season that would result if Federal agencies cannot accept State-issued identification cards from travelers beginning January 1, 2010, the Secretary of Homeland Security, under the authority granted to her under section 205(b) of the Act, is staying the material compliance deadline of January 1, 2010, until further notice. Although the material compliance date has been stayed, the full compliance date of May 11, 2011, remains in effect.

This stay is a temporary approach, but is not an acceptable solution over the long-term. DHS continues to urge Congress to enact a permanent legislative solution to fulfill this key 9/11 Commission recommendation. That is why Secretary Napolitano has supported the efforts of Governors and Congress to enact PASS ID, which puts States on the path to implementing national security standards for State identification cards that will enhance security across the country.

The Administrative Procedure Act (APA) provides that an agency may dispense with notice and comment rulemaking procedures when an agency, for “good cause,” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” See 5 U.S.C. 553(b)(B). As noted earlier in this preamble, DHS has communicated extensively with States throughout the development of the REAL ID program. Based on these communications, and the recent submissions from the States, DHS has determined that, although States are making significant enhancements to the security of their driver's licenses and State-issued identification documents, the vast majority of States cannot meet all of the statutorily-mandated requirements under the REAL ID Act by January 1, 2010. In order to minimize impact on the American public as well as to ensure States continue to invest in security enhancements, the January 1, 2010, material compliance deadline is stayed until further notice.

The REAL ID Act prohibits Federal agencies from accepting driver's licenses or personal identification cards for any official purpose unless the issuing State is meeting the requirements set forth in the Act. “Official purpose” is defined in both the Act and in the regulations to include boarding Federally-regulated commercial aircraft. If the vast majority of States are unable to meet the January 1, 2010 material compliance deadline, in the absence of an extension, Federal agencies, including TSA screeners, beginning January 1, 2010, would not be able to accept State-issued driver's licenses or identification cards from residents of these States for official purpose, including for use in boarding commercial aircraft. Travelers would have to use alternative, non-State-issued documents to demonstrate identity, as described in TSA's procedures, to pass through security at airports. All U.S. residents traveling by commercial aircraft would experience very significant travel delays; in fact, commercial aviation would be severely impacted. Such a disruption to air travel is not in the public's best interest in particular during the holiday season. It would also be contrary to the public interest, therefore, to seek public comment prior to extending the compliance date, given that such comments reasonably could not be received and acted upon prior to the date.

Based on the above, DHS finds that pre-promulgation notice and comment for this rule would be impracticable, unnecessary, and contrary to the public interest. For this same reason, good cause exists to make this rule effective immediately upon publication in the Federal Register. See 5 U.S.C. 553(d)(3).

This rule constitutes a “significant regulatory action” under Executive Order 12866, and therefore has been reviewed by the Office of Management and Budget. Under Executive Order 12866, a significant regulatory action is subject to an Office of Management and Budget (OMB) review and to the requirements of the Executive Order. The Executive Order defines “significant regulatory action” as one that is likely to result in a rule that may (1) have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; 3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights or 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. Because this rule eliminates the material compliance date and is part of a previously published rule that received considerable public attention, this rule raises novel policy issues and, thereby, is subject to OMB review.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), requires Federal agencies to consider the potential impact of regulations on small businesses, small governmental jurisdictions, and small organizations during the development of their rules. This final rule, however, makes changes for which notice and comment are not necessary. Accordingly, DHS is not required to prepare a regulatory flexibility analysis. 5 U.S.C. 603, 604.

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

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

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Unfunded Mandates Reform Act addresses actions that may result in the expenditure by a State, local, or Tribal government, in the aggregate, or by the private sector of $100 million (adjusted for inflation) or more in any one year. This final rule will not result in such an expenditure.

This rule does not have Tribal implications under Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments,” because it does not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.

We have analyzed this rule under Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.” We have determined that it is not a “significant energy action” under that Order and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The regulations in 9 CFR part 94 (referred to below as the regulations) govern the importation of certain animals and animal products into the United States in order to prevent the introduction of various communicable diseases, including rinderpest, foot-and-mouth disease (FMD), African swine fever, classical swine fever, and swine vesicular disease. These are dangerous and destructive communicable diseases of ruminants and swine. Section 94.1 of the regulations lists regions of the world that are declared free of rinderpest or free of both rinderpest and FMD. Rinderpest or FMD is considered to exist in all other parts of the world not listed. Section 94.11 of the regulations lists regions of the world that have been determined to be free of rinderpest and FMD, but are subject to certain restrictions because of their proximity to or trading relationships with rinderpest or FMD-affected regions.

On March 30, 2009, we published in the Federal Register a proposal1 (74 FR 14093-14097, Docket No. APHIS-2008-0147) to amend the regulations by adding the Republic of Korea (South Korea) to the list in § 94.1 of regions declared free of FMD and rinderpest. We also proposed to add the Republic of Korea to the list in § 94.11 of regions that are declared to be free of these diseases, but that are subject to certain restrictions because of their proximity to or trading relationships with rinderpest or FMD-affected regions. In addition, we published a notice of availability of an environmental assessment (74 FR 17115) on April 14, 2009 (see footnote 1).

We solicited comments concerning our proposal for 60 days ending May 29, 2009. We did not receive any comments. Therefore, for the reasons given in the proposed rule, we are adopting the proposed rule as a final rule, without change.

This is a substantive rule that relieves restrictions and, pursuant to the provisions of 5 U.S.C. 553, may be made effective less than 30 days after publication in the Federal Register. This rule relieves certain rinderpest and FMD-related restrictions on the importation into the United States of ruminants, or fresh (chilled or frozen) meat or other products of ruminants, from the Republic of Korea. We have determined that approximately 2 weeks are needed to ensure that APHIS and Department of Homeland Security, Bureau of Customs and Border Protection, personnel at ports of entry receive official notice of this change in the regulations. Therefore, the Administrator of the Animal and Plant Health Inspection Service has determined that this rule should be effective 15 days after publication in the Federal Register.

This rule has been reviewed under Executive Order 12866. For this action, the Office of Management and Budget has waived its review under Executive Order 12866.

This rule amends the regulations by adding the Republic of Korea to the list of regions considered to be free of rinderpest and FMD. This action, which was requested by the Republic of Korea, follows a risk assessment conducted by APHIS concluding that the Republic of Korea is free of both diseases and has the veterinary infrastructure in place to detect and effectively eradicate the diseases if necessary. The effect of the rule will be to remove certain rinderpest and FMD-related prohibitions and restrictions on the importation into the United States of ruminants, or fresh (chilled or frozen) meat or other products of ruminants, from the Republic of Korea. APHIS imposes such restrictions because an FMD or rinderpest outbreak in the United States has the potential for severe economic consequences. Although imports of swine and swine products typically would be allowed under APHIS’ FMD and rinderpest regulations, those commodities are not eligible for importation from the Republic of Korea due to USDA regulations designed to prevent the introduction of diseases other than FMD and rinderpest.2

We do not anticipate that changing the FMD and rinderpest status of the Republic of Korea will have a significant economic impact on a substantial number of U.S. entities, large or small, because the volume of currently prohibited/restricted animals and animal products imported into the United States from the Republic of Korea is likely to be very small relative to overall U.S. supply of those commodities (production and net imports from all foreign sources). There are several reasons for this. First, the volume of U.S. imports from the Republic of Korea prior to March 20, 2000 (the date the Republic of Korea was removed from the list of regions considered to be free of FMD and rinderpest) was negligible. During the 3-year period from 1997 to 1999, the United States did not import any reportable amounts of ruminants or fresh (chilled or frozen) meat or other products of ruminants from the Republic of Korea, other than 1.3 metric tons of dairy products in 1998.

Second, the Republic of Korea produces less beef, milk, and pork than it consumes, and is therefore a net importer of these commodities. Given this fact, there will likely not be a significant volume of exports of those commodities to the United States.

Finally, APHIS’ staff expects that Hanwoo beef, a premium-priced specialty meat produced from Korean native cattle, is likely to be the Republic of Korea’s primary export to the United States. Because of its premium price, the market for Hanwoo beef is limited; it is likely to be sold to a niche market, such as Korean restaurants in the United States.

Importers, brokers, and others interested in importing Hanwoo beef, as well as restaurants intending to serve that product, are the U.S. entities most likely to be affected by the rule. They stand to benefit from the increased business activity. The number of these entities is unknown but it is likely to be very small, given the expected limited market for Hanwoo beef in the United States. The size of these entities is also unknown, although it is reasonable to assume that, as with U.S. businesses in general, most are small under the standards of the U.S. Small Business Administration. Therefore, this action should have no noticeable effect on U.S. beef producers, given the expected limited demand for Hanwoo beef.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Has no retroactive effect and (2) does not require administrative proceedings before parties may file suit in court challenging this rule.

An environmental assessment and finding of no significant impact have been prepared for this final rule. The environmental assessment provides a basis for the conclusion that the removal of certain rinderpest and FMD-related prohibitions and restrictions on the importation into the United States of ruminants, or fresh (chilled or frozen) meat or other products of ruminants, from the Republic of Korea will not have a significant impact on the quality of the human environment. Based on the finding of no significant impact, the Administrator of the Animal and Plant Health Inspection Service has determined that an environmental impact statement need not be prepared.

The environmental assessment and finding of no significant impact were prepared in accordance with: (1) The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et seq.), (2) regulations of the Council on Environmental Quality for implementing the procedural provisions of NEPA (40 CFR parts 1500-1508), (3) USDA regulations implementing NEPA (7 CFR part 1b), and (4) APHIS’ NEPA Implementing Procedures (7 CFR part 372).

The environmental assessment and finding of no significant impact may be viewed on the Regulations.gov Web site.3 Copies of the environmental assessment and finding of no significant impact are also available for public inspection at USDA, room 1141, South Building, 14th Street and Independence Avenue SW., Washington, DC, between 8 a.m. and 4:30 p.m., Monday through Friday, except holidays. Persons wishing to inspect copies are requested to call ahead on (202) 690-2817 to facilitate entry into the reading room. In addition, copies may be obtained by writing to the individual listed under FOR FURTHER INFORMATION CONTACT.

This final rule contains no information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

Done in Washington, DC, this 16th day of December 2009.

This rule implements specific requirements for the SURE program authorized by the 2008 Farm Bill (Pub. L. 110-246) and amendments to the 2008 Farm Bill contained in the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009 (Pub. L. 110-329), an Act to Amend the Commodity Provisions of the Food, Conservation, and Energy Act of 2008 and for other purposes (Pub. L. 110-398), and the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-005, the Recovery Act). The basic core of the SURE program is specified in the 2008 Farm Bill. With the exception of the Recovery Act, the subsequent amendments were technical in nature; the amendments are discussed below.

Sections 12033 and 15101 of the 2008 Farm Bill authorize the Secretary of Agriculture (Secretary) to provide assistance to eligible participants with certain crop losses. Under this authority, FSA is establishing SURE, a new permanent disaster assistance program, providing payments to eligible participants who suffered a qualifying loss and who met the risk management purchase requirement.

FSA will administer SURE using funds from the Agricultural Disaster Relief Trust Fund established under section 902 of the Trade Act of 1974 (19 U.S.C. 2497a), as specified in the 2008 Farm Bill. The disaster assistance programs authorized by the 2008 Farm Bill are permanent or “standing” disaster assistance programs, some of which have similar scope to previous ad hoc programs. The programs are provided for in two separate places in the 2008 Farm Bill. First, section 12033 adds a new section 531 to the Federal Crop Insurance Act (7 U.S.C. 1501-1524). Second, section 15101 adds sections 901, 902, and 903 to the Trade Act of 1974. The provisions of the two sections as enacted are identical except that the Trade Act of 1974 provisions contain the Trust Fund provisions. The two sections of the 2008 Farm Bill are considered to be interchangeable for the purposes of this rule.

SURE is one of five new standing disaster programs authorized by the 2008 Farm Bill. The five new programs are:

• Livestock Indemnity Program (LIP);

• Livestock Forage Disaster Program (LFP);

• Emergency Assistance for Livestock, Honey Bees, and Farm-Raised Fish (ELAP);

• Supplemental Revenue Assistance Payments Program (SURE); and

• Tree Assistance Program (TAP).

The programs are being implemented through separate rulemakings; regulations for each of the programs will be implemented in separate subparts of 7 CFR part 760. This rule implements SURE in 7 CFR part 760, subpart G. The LIP final rule, which was published in the Federal Register on July 2, 2009 (74 FR 31567-31578) implemented LIP in 7 CFR part 760, subpart E, and implemented general provisions applicable to more than one program in 7 CFR part 760, subpart B. The ELAP and LFP final rule, which was published in the Federal Register on September 11, 2009 (74 FR 46665-46683) implemented ELAP in 7 CFR part 760, subpart C, and implemented LFP in 7 CFR part 760, subpart D.

SURE covers some expected revenue or production losses not covered under other Supplemental Agricultural Disaster Assistance programs established by the 2008 Farm Bill. For example, losses to catfish, crawfish, and other aquaculture species are not covered by LIP, but are covered under SURE because they are eligible for NAP coverage. In other cases, losses are covered by the other programs but not by SURE. For example, losses to honey bees due to colony collapse disorder are covered by ELAP but not by SURE. Livestock, feed emergency, and grazing losses are not covered by SURE but are covered by LIP, ELAP, and LFP. Losses to tree crops (apples, citrus) are covered by SURE, while losses to trees that produce crops are covered by TAP.

Technical amendments made by legislation enacted after the 2008 Farm Bill included a clarification of terms and some newly defined terms, added the 10 percent actual production loss minimum of an economically significant crop to be a qualifying loss, excluded subsequently planted crops in most cases, specified that regional variations should be considered consistent with crop insurance and NAP in establishing average market prices, and allowed additional waivers or exceptions to the risk management purchase requirement for certain years.

The Recovery Act amendments allowed an additional waiver for the 2008 crop year only under certain situations and increased the amount of assistance for 2008 qualifying losses. It also authorized the Secretary discretion to provide equitable treatment for participants suffering multi-year losses and for participants who lacked access to insurance or NAP.

This final rule uses the words “producers” and “participants.” Producers may apply for SURE. Participants are those producers that meet the requirements to be eligible producers to receive SURE payments.

Sections 12033 and 15101 of the 2008 Farm Bill include the words assistance, benefits, compensation, relief, and payments. The form of SURE assistance, benefit, relief, or compensation for eligible participants is a payment calculated as specified in this rule. Therefore, this rule uses the word payment to represent the assistance, benefit, relief, and compensation that participants will receive.

One part of the payment calculation is the guarantee or “SURE guarantee”, which is a “guaranteed” level of revenue for the farm based on the planted or prevented planted acres, the yield, past production history, and the level of crop insurance selected, among other things. The SURE payment is based on 60 percent of the difference between this guarantee and the total revenue on the farm as calculated in accordance with the 2008 Farm Bill.

In general, the word “production” represents the quantity or amount of a crop produced (or harvested). In some terms that include the word “production” it represents the dollar value or the price of the crop, such as “normal production on the farm” which is defined in this rule. Because the production for the farm is the total of all the crops produced on the farm, which may be measured in different physical units, the total production of multiple crops on a farm is most sensibly represented in terms of dollar value rather than (for example) using bushels as the unit of measure for production on a farm that produces corn, hay, and catfish.

This rule defines “salvage value” as the dollar amount or equivalent value when the commodity cannot be sold in any recognized market for that crop. For example, popcorn that does not meet the standards for popcorn would have “salvage value” as livestock feed.

The word “crop” and “commodity” were used in the 2008 Farm Bill. This rule generally uses “crop,” except in cases where “commodity” must be used to be consistent with other regulations and programs.

This rule includes terms defined or otherwise used in the 2008 Farm Bill as required to implement the SURE program. In some instances, terms defined in the 2008 Farm Bill have been modified based on agency interpretation and to add further clarity. For example, the term “disaster county” appears in the 2008 Farm Bill and specifies that a disaster county, in addition to meaning a county included in a Secretarial natural disaster declaration, or a county contiguous to such county, is any farm having actual production less than 50 percent of normal during a crop year. These regulations make clear that one farm having a loss of 50 percent or more does not make the farm or the county or counties in which the farm is or are located an actual disaster county. Rather, the disaster county term is defined to only include those counties that have a Secretarial natural disaster declaration or a county contiguous to such county (without regard to participant or farm losses).

Other clarifications to definitions in the 2008 Farm Bill include using consistent words and terms as specified in this rule, adding information such as citations, or otherwise clarifying the definition. For example, this involves using the word “crop” instead of the word “commodity” where appropriate, consistent references to “crop insurance” and “crop insurance indemnity,” and “participant” instead of “producer.”

The definition of the term “actual production history yield” in the 2008 Farm Bill uses the term “weighted.” The definition in this rule refers to an average instead of a weighted average. We did this to clarify that the weighting is done as part of the calculation of the SURE yield; the actual production history yield data from the NAP or RMA program is actual yield data, not weighted.

The definition of “actual production on the farm” was expanded to specifically include the calculation information, which was referred to in the definition in the 2008 Farm Bill. The definition deleted the term “value of all crops produced on the farm” as it would have been redundant because the calculations specify a component is the price of the crop or the value of inventory. The definition was also expanded to specify how value loss crops would be included in the calculation.

The definition of “adjusted actual production history yield” was expanded to specify the minimum amount, and specify that it is the “average of the production history” instead of the “actual production history,” to clarify that since the Farm Bill also specified that 4 years of production history are taken into account, that clearly should be an average rather than a sum.

The definition of “adjusted NAP yield” was expanded to specify the minimum amount, and specifying that it is the “average of the production history”, rather than the NAP yield, to be consistent with the ways “yield” and “production history” are used in other terms in this rule.

The definition of “counter-cyclical program payment yield” was clarified to cite FSA implementing regulations instead of citing various sections of legislation.

“Crop of economic significance” is defined in the 2008 Farm Bill as having a uniform meaning given it by the Secretary for certain purposes as specifically required by the 2008 Farm Bill. In this rule, a crop of economic significance means one that has contributed at least 5 percent of the total expected revenue of all of the participant's crops on the farm. That would appear to be a fair level at which a farmer might forego risk management measures because of the relative size of the crop. At this time, however, no dollar expectation has been set so as to require that the farm have expected marketings of a certain level to qualify a crop for SURE. However, the crop must be one which is the subject of normal marketings.

The definition of “farm” was clarified such that “for sale” means “for normal commercial sale” and was revised for aquaculture based on the requirements for the Aquaculture Grant Program, as specified in the Recovery Act. “Normal” commercial sale in this regard would mean sales in the normal channels of commerce and would not include, for example, “sales” to family members or sales from hobby farms.

The definition of “noninsurable crop” specifies that the crop is a “commercially produced crop” because NAP covered crops are commercially produced crops for which crop insurance is not available.

Some terms defined in this rule are terms used in the 2008 Farm Bill, but are not defined in the 2008 Farm Bill. For example, the term “actual crop acreage” is not defined in the 2008 Farm Bill; however, for the purpose of SURE, the term “actual crop acreage” is defined to mean that it includes all acreage of each crop planted or intended to be planted on a farm. As is explained below, the term “farm” is generally defined expansively in SURE to include all farming interests in which a producer has an interest, no matter where located. Another example is “appraised production,” which, when applicable, will be used in determining a farm's production or revenue. The term is defined in this rule as production determined by FSA, or an insurance provider approved by FCIC, that was unharvested, but which was determined to reflect the crop's yield potential at the time of appraisal. “Aquaculture” is defined to mean the reproduction and rearing of aquatic species in controlled or selected environments as specified in part 1437 of this title.

Some important differences between SURE and previous programs are that SURE payments are based on multi-crop farm revenue, rather than losses to a single crop, and that SURE is a “permanent” or “standing” program, for losses in the time period covered in the 2008 Farm Bill (coverage begins with the 2008 crop, and losses after September 30, 2011 are not covered). Previous ad hoc crop disaster programs were typically limited to specific crops damaged or destroyed during a specific period of time in specific locations. In contrast to previous programs that addressed losses to particular crops, SURE is an umbrella type of farm revenue program that compliments and augments protections that participants have from various risk management purchases. Under previous crop disaster programs, producers typically requested assistance for particular farm numbers, or units. Under SURE, a participant's assistance will be based on a “whole farm,” which means the aggregation of all crops in all counties in which the participant has an interest that were planted or intended to be planted for harvest. Participants must have been entitled to an ownership share of the crop; contract growers are not eligible participants for SURE unless they had an ownership share and meet all other eligibility criteria.

Payments will not be based on losses to individual crops, although a loss of a crop of economic significance is an eligibility requirement.

Funding for the previous ad hoc crop disaster programs was limited and subject to a specific appropriation. Funding for SURE is provided through the Agricultural Disaster Relief Trust Fund and payments will be distributed to eligible participants as they qualify for assistance.

Unlike some FSA and Commodity Credit Corporation (CCC) programs, participants do not need to pre-enroll or sign up in advance (prior to the loss) for SURE coverage in order to be eligible. Participants who believe they may be eligible for a SURE payment who satisfy all eligibility criteria can submit an application for payment. Such application will be reviewed to determine if the participant meets such eligibility criteria.

To receive SURE payments, participants must have had a qualifying loss. That means eligible participants must have at least a 10 percent loss of one crop of economic significance due to disaster on either:

(1) A farm in a disaster county (a county for which a Secretarial disaster designation has been issued or in a county contiguous to a county with a Secretarial disaster designation), or

(2) A farm not located in a disaster county or a county contiguous to such a designated disaster county, that has an overall production loss greater than or equal to 50 percent of the normal production on the farm (expected revenue for all crops on the farm) due to disaster.

A “crop of economic significance” is one that generates or was expected to generate at least 5 percent of the total expected revenue of all of the crops on the participant's farm for the current year. While other FSA programs may use a higher percentage threshold in order to determine whether a crop is economically significant, SURE defines crop of economic significance as having at least 5 percent or more of the total expected revenue from all of the participant's crops on the farm and thereby increases the likelihood that participants will have economically significant crops and be eligible for SURE.

A “disaster county” is one where there has been a Secretarial disaster declaration; it includes counties contiguous to such counties declared a disaster. Other kinds of disaster declarations or designations, such as a Presidential disaster declaration, are not relevant to SURE, according to the terms of the 2008 Farm Bill.

A farm includes all the crop acreage in all the counties where a participant has planted crops or intended to plant crops for harvest for commercial sale or on-farm livestock feeding. For aquaculture and honey, a farm includes all the acreage used for all aquaculture species, bees, and beehives intended to be harvested for sale by the eligible participant in all counties.

A farm not located in a “disaster county” may still be eligible for SURE if it incurs, during a crop year, a qualifying loss of production in which the actual production on the farm is less than 50 percent of the normal production of the farm. Such loss threshold is per farm, not per crop on a farm. The actual total production for the participant's farm, as measured by revenue from all crops and locations, must be less than 50 percent of the normal expected production to be a qualifying loss. A loss of 50 percent of one crop, or losses on one part of a farm where the farm has crops in several locations, will not necessarily be a qualifying loss if the other crops or locations or both had a less severe loss. For this category of qualifying loss, there is no requirement for a disaster declaration.

To be eligible for SURE payments, producers must meet certain risk management purchase requirements, with some exceptions. Those requirements are specified in 7 CFR part 760 subpart B, and apply to SURE.

The risk management purchase requirements specify that eligible participants must have purchased insurance for each insurable crop; a few exceptions allowed by the 2008 Farm Bill are discussed later in this section. An “insurable commodity” means an agricultural commodity for which the producer on the farm is eligible to obtain a policy or plan of insurance under the Federal Crop Insurance Act (FCIA) from the USDA's Risk Management Agency (RMA). A “noninsurable commodity” means a crop for which the eligible producers on a farm are eligible to obtain assistance through FSA's noninsured crop disaster assistance program (NAP). In general, to be eligible for SURE payments, participants must have obtained crop insurance or NAP coverage, as may be applicable, for all of their crops.

Producers who did not purchase required coverage are not eligible for benefits unless an exception applies. Certain waivers for “socially disadvantaged farmers and ranchers,” as well as “limited resource farmers and ranchers,” and “beginning farmers or ranchers” are provided by the 2008 Farm Bill.

For the 2008 crop year, otherwise eligible producers who paid a certain buy-in fee were provided an exemption from the risk management purchase requirement that would otherwise apply if the buy-in fee was paid by September 16, 2008. By an amendment to the 2008 Farm Bill, a second buy-in permitted participants to buy in for the 2008 crop year from February 17, 2009, up to May 18, 2009 to meet the risk management purchase requirement; however, the participant had to agree to buy crop insurance or NAP for the next crop year for the crops to which the buy-in applied. The buy-in fee was equal to the cost of the minimal catastrophic insurance coverage or NAP coverage, but did not, as with other buy-in exemptions in SURE, entitle the participant to such insurance or NAP coverage. Also, an amendment to the 2008 Farm Bill allows a 2009 crop buy-in if the 2009 Federal Crop Insurance Corporation (FCIC) sales closing date for a crop was prior to August 14, 2008. The deadline for the 2009 crop buy-in was January 12, 2009. In addition to these provisions, section 531(g)(5) of the FCIA (and the corresponding provisions of the Trade Act of 1974; 7 U.S.C. 1531(g) and 19 U.S.C. 2497(g), respectively) have some more general provisions allowing the Secretary discretion to grant equitable relief to certain persons who lack coverage. The buy-in fees were different for 2008 and 2009.

Specifically for SURE, and not for the other disaster programs, there are also the following “de minimis” exceptions to the risk management purchase requirement:

(1) Where a portion of the total acreage of a farm of the eligible producer is used to produce a crop that is not of economic significance on the farm, and

(2) Crops for which the required administrative fee to purchase NAP coverage for that crop on a particular farm exceeds 10 percent of the value of that coverage.

If a participant elects not to purchase risk management coverage for the crop because of one of the de minimis exceptions, such crop will not be included in the SURE guarantee and revenue calculations. The participant must elect the de minimis exception as part of the application for SURE payment.

If a producer is ineligible or otherwise barred from the risk management insurance program or NAP because of past violations and those insurance programs would otherwise be available to that producer absent such violations, that producer will also be ineligible for SURE.

Other circumstances preventing a producer from obtaining risk management coverage may be addressed on a case-by-case basis, and the Secretary or designee may determine a participant eligible for SURE even if FCIA or NAP coverage was not timely obtained. Section 760.106 “Equitable Relief” provides for such relief. For example, equitable relief may, at FSA's discretion, be considered for participants who failed to meet the requirements of this rule because the 2008 Farm Bill was enacted after the closing date for purchasing the applicable insurance. Another example may be relief for a participant who made a late planting decision due to weather-related causes. Relief will not be considered or granted for producers who are in the RMA ineligibility tracking system. In connection with equitable relief, however, producers have no entitlement to relief that is discretionary in nature and FSA's refusal to consider such relief or to grant a particular form of relief that is not particularly mandated by the 2008 Farm Bill or the program regulations will not be construed to be an adverse decision under either part 11 or 780 of this title.

If an RMA pilot or Adjusted Gross Revenue insurance program was the only insurance available in that area for that crop, buying that insurance program for that crop will “count” as meeting the risk management purchase requirement for that crop. However, producers are not required to purchase pilot or AGR insurance program coverage in order to meet the risk management purchase requirement. Rather, producers can elect not to obtain pilot or AGR insurance program coverage and meet the risk management purchase requirement by obtaining either NAP coverage or by paying the buy-in fee, as may be applicable.

Eligible crops include FCIC insured commodities and crops covered by NAP, excluding acreage intended for grazing. (Grazing losses are covered by LFP, in regulations codified in 7 CFR part 760 subpart D.) SURE does not cover crops covered under LFP or ELAP. NAP is available for crops that are commercially produced for which the catastrophic level of crop insurance coverage is not available. Crops that are not grown commercially are not eligible for either crop insurance or NAP and therefore are not eligible for SURE. All crops for which a policy or plan of crop insurance or NAP coverage is available are eligible for production losses. Most crops are also eligible for quality losses except for value loss crops 1 and some specialty crops 2 because of the way normal losses are measured for those crops.

Producers who did not obtain risk management coverage for all eligible crops on a farm are ineligible for payment under SURE even if some crops had risk management coverage, unless an exception or waiver applies. For example, if a producer's farm produces insured corn and insured soybeans, and also hay, to be eligible for SURE payment, it is necessary for the producer to either buy insurance or NAP coverage on the hay or have made a “buy-in,” when such option was available as specified in subpart B of part 760. Producers who meet all the statutory conditions of eligibility, including risk management coverage, will qualify for payment. A producer who does not meet the risk management purchase requirement will not be eligible. A lack of eligibility is not a compliance issue; rather, such producer has merely failed to satisfy a statutory condition of eligibility.

In the case of a participant who met the risk management purchase requirement by purchasing crop insurance or NAP, the calculation of the SURE farm revenue and guarantee is based on the insured or NAP crops. For participants who are eligible through waivers and buy-ins, the calculation will explicitly exclude crops that would not be eligible for insurance or NAP. Therefore, there are provisions in this rule that exclude, for example, volunteer crops from the revenue or guarantee calculation. For participants who purchased crop insurance or NAP, those crops would clearly not be included because they were not insured (and cannot be insured). However, these provisions are in the rule to address the situation of calculating the farm revenue or guarantee of a participant who is eligible through a waiver or buy-in. Similarly, this rule excludes from the SURE guarantee and revenue calculation crops grown on land that is not eligible for crop insurance or NAP. For a participant who purchased crop insurance or NAP, those crops would clearly not be included because they were not insured (and cannot be insured). However, these provisions are in the rule to address the situation of calculating the farm revenue or guarantee of a participant who is eligible through a waiver or buy-in.

Independent of risk management purchase requirements and de minimis exceptions, certain items or losses are not covered for any participant and will not be included in payment calculation. These include home gardens, losses to crops that were not intended to be harvested in the applicable crop year, and losses to biomass byproducts of the crop such as corn stover or wheat straw.

All counties, owners, contract growers, lessees, crops, and losses must meet the eligibility criteria provided in this rule. False certifications will result in a denial of program eligibility and payments. General eligibility requirements, as specified in §§ 760.101 through 760.117, including recordkeeping requirements and required compliance with Highly Erodible Land Conservation and Wetland Conservation provisions, are similar to those for the previous ad hoc crop disaster programs and are applicable to SURE.

The 2008 Farm Bill limits how much a participant may receive from FSA disaster assistance programs.

• In applying payment limitations for 2008, no person, as defined and determined by the regulations in 7 CFR part 1400 in effect for 2008, may receive more than $100,000 total per crop year under ELAP, LFP, LIP and SURE combined.

• For 2009 through 2011, no person or legal entity (excluding a joint venture or general partnership), as defined and determined by the regulations in 7 CFR part 1400 may receive, directly or indirectly, more than $100,000 total per crop year under ELAP, LFP, LIP and SURE combined.

For the payment limits, both indirect and direct benefits are counted by attribution such that the total amount of payments is attributed to a person by taking into account the direct and indirect ownership interests of the person in a legal entity that is eligible to receive payments. In the case of a legal entity, the same payment is attributed to the direct payee in the full amount and those that have an indirect interest to the amount of that indirect interest. For example, under the attribution rules that apply to these programs, assume:

• Corporation A is in line to receive a $100,000 SURE payment,

• Corporation A is owned 50 percent by Individual A and 50 percent by Corporation B, and

• Corporation B is owned by Individual B with a 30 percent interest and by Individual C with a 70 percent interest.

If so, Corporation A, for payment limitation purposes would be considered to have received $100,000 and Individual C (who owns 70 percent of Corporation B, which owns 50 percent of Corporation A) would be considered to have indirectly benefitted by the amount of $35,000 (50 percent times 70 percent of the $100,000). Even though no part of the $100,000 was actually paid to Individual C, the $35,000 would count against Individual C's overall payment limitation from all sources and farms. Assume now that Individual C was already at the maximum payment limit. If so, Individual C would not have been eligible to receive $35,000; as a result, the payment to Corporation A would be reduced by $35,000.

The amount of any payment for which a participant may be eligible from the SURE program will be commensurately reduced by any amount received by the participant for the same or any similar loss from any Federal disaster assistance program. Such disaster programs include USDA conservation programs that pay for replanting or replacing plants damaged by disaster. Aquaculture producers who received assistance under the Aquaculture Grant Program 3 will not be eligible for SURE assistance on those species of aquaculture for which a grant payment was received. Indemnities or NAP payments issued for losses of the species will, however, count on the revenue side of the SURE payment calculation. Participants cannot receive SURE assistance for the same loss under ELAP, LIP, LFP or TAP.

Provisions for both pay limits and for limits related to an individual's or entity's adjusted gross income were contained in the administrative subparts of part 760 (discussed above, previously issued to implement other Farm Bill disaster assistance programs) and generally the administration of those limitations will follow general regulations in 7 CFR part 1400. In applying the limitation on average adjusted gross income (AGI) for 2008, an individual or entity is ineligible for SURE payment if the individual's or entity's average annual AGI for 2005, 2006, and 2007 exceeded $2.5 million, under the provisions in 7 CFR part 1400 in effect for 2008. For 2009 through 2011, the average AGI limitation provisions in 7 CFR part 1400 applicable to CCC commodity programs also apply to SURE. As specified in the 2008 Farm Bill, for 2009 through 2011, a person or legal entity with an average adjusted gross nonfarm income, as defined in 7 CFR 1400.3, that exceeds $500,000 for the relevant period, which is the 3 taxable years preceding the most immediately preceding complete taxable year, as determined by CCC, will not be eligible to receive payments under these programs. Likewise, if a person with an indirect interest in a legal entity has an average nonfarm AGI over $500,000, then the payment to the legal entity will be commensurately reduced as calculated based on the percent of interest in the legal entity receiving the payment. For example, continuing with the assumptions in the example above, if Individual B had an average AGI that was over the limit, then the payment to Corporation A will be reduced by 15 percent (Individual B's 30 percent interest in Corporation B times Corporation B's 50 percent interest in Corporation A).

Payment and average AGI limits will be determined under regulations specified in 7 CFR part 1400 for CCC commodity programs. The SURE program is not a CCC program, but the CCC regulations in 7 CFR part 1400 are adopted for this program.

The relevant AGI period for SURE and the other disaster assistance programs for 2008 is the 3 calendar years that precede the program year involved which are 2005, 2006 and 2007. However, beginning with 2009, the AGI period is the 3 taxable years preceding the most immediately preceding complete taxable year, as determined by CCC. For SURE, the program year is the year that corresponds to the relevant crop year. This program will be administered by crop year and most times the crop year for all crops is easily indentified because both the year of the planting and the year of the harvesting are the same or at least the calendar year of the harvesting is the same nationwide. The Deputy Administrator will be the ultimate arbiter of which production fits in which “crop year” for purposes of SURE calculations. The crop year concept in some limited cases can involve a loss that occurs in a different calendar year than the calendar year whose number corresponds to the crop year. For example, wheat for the 2009 crop year can be planted in the fall of 2008 and be damaged or lost during 2008. SURE payments related to such a loss would be made for the 2009 crop year wheat, because the intent was to harvest this wheat in 2009.

Production losses are, in general, determined by calendar year of harvest, but the payment limitation is for a crop year. Also, the national average market price (NAMP) for a marketing year may not be available until the fall of the following crop year, so the SURE payment may often be calculated and paid in a different (later) calendar year than the actual year of loss or losses.

The regulations in 7 CFR 1400.105 specify how payments will be attributed and how far the attribution will go. Attribution will be tracked through four levels of ownership in legal entities. The 2008 Farm Bill removed the previous “3 entity rule,” so a person can now receive benefits attributed through an unlimited number of entities, subject to the payment limits and the rules of attribution described in this final rule and in 7 CFR part 1400.

In addition, the 2008 Farm Bill imposes limitations of payments to foreign persons. Those limits are specified in the regulations in § 760.103.

The SURE guarantee cannot exceed 90 percent of the total expected revenue for the crops on the farm. Depending on the level of insurance coverage the participant elects, the SURE guarantee for a specific participant may be less than 90 percent of the expected revenue. In general, the higher the level of insurance coverage purchased, the higher the SURE guarantee. A participant who purchases the minimum insurance required by this part and meets all other eligibility requirements will be eligible for SURE, but the SURE guarantee will reflect that minimal level of coverage.

The following is an example of how a SURE payment is calculated for a participant with two crops; corn insured with FCIC crop insurance and alfalfa with NAP coverage. After the example, the general SURE payment calculation formula is discussed.

The SURE program guarantee calculation for insured corn in this example is as follows: Assume 100 payment acres times an assumed 100 bushels per acre (SURE yield) times $4.00 per bushel (price election) times 70 percent (coverage level) times 115 percent (SURE multiplier) equals $32,200.

The program guarantee calculation for alfalfa with NAP coverage in this example is as follows: assume 100 payment acres times an assumed 4.0 tons per acre (SURE yield) times an assumed $70 per ton (NAP established price) times 50 percent times 120 percent (SURE multiplier) equals $16,800.

The SURE guarantee is: $32,200 (corn) plus $16,800 (alfalfa) equals $49,000.

The SURE guarantee is limited to 90 percent of the sum of the expected revenue for each crop on the farm. Expected revenue for corn is: 100 payment acres times 100 bushels per acre (SURE yield) times $4.00 (price) equals $40,000. For alfalfa: 100 payment acres times 4.0 tons per acre (SURE yield) times $70 (NAP established price) equals $28,000.

The expected revenue is: $40,000 (corn) plus $28,000 (alfalfa) equals $68,000.

Total expected revenue $68,000 times 90 percent equals $61,200 (SURE guarantee cap).

Revenue for the insured corn in this example is based on a 60 percent loss in production that the participant experienced for this crop, which in the example resulted in a 40 bushel yield. For the purpose of the example, NAMP for insured corn in the State is $4.00 per bushel. Assume, too, a freeze also affected this corn, which resulted in a quality adjustment of 90 percent to account for extra moisture, which is applied to the price. Therefore, the estimated actual value for this crop is $4.00 (NAMP) times 90 percent (quality adjustment) equals $3.60 times 4,000 bushels (actual production of the payment acres) equals $14,400.

Revenue for the alfalfa in this example is based on a 25 percent loss in production that the participant experienced for this crop, which resulted in a 3 ton yield. For the purpose of the example, NAMP for alfalfa in the State is $70. There is no quality adjustment for the alfalfa crop. Therefore, estimated actual value for the alfalfa crop is $70 (NAMP capped at 100 percent of the NAP established price) × 300 tons (actual production of the payment acres) equals $21,000.

Total farm revenue for this participant is $14,400 (corn) + $21,000 (alfalfa) equals $35,400.

The SURE payment for this participant would be: $49,000 (SURE guarantee) − $35,400 (total farm revenue) = $13,600 times 60 percent equals $8,160.

The SURE payment will be calculated based on the difference between a program guarantee and farm revenue as determined for a participant's farm. The SURE program guarantee for a specific participant is based on the participant's risk management purchases. The SURE calculation of revenue is based on an applicant's actual production and NAMP for the commodities produced, as well as a number of other revenue sources such as farm program or NAP payments and insurance indemnities. In general, because SURE is intended to enhance or augment risk management purchases, participants who elect higher amounts of coverage will see greater SURE benefits, compared to those who elect lesser amounts of coverage. Under SURE, the crop insurance indemnity that is counted in the SURE revenue calculation is after subtracting producer-paid premiums for crop insurance in an amount not to exceed the crop insurance indemnity paymenton a per unit basis.

The SURE payment is 60 percent of the difference between the SURE guarantee and the total farm revenue. If total farm revenue is below the SURE guarantee, the participant will be eligible for a payment based on the amount of the shortfall. In general, except for additional 2008 assistance made available by the Recovery Act, the SURE guarantee for insurable crops is determined by multiplying:

• The number of planted and prevented planted acres, times

• The higher of either the adjusted actual production history yield or counter-cyclical yield, times

• The coverage level, times

• The price determined by the percentage of the crop insurance price elected by the participant, times

• 115 percent (1.15).

In general, except for additional 2008 assistance made available by the Recovery Act, the SURE guarantee for noninsurable crops is determined by multiplying:

• The number of planted and prevented planted acres, times

• the higher of either the actual production history yield or the counter-cyclical yield, times

• 50 percent (yield coverage under NAP), times

• the NAP price, times

• 120 percent (1.20).

This rule specifies how the basic formula will be adjusted to address a number of specific situations. Those situations include, but are not limited to, adjustments for situations such as:

• If a participant was exempt from the risk management purchase requirement, the participant's SURE yield will be determined by the FSA county committee using 65 percent of the higher of the counter-cyclical program yield or the FCIC or county expected yield for the crop as established by the Deputy Administrator.

• If a participant's policy or plan of insurance provides for an adjustment in the liability, such as in the case of prevented or late planting, that adjustment will be used in calculating the SURE guarantee.

• If a participant's NAP coverage provides for an adjustment in the level of assistance, such as for unharvested crops or prevented or late planting, that adjustment will be used in calculating the SURE guarantee.

• If the farm is in an approved multiple cropping or double-cropping area and both crops suffer losses, both crops may be eligible for the calculation of disaster assistance if appropriate documentation is provided. In most cases, only the first or initial crop is eligible and will be used in calculating the SURE guarantee and revenue.

• For 2008 only, and only under certain situations where the producer met certain requirements, the Recovery Act provides for changes to the percentages used to calculate the guarantee, such that the multiplier is changed from 115 percent to 120 percent and from 120 percent to 125 percent, respectively. These percentages are used in the comparison calculation to determine the amount of the SURE payment; the Recovery Act specifies the two calculations for the comparison and requires that the greater amount be used. Using the NAP calculation with the 125 percent will never result in being the greater amount; therefore, the calculation in the regulation uses the other calculation in the comparison, which uses 120 percent.

Socially disadvantaged producers, limited resource producers, and beginning farmers and ranchers who did not purchase risk management coverage will be eligible for the same level of assistance as participants who satisfied the purchase requirement by obtaining the minimum level of coverage available, which is generally catastrophic or “CAT” coverage for insured crops or the standard NAP level of coverage for noninsured crops. Equitable consideration will be provided for instances involving non-yield based crop insurance policies. For RMA “pilot” insured crops, having either pilot or NAP coverage on applicable crops would meet the risk management purchase requirement. The payment formulas in this rule are intended to treat similarly situated participants consistently and equitably. However, participants having similar losses on the same or similar crops may not necessarily receive the same payment.

The Deputy Administrator will determine NAMP for each crop in a marketing year, taking into account the best information available that the Deputy Administrator believes is relevant to such decision. The 2008 Farm Bill specifies that the Secretary will adjust NAMP to reflect average quality discounts applied to the local or regional market price of a crop. Adjustments will be made at the State and county levels to account for crop value that is affected by quality or is reduced due to excessive high moisture content resulting from a disaster-related condition. Quality adjustments will require participants to provide verifiable evidence of production that details the extent of the quality loss for a specific quantity. Test evidence to support the need for quality adjustments, in addition to meeting all the requirements of § 760.641, must have been completed by January 1 of the year following harvest.

For a crop for which an eligible participant on a farm receives assistance under NAP, NAMP will be not more than the price of the crop established under NAP. As determined by the Deputy Administrator, NAMP will be derived using data from the National Agricultural Statistics Service and other sources, and will consist of only one nationwide NAMP for the crop. NAMP may be adjusted, as determined by the Deputy Administrator, to reflect regional variations in a manner consistent with FCIA or NAP. NAMPs may be adjusted by FSA State committees, in accordance with procedures set out by the Deputy Administrator to recognize average quality loss factors that are reflected in market by region. In general, adjustments will be made at the State level for counties or portions of counties. The NAMP will be established on a harvested basis, not including costs of transportation, storage, processing, marketing, or other post-harvest expenses, as determined by FSA.

In all cases, matters such as NAMPs and other program provisions that apply generally, which are not established or determined in response to individual participant applications, are not and will not be individually appealable or contestable. Participants have the right to challenge administrative decisions made in response to their particular applications; however, they cannot appeal general program provisions such as average prices, average yields, NAMPs, or factors used for similarly situated participants, as specified in 7 CFR 760.110.

Production methods and risk management of value loss crops, such as ornamental nursery and aquaculture, are significantly different than for yield-based crops. Where a yield-based crop is harvested and marketed in a single crop year or marketing year, the participant's inventory of the typical value loss crop fluctuates, sometimes rapidly, in the course of normal business operations. The total value of the inventory fluctuates for reasons that may be unrelated to a disaster or to a farm's expected annual revenue or production.

SURE payment eligibility for value loss crops will be determined based on inventory and losses at the time of the disaster and only for the losses due to that disaster. This is in contrast to other types of crops, where the SURE guarantee will typically be based on several years of production history. The guarantee for value loss crops will be based on the inventory on hand immediately before the disaster and the revenue used for the payment calculation will be based on the inventory immediately after the disaster. Daily inventory records required for NAP or crop insurance will typically be sufficient for documenting losses for SURE payment eligibility. All other inventory not marketed immediately prior to and after the disaster event are not relevant for SURE purposes and will not be counted as part of the guarantee or as farm revenue. Further, farm revenue will not be adjusted for market price declines due to the complexity in determining average market prices by species for value loss crops. Quality will also not be further considered in determining revenue. These provisions are consistent with insurance policies and NAP for value loss crops.

For value loss crops, the SURE guarantee will be based on the level of insurance coverage selected, as with other crops. For example, if a participant had $100,000 value of value loss crop inventory immediately before the disaster or event and had elected an insurance coverage level of 70 percent, the SURE payment would be calculated on 60 percent of the difference between the dollar value of inventory immediately after disaster ($0 in this example for a total loss) and the SURE guarantee of $80,500 ($100,000 times 70 percent coverage level times 115 percent). If the participant was already paid $70,000 in crop insurance indemnity over the cost of the producer-paid premiums for the farm, as specified in this rule (which counts as revenue), then SURE would pay 60 percent of the difference between the SURE guarantee for the participant ($80,500) and the $70,000 indemnity. In this case, 60 percent of $10,500 equals $6,300.

There is no pre-sign-up or pre-enrollment required for SURE, but participants must submit a complete application in order to be eligible to receive payment. The application for payment will serve as the participant's certification of eligibility and interests. FSA will use these certifications to determine payment eligibility. Participants must submit an application by March 1 of the calendar year two years after the crop year of the loss. For example, for the 2009 crop year, the SURE application including certification of interests must be submitted to the FSA county office by March 1, 2011.

The 2008 Farm Bill, as amended by the Recovery Act, contains a lack of access provision that authorizes discretion to the Secretary to provide assistance to participants who suffered a 2008 production loss due to a natural cause, except as specified in the Recovery Act. Under that provision, assistance may be provided to producers that did not have access to a policy or plan of insurance or did not qualify for a written agreement because one or more farming practices, which the Secretary has determined are good farming practices, differ significantly from practices of producers of the same crop in other regions of the United States, and were not eligible for NAP coverage. The Deputy Administrator has the authority to exercise this discretion as needed, but it is understood that the scope of this provision is very limited. Whether the Deputy Administrator exercises this authority or not is not a relief determination for an individual program participant based on particular facts but a discretionary determination of general effect. Accordingly, it is FSA's position that such determinations are not subject to administrative appeal either within FSA or before the National Appeal Division of the Department.

The 2008 Farm Bill, as amended by the Recovery Act, authorized the Secretary to provide equitable treatment as the Secretary considers appropriate for eligible participants on a farm that suffered production losses in the 2008 crop year that result in multi-year production losses. In order to be consistent with policies or plans of risk management coverage available to the majority of crops that are likely to be included in the SURE farm, and due to the complexity and potential problems of calculating multi-year losses on both the farm guarantee and revenue sides, as well as the difficulty in determining whether events in any one crop year were significant enough to result in multi-year losses, the Secretary has elected not to implement any discretionary provisions for multi-year losses under SURE at this time.

The 2008 Consolidated Security, Disaster Assistance, and Continuing Appropriations Act (Pub. L. 110-329) made section 1601(c)(2) of the 2008 Farm Bill applicable in implementing section 12033 of the 2008 Farm Bill. To the extent relevant, the exemptions granted by section 1601(c)(2) of the 2008 Farm Bill apply, we believe, to the corresponding provision enacted in section 15101 since they are identical except for the provisions for funding in section 15101, which do not appear at all in section 12033. Otherwise, the provisions of Public Law 110-329 would have no meaning. Therefore, these regulations are exempt from the notice and comment requirements of the Administrative Procedures Act (5 U.S.C. 553), as specified in section 1601(c)(2) of the 2008 Farm Bill, which requires that the regulations be promulgated and administered without regard to the notice and comment provisions of section 553 of title 5 of the United States Code or the Statement of Policy of the Secretary of Agriculture effective July 24, 1971, (36 FR 13804) relating to notices of proposed rulemaking and public participation in rulemaking.

The Office of Management and Budget (OMB) designated this rule as economically significant under Executive Order 12866 and, therefore, OMB reviewed this final rule. A cost-benefit assessment of this rule is summarized below and is available from the contact information above.

SURE payments for 2008 through 2011 are expected to total $3.4 billion, an average of $0.85 billion per crop year, which represents both the cost of the program and the benefit to participants. This is less than the average of $1.14 billion per year for previous ad hoc crop disaster programs from 1998 to 2007. This estimate for SURE was estimated by taking the cost of ad hoc crop disaster programs from 1998 to 2007 and adjusting that cost for predicted cash value of crop production for 2008 through 2011 and for the specific eligibility requirements for SURE.

Although crop prices are expected to continue rising, potentially resulting in greater costs for SURE than for previous programs, the overall costs for SURE are expected to be less than to the cost of previous ad hoc disaster programs because, unlike ad hoc disaster programs, SURE, in general, is additional compensation for established losses under crop insurance or NAP. SURE is not a benefit that replaces or duplicates previously received crop insurance or NAP payments, although the crop insurance indemnity that is counted in the SURE revenue calculation is after subtracting producer-paid premiums for crop insurance in an amount not to exceed the crop insurance indemnity payment. This provision has been included in the rule because the 2008 Farm Bill exempts program indemnities from the calculation of the farm's revenue for purposes of comparing that revenue with the program guarantee. Often, the premium is simply deducted from the indemnity rather than paid outright and it is FSA's view that the 2008 Farm Bill contemplated the “indemnity” to mean the net revenue paid to the farmer as that would reflect the actual positive effect of that recovery on revenue. This does not suggest in any way that premiums that do not result in a indemnity payment or other farm costs should be deducted, but rather is an accommodation of what it believed to be the perceived intent of this specific provision in the 2008 Farm Bill addressing indemnities.

Also, SURE payments are based on farm revenue losses, rather than losses in particular crops or individual units, so participants with losses in one crop but not others may or may not qualify for a SURE payment.

The SURE guarantee cap is 90 percent of expected revenue, while previous programs had a cap of 95 percent of normal crop value.

This rule is not subject to the Regulatory Flexibility Act since FSA is not required to publish a notice of proposed rulemaking for this rule.

The environmental impacts of this rule have been considered in a manner consistent with the provisions of the National Environmental Policy Act (NEPA), 42 U.S.C. 4321-4347, the regulations of the Council on Environmental Quality (40 CFR parts 1500-1508), and FSA regulations for compliance with NEPA (7 CFR part 799). FSA has determined that the combination of discretionary and non-discretionary provisions of this Rule would not constitute a major Federal action that would significantly affect the quality of the human environment, and therefore, no environmental assessment or environmental impact statement will be prepared.

This program is not subject to Executive Order 12372, which requires consultation with State and local officials. See the notice related to 7 CFR part 3015, subpart V, published in the Federal Register on June 24, 1983 (48 FR 29115).

The rule has been reviewed in accordance with Executive Order 12988. The provisions of this rule preempt State laws to the extent such laws are inconsistent with the provisions of this rule. Before any judicial action may be brought concerning the provisions of this rule, the administrative remedies must be exhausted.

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

The policies contained in this rule do not impose substantial unreimbursed direct compliance costs on Indian tribal governments or have tribal implications that preempt tribal law.

This rule contains no Federal mandates under the regulatory provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) for State, local, and tribal governments or the private sector. In addition, FSA was not required to publish a notice of proposed rule making for this rule. Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA.

This rule has been determined to be Major under SBREFA (Pub. L. 104-121). SBREFA normally requires that an agency delay the effective date of a major rule for 60 days from the date of publication to allow for Congressional review. Section 808 of SBREFA allows an agency to make a major regulation effective immediately if the agency finds there is good cause to do so. FSA finds that it would be contrary to the public interest to delay implementation of this rule because it would significantly delay assistance to the many people affected by the disasters addressed by this rule. Therefore, this rule is effective immediately.

This rule applies to the following Federal assistance program that is not listed in the Catalog of Federal Domestic Assistance: 10.090-SURE.

The regulations in this rule are exempt from the requirements of the Paperwork Reduction Act (44 U.S.C. Chapter 35), as specified in section 1601(c)(2) of the 2008 Farm Bill, which provides that these regulations be promulgated and administered without regard to the Paperwork Reduction Act.

FSA is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to government information and services, and for other purposes.

In Title 10 of the Code of Federal Regulations, Parts 1 to 50, revised as of January 1, 2009, on page 913, in § 50.72, reinstate the text of footnote 1 to read as follows:

The Home Mortgage Disclosure Act (HMDA; 12 U.S.C. 2801 et seq.) requires most mortgage lenders located in metropolitan areas to collect data about their housing-related lending activity. Annually, lenders must report those data to their federal supervisory agencies and make the data available to the public. The Board's Regulation C (12 CFR part 203) implements HMDA.

Prior to 1997, HMDA exempted depository institutions with assets totaling $10 million or less, as of the preceding year-end. Provisions of the Economic Growth and Regulatory Paperwork Reduction Act of 1996 (codified at 12 U.S.C. 2808(b)) amended HMDA to expand the exemption for small depository institutions. The statutory amendment increased the asset-size exemption threshold by requiring a one-time adjustment of the $10 million figure based on the percentage by which the CPIW for 1996 exceeded the CPIW for 1975, and it provided for annual adjustments thereafter based on the annual percentage increase in the CPIW. The one-time adjustment increased the exemption threshold to $28 million for 1997 data collection.

Section 203.2(e)(1)(i) of Regulation C provides that the Board will adjust the threshold based on the year-to-year change in the average of the CPIW, not seasonally adjusted, for each twelve-month period ending in November, rounded to the nearest million dollars. Pursuant to this section, the Board has adjusted the threshold annually, as appropriate.

For 2009, the threshold was $39 million. During the twelve-month period ending in November 2009, the CPIW decreased by 0.98 percent. That decrease results in a new threshold, before rounding, of about $38.62 million dollars, which must be rounded to the nearest million dollars pursuant to Regulation C. As a result, the exemption threshold remains $39 million. Thus, depository institutions with assets of $39 million or less as of December 31, 2009 are exempt from collecting data in 2010. An institution's exemption from collecting data in 2010 does not affect its responsibility to report data it was required to collect in 2009.

Under the Administrative Procedures Act, notice and opportunity for public comment are not required if the Board finds that notice and public comment are unnecessary. 5 U.S.C. 553(b)(B). The amendment in this notice is technical. Comment 2(e)-2 is amended to update the exemption threshold. This amendment merely applies the formula established by Regulation C for determining any adjustments to the exemption threshold. For these reasons, the Board has determined that publishing a notice of proposed rulemaking and providing opportunity for public comment are unnecessary. Therefore, the amendment is adopted in final form.

In Title 12 of the Code of Federal Regulations, Parts 300 to 499, revised as of January 1, 2009, make the following corrections:

In Appendix C to Part 360, on page 522, in the table, in the first column, add the numbers 1, 2, 3, 4, 1, 2, 3 at the end of entries 17 through 23, respectively, and on page 523, in the same table, in the first column, add the numbers 1 through 6 at the end of entries 28 through 33, respectively.

In Appendix F to Part 360, on page 528, in the table, in the first column, add the numbers 1 and 2 at the end of entries 4 and 5, respectively; and on page 529, in the same table, in the first column, add the numbers 1, 2, 1, 2, 3, 1, 2 at the end of entries 13 through 19, respectively.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on October 9, 2009 (74 FR 52156). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

We gave the public the opportunity to participate in developing this AD. We considered the comment received.

PILATUS Aircraft Ltd. states that there is a typographical error in one of the affected part numbers (P/N) referenced in the proposed AD. The P/N should read 114.48.07.127 instead of 114.48.07.172.

We agree with the commenter and will make that change in final rule AD action.

We reviewed the available data, including the comment received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We determined that these changes will not increase the economic burden on any operator or increase the scope of the AD.

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

We might also have required different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the AD.

We estimate that this AD will affect 10 products of U.S. registry. We also estimate that it will take about 4 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $80 per work-hour.

Based on these figures, we estimate the cost of the AD on U.S. operators to be $3,200, or $320 per product.

In addition, we estimate that any necessary follow-on actions will take about 20 work-hours and require parts costing $20,000, for a cost of $21,600 per product. We have no way of determining the number of products that may need these actions.

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

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

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

For the reasons discussed above, I certify this AD:

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

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

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

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

You may examine the AD docket on the Internet at http://www.regulations.gov; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

The FAA issued a second supplemental notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to certain Boeing Model 737-300, -400, -500, -600, -700, -700C, -800, and -900, and 747-400 series airplanes; and Model 757, 767, and 777 airplanes. That second supplemental NPRM was published in the Federal Register on January 12, 2009 (74 FR 1159). That second supplemental NPRM proposed to require modifying the static inverter by replacing resistor R170 with a new resistor and relocating the new resistor.

Since issuance of the second supplemental NPRM, Boeing has issued the revised service bulletins listed in the following table:

No additional work is necessary for airplanes on which the modification specified in Boeing Alert Service Bulletin 737-24A1166, Revision 3, dated July 25, 2007, has been done. Revision 4 clarifies certain sections, moves airplanes from Group 2 to Group 1 in the effectivity, and removes the Group 2 work instructions.

Boeing Special Attention Service Bulletin 757-24-0110, Revision 1, dated August 6, 2009, adds an inspection of certain static inverter part numbers to make sure only approved part numbers are installed; however, the proposed modification requires modifying the static inverter by replacing the resistor with a new resistor having an approved part number. Revision 1 also moves airplanes from Group 2 to Group 1 in the effectivity, and the Group 2 work instructions were deleted. Therefore, no additional work is necessary for airplanes modified in accordance with Boeing Special Attention Service Bulletin 757-24-0110, dated April 28, 2005.

Boeing Special Attention Service Bulletin 757-24-0111, Revision 1, dated August 6, 2009, also adds an inspection of certain static inverter part numbers to make sure only approved part numbers are installed; however, the proposed modification requires modifying the static inverter by replacing the resistor with a new resistor having an approved part number. Revision 1 also moves airplanes from Group 2 to Group 1 in the effectivity, and the Group 2 work instructions were deleted. No additional work is necessary for airplanes modified in accordance with Boeing Special Attention Service Bulletin 757-24-0111, dated April 28, 2005.

We have revised Table 1 of this AD to refer to the latest revisions of the service bulletins and added a new paragraph (h) to this AD to give credit for actions done in accordance with the earlier revisions that were referenced in Table 1 of the NPRM.

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

Northwest Airlines has no objection to the second supplemental NPRM; Boeing concurs with the content of the second supplemental NPRM.

American Airlines (AAL) and FedEx Express request that we allow installation of static inverters having certain part numbers.

AAL asks that we permit installation of static inverters having part numbers (P/Ns) S282T004-2, -3, and -4. AAL states that those static inverters do not have an overheating safety concern, which is the unsafe condition addressed in the second supplemental NPRM. AAL adds that static inverters that have P/Ns S282T004-2, -3, and -4 are fully interchangeable on the Model 757 fleet.

FedEx Express asks that Boeing Special Attention Service Bulletin 757-24-0110, dated April 28, 2005, be revised to include Avionics Instruments static inverters having P/Ns S282T004-28 and S282T004-30 as acceptable to remain on Model 757 airplanes. FedEx Express adds that since issuance of the original issue of Boeing Special Attention Service Bulletin 757-24-0110, those static inverters have been installed on some Model 757 airplanes and have been added to the Boeing Illustrated Parts Catalog. FedEx Express notes that P/Ns S282T004-2, -3, -4, -28, and -30 should be the P/Ns for the static inverters installed in accordance with the requirements in the second supplemental NPRM. FedEx Express adds that combining Groups 1 and 2 into one group would accomplish this task.

We agree with the commenters' requests and provide the following explanation. As noted previously, Boeing has issued Special Attention Service Bulletin 757-24-0110, Revision 1, dated August 6, 2009. The effectivity specified in Revision 1 is changed to move airplanes from Group 2 to Group 1, and to remove the Group 2 work instructions by combining Group 2 work instructions with Group 1. The work instructions specified in Revision 1 also add an inspection for certain static inverter part numbers that allows for installation of static inverters having P/Ns S282T004-2, -3, -4, -25, -28, and -30. Inspection of the static inverter P/Ns will prevent unnecessary replacement of approved static inverters. We have changed the applicability in paragraph (c) of this AD to identify Revision 1 of Boeing Special Attention Service Bulletin 757-24-0110.

AAL states that it found a discrepancy in Figure 1 of Boeing Special Attention Service Bulletin 767-24-0160, dated June 30, 2005 (referred to in the second supplemental NPRM), and asks that this service bulletin be revised to correct the discrepancy. AAL adds that the discrepancy is in Figure 1, which specifies an inspection of the static inverter on Groups 1 and 3 airplanes. Figure 2 also contains an error which specifies the actions are applicable to Group 3 airplanes. However, Group 2 airplanes are not identified in either of these figures. AAL also notes that in Boeing Service Message 1-1156909141-2, Boeing specifies that static inverters having P/Ns S282T004-2, -3, -4 are acceptable for installation across the Model 757 airplane fleet since the Model 767 airplane fleet uses the same static inverter.

We acknowledge the commenter's concern and agree that the error in Figure 1 of Boeing Special Attention Service Bulletin 767-24-0160, dated June 30, 2005, should be corrected in a revision; but we do not consider that delaying the final rule until after the release of a future revision is warranted. The original issue of Boeing Special Attention Service Bulletin 767-24-0160 includes sufficient information to accomplish the modification of the static inverter. However, we have added new paragraph (g) to this AD to exclude Group 2 airplanes that have a static inverter with part number S282T004-2, S282T004-3, or S282T004-4, from the modification requirement. We have re-identified subsequent paragraphs accordingly.

AAL states that the cost estimate for material and labor necessary for accomplishing the modification on its airplanes is more than the estimate in the second supplemental NPRM.

We infer that AAL is asking that the work hours and cost specified in the Cost Impact section of the AD be increased. We do not agree. The cost information below describes only the direct costs of the specific actions required by this AD. Based on the best data available, the manufacturer provided the number of work hours (up to 2 hours, depending on airplane configuration) necessary to do the required actions. This number represents the time necessary to perform only the actions actually required by this AD. We recognize that, in doing the actions required by an AD, operators might incur incidental costs in addition to the direct costs. The cost analysis in AD rulemaking actions, however, typically does not include incidental costs such as the time required to gain access and close up, time necessary for planning, or time necessitated by other administrative actions. Those incidental costs, which might vary significantly among operators, are almost impossible to calculate. We have not changed the AD in this regard.

Cargolux Airlines International S.A. states that it has followed the history of the proposed rule since 2003, and is not aware of any new event reported on the static inverters since that time. Cargolux asks for clarification that only one airplane was affected prior to 2003, and no airplanes were affected after 2003. Cargolux also asks for the number of occurrences of R170 resistors overheating, and the number of units manufactured.

We acknowledge the commenter's request and provide the following clarification. Prior to 2003 there were 39 static inverter failures on 39 airplanes; since 2003 there have been 15 inverters on 15 airplanes that failed due to the R170 resistor overheating, and approximately 9,400 units have been manufactured.

We have added a new paragraph (d) to this AD to provide the Air Transport Association (ATA) of America code 24: Electrical power. This code is added to make this AD parallel with other new AD actions. We have reidentified subsequent paragraphs accordingly.

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

There are approximately 3,856 airplanes of the affected design in the worldwide fleet. The FAA estimates that 1,882 airplanes of U.S. registry will be affected by this AD. The following table provides the estimated costs for U.S. operators to comply with this AD.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if the AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

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

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

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

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

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

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

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

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

On February 13, 2008, we issued AD 2008-04-11, Amendment 39-15383 (73 FR 9666, February 22, 2008). That AD applied to all Model 707 airplanes, and Model 720 and 720B series airplanes. That AD required revising the FAA-approved maintenance program by incorporating new airworthiness limitations (AWLs) for fuel tank systems to satisfy Special Federal Aviation Regulation No. 88 requirements. That AD also required an initial inspection to phase in certain repetitive AWL inspections, and repair if necessary. That AD resulted from a design review of the fuel tank systems. The actions specified in that AD are intended to prevent the potential for ignition sources inside fuel tanks caused by latent failures, alterations, repairs, or maintenance actions, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane.

Critical design configuration control limitations (CDCCLs) are limitation requirements to preserve a critical ignition source prevention feature of the fuel tank system design that is necessary to prevent the occurrence of an unsafe condition. The purpose of a CDCCL is to provide instruction to retain the critical ignition source prevention feature during configuration change that may be caused by alterations, repairs, or maintenance actions. A CDCCL is not a periodic inspection.

Since we issued that AD, we have determined that it is necessary to clarify the AD's intended effect on spare and on-airplane fuel tank system components, regarding the use of maintenance manuals and instructions for continued airworthiness.

Section 91.403(c) of the Federal Aviation Regulations (14 CFR 91.403(c)) specifies the following:

The unsafe condition described previously is likely to exist or develop on other airplanes of the same type design. For this reason, we are issuing this AD to revise AD 2008-04-11. This new AD retains the requirements of the existing AD, and adds a new note to clarify the intended effect of the AD on spare and on-airplane fuel tank system components.

AD 2008-04-11 allowed the use of later revisions of the airworthiness limitations. That provision has been removed from this AD. Allowing the use of “a later revision” of specific service documents violates Office of the Federal Register regulations for approving materials that are incorporated by reference. Affected operators, however, may request approval to use a later revision of the referenced service documents as an alternative method of compliance, under the provisions of paragraph (j) of this AD.

In addition, we have revised this AD to identify the legal name of the manufacturer as published in the most recent type certificate data sheet for the affected airplane models.

This revision imposes no additional economic burden. The current costs for this AD are repeated for the convenience of affected operators, as follows:

There are about 213 airplanes of the affected design in the worldwide fleet. This AD affects about 76 airplanes of U.S. registry. The required actions take about 8 work hours per airplane, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the AD for U.S. operators is $48,640, or $640 per airplane.

This revision merely clarifies the intended effect on spare and on-airplane fuel tank system components, and makes no substantive change to the AD's requirements. For this reason, it is found that notice and opportunity for prior public comment for this action are unnecessary, and good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments before it becomes effective. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2009-1209; Directorate Identifier 2009-NM-151-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

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

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

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

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

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

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

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

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

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on October 22, 2009 (74 FR 54498), and proposed to supersede AD 2006-21-12, Amendment 39-14797 (71 FR 61636, October 19, 2006). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states that:

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

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

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

We might also have required different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a Note within the AD.

We estimate that this AD will affect 15 products of U.S. registry. We also estimate that it will take about 73 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $80 per work-hour. Required parts will cost about $15,100 per product. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $314,100, or $20,940 per product.

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

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

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

For the reasons discussed above, I certify this AD:

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

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

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

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

You may examine the AD docket on the Internet at http://www.regulations.gov; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

On June 22, 2009, the FAA issued AD 2009-12-51, Amendment 39-15952 (74 FR 31167, June 30, 2009). That AD requires initial and repetitive visual inspections of certain reduction gearboxes (module M05) for oil leakage, repair if leaking, and repair of all affected modules as terminating action to the repetitive inspections. That AD was the result of reports of oil leaks from certain reduction gearbox (module M05) front casings. The engine manufacturer reported that the lubrication duct plug was not properly bonded/glued in place. That condition, if not corrected, could result in uncommanded in-flight engine shutdown, possible engine fire, and an emergency autorotation landing.

Since AD 2009-12-51 was issued, the European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, recently notified us that an unsafe condition may exist on Turbomeca Arriel 1A1, 1A2, 1B, 1C, 1C1, 1C2, 1D, 1D1, 1E2, 1K1, 1S, and 1S1 turboshaft engines. EASA advises that Turbomeca has added five more serial numbers of the reduction gearboxes (module M05) that are affected, and has also added an alternative optional terminating action to the repetitive visual inspections. This AD requires initial and repetitive visual inspections of certain reduction gearboxes (module M05) for oil leakage, repair if leaking, and repair of all affected modules as optional terminating action to the repetitive inspections. We are issuing this AD to prevent uncommanded in-flight engine shutdown, possible engine fire, and an emergency autorotation landing.

We have reviewed and approved the technical contents of Turbomeca S.A. Mandatory Service Bulletin (MSB) No. A292 72 0825, Version B, dated October 6, 2009, that describes procedures for visual inspections of affected reduction gearboxes (module M05) for oil leakage, repair if leaking, and repair of all affected modules as terminating action to the repetitive inspections.

EASA classified this service bulletin as mandatory and issued AD 2009-0245-E to ensure the airworthiness of these Turbomeca Arriel 1A1, 1A2, 1B, 1C, 1C1, 1C2, 1D, 1D1, 1E2, 1K1, 1S, and 1S1 turboshaft engines in Europe.

This engine model is manufactured in France and is type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Under this bilateral airworthiness agreement, EASA has kept the FAA informed of the situation described above. We have examined the findings of EASA, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.

The unsafe condition described previously is likely to exist or develop on other Turbomeca Arriel 1A1, 1A2, 1B, 1C, 1C1, 1C2, 1D, 1D1, 1E2, 1K1, 1S, and 1S1 turboshaft engines of the same type design. We are issuing this AD to prevent uncommanded in-flight engine shutdown, possible engine fire, and an emergency autorotation landing. This AD requires initial and repetitive visual inspections of certain reduction gearboxes (module M05) for oil leakage, repair if leaking, and repair of all affected modules as terminating action to the repetitive inspections. You must use the service information described previously to perform the actions required by this AD.

Since an unsafe condition exists that requires the immediate adoption of this AD, we have found that notice and opportunity for public comment before issuing this AD are impracticable, and that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to send us any written relevant data, views, or arguments regarding this AD. Send your comments to an address listed under ADDRESSES. Include “AD Docket No. FAA-2009-0544; Directorate Identifier 2009-NE-17-AD” in the subject line of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify it.

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

You may examine the AD docket on the Internet at http://www.regulations.gov; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone (800) 647-5527) is the same as the Mail address provided in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

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

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

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

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

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

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

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

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

The FAA issued a supplemental notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to certain Boeing Model 737-600, -700, -700C, -800, and -900 series airplanes. That supplemental NPRM was published in the Federal Register on August 5, 2009 (74 FR 38988). That supplemental NPRM proposed to require repetitive lubrication of the left and right main landing gear (MLG) forward trunnion pins; and an inspection for discrepancies of the transition radius, lead-in chamfer, and cross-bolt bore of the MLG forward trunnion pins, and repair or replacement if necessary. Doing the applicable inspections and repairs/replacements, or overhauling the trunnion pins, ends the repetitive lubrication requirements of the proposed AD. For airplanes on which a certain repair is done, the action proposed to require repetitive inspections for discrepancies of the transition radius.

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

One commenter, Boeing, concurs with the content of the supplemental NPRM.

Korean Air (KA) requests that we add some of the referenced service bulletin language to further clarify the proposed AD. KA requests that we add the phrase “with MLG not removed (in situ)” to paragraph (h), and “transition radius, the lead-in chamfer and cross-bolt bore with MLG removed” to paragraph (i), of the supplemental NPRM.

We partially agree. Adding language from Boeing Service Bulletin 737-32-1376, Revision 2, dated August 6, 2008, can further clarify the actions in the AD. We have revised paragraph (h) of the AD to add “with MLG not removed (in situ)” as the commenter requests. We have also revised paragraph (i) of the AD to add “with the MLG removed;” however, reference to “the lead-in chamfer and cross-bolt bore” was already stated in paragraph (i) of the supplemental NPRM.

We do not agree, however, to add a reference to “transition radius” to paragraph (i) of the AD. Although paragraph (i) of the AD does not specify to inspect the transition radius of the trunnion pin with the pin removed, that inspection, along with other tasks, would be covered by the typical maintenance requirements for overhauling the MLG. We have not changed the AD in this regard.

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

There are about 890 airplanes of the affected design in the worldwide fleet. The following table provides the estimated costs for U.S. operators to comply with this AD. The average labor rate is $80 per work hour.

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

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

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

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

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

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

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

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

On May 8, 2008, we issued AD 2008-11-01, Amendment 39-15523 (73 FR 29414, May 21, 2008). That AD applied to certain Model 767-200, -300, -300F, and -400ER series airplanes. That AD required revising the FAA-approved maintenance program to incorporate new airworthiness limitations (AWLs) for fuel tank systems to satisfy Special Federal Aviation Regulation No. 88 requirements. That AD also required an initial inspection to phase in certain repetitive AWL inspections, and repair if necessary. That AD resulted from a design review of the fuel tank systems. The actions specified in that AD are intended to prevent the potential for ignition sources inside fuel tanks caused by latent failures, alterations, repairs, or maintenance actions, which, in combination with flammable fuel vapors, could result in a fuel tank explosion and consequent loss of the airplane.

Critical design configuration control limitations (CDCCLs) are limitation requirements to preserve a critical ignition source prevention feature of the fuel tank system design that is necessary to prevent the occurrence of an unsafe condition. The purpose of a CDCCL is to provide instruction to retain the critical ignition source prevention feature during configuration change that may be caused by alterations, repairs, or maintenance actions. A CDCCL is not a periodic inspection.

Since we issued that AD, we have determined that it is necessary to clarify the AD's intended effect on spare and on-airplane fuel tank system components, regarding the use of maintenance manuals and instructions for continued airworthiness.

Section 91.403(c) of the Federal Aviation Regulations (14 CFR 91.403(c)) specifies the following:

On October 20, 2009, the FAA published in the Federal Register a notice of proposed rulemaking to amend Class D airspace for St. Louis, MO, reconfiguring controlled airspace at Spirit of St. Louis Airport, St. Louis, MO (74 FR 53681) Docket No. FAA-2009-0543. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Class D airspace designations are published in paragraph 5000 of FAA Order 7400.9T signed August 27, 2009, and effective September 15, 2009, which is incorporated by reference in 14 CFR Part 71.1. The Class D airspace designations listed in this document will be published subsequently in the Order.

This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by amending Class D airspace extending upward from the surface to and including 3,000 feet MSL to accommodate SIAPs at Spirit of St. Louis Airport, St. Louis, MO. This action is necessary for the safety and management of IFR operations at the airport.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends controlled airspace at Spirit of St. Louis Airport, St. Louis, MO.

On September 3, 2009, the FAA published in the Federal Register a notice of proposed rulemaking to amend Class E airspace for West Branch Community Airport, West Branch, MI (74 FR 45575) Docket No. FAA-2009-0696. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9T signed August 27, 2009, and effective September 15, 2009, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by amending Class E airspace extending upward from 700 feet above the surface to accommodate SIAPs at West Branch Community Airport, West Branch, MI. This action is necessary for the safety and management of IFR operations at the airport.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends controlled airspace at West Branch Community Airport, West Branch, MI.

On September 22, 2009, the FAA published in the Federal Register a notice of proposed rulemaking to amend Class E airspace for Red Oak, IA, reconfiguring controlled airspace at Red Oak Municipal Airport, Red Oak, IA (74 FR 48172) Docket No. FAA-2009-0801. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9T signed August 27, 2009, and effective September 15, 2009, which is incorporated by reference in 14 CFR Part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by amending Class E airspace for the Red Oak, IA area, adding additional controlled airspace extending upward from 700 feet above the surface to accommodate SIAPs at Red Oak Municipal Airport, Red Oak, IA. This action also updates the geographic coordinates of Red Oak Municipal Airport and the Red Oak NDB to coincide with the FAA's National Aeronautical Charting Office. This action is necessary for the safety and management of IFR operations at the airport.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends controlled airspace at Red Oak Municipal Airport, Red Oak, IA.

On October 14, 2009, the FAA published in the Federal Register a notice of proposed rulemaking to establish Class E airspace for Albany Municipal Airport, Albany, TX (74 FR 52705) Docket No. FAA-2009-0631. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9T signed August 27, 2009, and effective September 15, 2009, which is incorporated by reference in 14 CFR Part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by establishing Class E airspace extending upward from 700 feet above the surface to accommodate SIAPs at Albany Municipal Airport, Albany, TX. This action is necessary for the safety and management of IFR operations at the airport.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace at Albany Municipal Airport, Albany, TX.

This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or revoking SIAPS, Takeoff Minimums and/or ODPS. The complete regulators description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA Forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.

The large number of SIAPs, Takeoff Minimums and ODPs, in addition to their complex nature and the need for a special format make publication in the Federal Register expensive and impractical. Furthermore, airmen do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their depiction on charts printed by publishers of aeronautical materials. The advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA forms is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAPs and the effective dates of the, associated Takeoff Minimums and ODPs. This amendment also identifies the airport and its location, the procedure, and the amendment number.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as contained in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPS and Takeoff Minimums and ODPS, an effective date at least 30 days after publication is provided.

Further, the SIAPs and Takeoff Minimums and ODPS contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPS and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedures before adopting these SIAPS, Takeoff Minimums and ODPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule ” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (FDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of Title 14 of the Code of Federal Regulations.

The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained in FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAP and the corresponding effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP as modified by FDC/P-NOTAMs.

The SIAPs, as modified by FDC P-NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for all these SIAP amendments requires making them effective in less than 30 days.

Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making these SIAPs effective in less than 30 days.

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

Nicholas Piramal India Ltd. UK has informed FDA that it has transferred ownership of, and all rights and interest in, ANADA 200-237 for Isoflurane, USP, to Piramal Healthcare Ltd., Piramal Tower, Ganpatrao Kadam Marg, Lower Parel, Mumbai - 400 013, India. Accordingly, the regulations are amended in 21 CFR 529.1186 to reflect this change of sponsorship.

Following this change of sponsorship, Nicholas Piramal India Ltd. UK is no longer the sponsor of an approved application. In addition, Piramal Healthcare Ltd. is not currently listed in the animal drug regulations as a sponsor of an approved application. Accordingly, 21 CFR 510.600(c) is being amended to remove the entries for Nicholas Piramal India Ltd. UK to add entries for Piramal Healthcare Ltd.

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

On December 22, 2006, the IRS and the Treasury Department published several temporary regulations, including temporary regulations under sections 1502 and 1561. See TD 9304 (71 FR 76904), 2007-1 CB 423. Also on December 22, 2006, the IRS and the Treasury Department issued a notice of proposed rulemaking cross-referencing those temporary regulations. See REG-161919-05 (71 FR 76955), 2007-1 CB 463. For administrative reasons, these regulations were relocated in REG-113688-09. See TD 9451 (74 FR 25147), 2009-23 IRB 1060.

On December 26, 2007, the IRS and the Treasury Department published several temporary regulations, including an additional temporary regulation under section 1561. See TD 9369 (72 FR 72929), 2008-6 IRB 394. Also on December 26, 2007, the IRS and the Treasury Department issued a notice of proposed rulemaking cross-referencing those temporary regulations. See REG-104713-07 (72 FR 72970), 2008-6 IRB 409.

This Treasury decision adopts the proposed regulations (§§ 1.1502-43, 1.1502-47, 1.1561-0, 1.1561-1, 1.1561-2 and 1.1561-3) with no substantive changes. However, this Treasury decision makes clarifying changes to §§ 1.1561-2 and 1.1561-3. These changes are discussed in the following portion of this preamble.

1. Only the Positive Taxable Income or Positive Alternative Minimum Taxable Income of the Component Members of a Controlled Group of Corporations Shall Be Combined for Purposes of Determining the Amount of the Additional Tax Imposed by Section 11(b)(1) and the Reduction in the Alternative Minimum Tax Exemption Amount Under Section 55(d)(3), Respectively.

Section 1561(a) provides that in computing the amount of additional tax imposed by section 11(b)(1) (the additional tax), and the phase-out of the alternative minimum tax exemption amount under section 55(d)(3) (the exemption amount), the component members of a controlled group of corporations (as defined in section 1563) shall, as a first step, combine their taxable incomes (or alternative minimum taxable incomes) for their tax years that include the same December 31st date. This taxable income (or alternative minimum taxable income) is for the entire tax year of a component member, even if it was not a member of the group for each day of that tax year. In the case of the determination of the additional tax, the calculation is limited to the taxable incomes of those component members to which any part of the tax bracket amounts are apportioned.

The question has arisen whether a component member that incurs a loss for a tax year may apply that loss to reduce the amount of the combined taxable income (or combined alternative minimum taxable income) of the controlled group for purposes of determining the amount of the additional tax or the reduction in the exemption amount, respectively. This Treasury decision clarifies that, for these purposes, only the positive taxable incomes (or positive alternative minimum taxable incomes) of those component members can be combined.

Only if the members of an affiliated group of corporations, as defined in section 1504, elect to file a consolidated return, as defined in section 1502, may these members offset their income and losses in determining their consolidated Federal income tax liability. See, for example, Woolford Realty Co. v. Rose, 286 U.S. 319 (1932). Since the members of a controlled group have not elected to file a consolidated return (even if such controlled group meets the section 1504 definition of an affiliated group), they may not offset their income and losses in determining their combined Federal income tax liability. Hence, they cannot offset such income and losses to determine their combined additional tax liability or their combined alternative minimum taxable income for purposes of determining the reduction in the exemption amount.

2. A Component Member That Has a Short Taxable Year That Does Not Include a December 31st Date Calculates Its Additional Tax and Alternative Minimum Tax Liability on Just Its Own Income.

Section 1561(b) and § 1.1561-2(e) provide rules for apportioning the tax bracket amounts and accumulated earnings credit to a member with a short taxable year that does not include a December 31st date (a short-year member). However, § 1.1561-2(e) does not provide guidance to a short-year member for determining its additional tax liability. This Treasury decision clarifies that such a member determines its additional tax liability on its own income for such short taxable year. Further, such income is not combined with the taxable incomes of the other component members of the same controlled group for purposes of determining the additional tax liability of such other component members.

In addition, for purposes of a short-year member determining its alternative minimum tax liability, this Treasury decision includes a reference to section 443(d). Section 443(d) provides that if a taxpayer has a return of less than 12 months (whether or not the tax year of that taxpayer includes a December 31st date), its alternative minimum tax liability is determined on an annualized basis.

3. Clarification of the Rules Under Which an Apportionment Plan Is Terminated.

Section 1.1561-3(c)(3) provides the circumstances under which an apportionment plan is terminated. Paragraphs (iii) and (iv) of § 1.1561-3(c)(3) of the proposed regulations provided:

(iii) Any corporation which was a component member of such group on the particular December 31 is not a component member of such group on such succeeding December 31; or

(iv) Any corporation which was not a component member of such group on the particular December 31 is a component member of such group on such succeeding December 31.

It is often not feasible for the members of a controlled group to know for the current tax year whether a corporation will or will not be a component member of such group for the succeeding tax year. Accordingly, this Treasury decision clarifies these paragraphs by rewriting them to refer to the previous tax year and the current tax year, instead of the succeeding tax year. In addition, this Treasury decision clarifies that the fact that a corporation is joining or leaving a consolidated group, when such consolidated group is treated collectively as constituting one component member of the controlled group, will not serve to affect the ongoing status of such controlled group, provided that, after that corporation has either left or joined such consolidated group, such consolidated group remains in existence within the meaning of § 1.1502-75(d).

The IRS and the Treasury Department received no written or electronic comments from the public in response to the notice of proposed rulemaking and no public hearing was requested or held.

It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. Therefore, a regulatory flexibility analysis under the Regulatory Flexibility Act (5 U.S.C. chapter 6) is not required. Pursuant to section 7805(f) of the Code, the notices of proposed rulemaking preceding these regulations were submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small business.

The principal author of these regulations is Grid Glyer, Office of Associate Chief Counsel (Corporate). However, other personnel from the IRS and the Treasury Department participated in their development.

(c) Accumulated earnings credit. The component members of a controlled group of corporations are permitted to allocate the amount of the accumulated earnings credit unequally if they have an apportionment plan in effect.

(d) [Reserved].

(e) Short taxable years not including a December 31st date—(1) General rule. If a corporation has a short taxable year not including a December 31st date and, after applying the rules of section 1561(b) and paragraph (e)(2)(i) of this section, it qualifies as a component member of the group with respect to its short taxable year (short-year member), then, for purposes of subtitle A of the Internal Revenue Code, the amount of any tax-benefit item described in section 1561(b) allocated to that component member's short taxable year shall be the amount specified in section 1561(a) for that item, divided by the number of corporations which are component members of that group on the last day of that component member's short taxable year. The component members of such group may not apportion, by an apportionment plan, an amount of such tax-benefit item to any short-year member that differs from equal apportionment of that item.

(2) Additional rules. For purposes of paragraph (e)(1) of this section—

(i) Section 1563(b) shall be applied as if the last day of the taxable year of a short-year member were substituted for December 31st; and

(ii) The term short taxable year does not refer to any portion of a tax year of a corporation for which its income is required to be included in a consolidated return pursuant to § 1.1502-76(b).

(3) Calculation of the additional tax. A short-year member (as defined in paragraph (e)(1) of this section) for its short taxable year calculates its additional tax liability imposed by section 11(b)(1) only on its own income, and therefore the subsequent calculation of the additional tax liability with regard to the remaining members of the group will not include the income of this short-year member.

(4) Calculation of the alternative minimum tax. If a component member has a tax year of less than 12 months, whether or not such tax year includes a December 31st date, see section 443(d) for the annualization method required for calculating the alternative minimum tax.

(5) Examples. The provisions of this paragraph (e) may be illustrated by the following examples:

(f) Effective/applicability date. This section applies to any tax year beginning on or after December 21, 2009. However, taxpayers may apply this section to any Federal income tax return filed on or after December 21, 2009. For tax years beginning before December 21, 2009, see § 1.1561-2T as contained in 26 CFR part 1 in effect on April 1, 2009.

The Food, Conservation and Energy Act of 2008, Public Law 110-234, Section 14219, 22 Stat. 923 (2008) (“the Act”) amended the Debt Collection Act of 1982 (as amended by the Debt Collection Improvement Act of 1996) to authorize the offset of Federal nontax payments (for example, contract and salary payments) to collect delinquent Federal debt without regard to the amount of time the debt has been delinquent. Prior to this change, nontax payments could be offset only to collect debt that was delinquent for a period of less than ten years.

There is no similar time limitation in the statutes authorizing offset of Federal tax refund payments to collect Federal nontax debts (see 26 U.S.C. 6402(a) and 31 U.S.C. 3720A). However, Treasury had imposed a time limitation on collection of debts by tax refund offset in order to create uniformity in the way that it offset payments. Now that the ten-year limitation has been eliminated for the offset of nontax payments, the rationale for including a ten-year limitation for the offset of tax refund payments no longer applies. Therefore, on June 11, 2009, Treasury issued a notice of proposed rulemaking proposing to remove the limitations period by explicitly stating that no time limitation shall apply. See 74 FR 27730. The proposed rule explained that by removing the time limitation, all Federal nontax debts, including debts that were ineligible for collection by offset prior to the removal of the limitations period, may now be collected by tax refund offset.

Additionally, to avoid any undue hardship, Treasury proposed the addition of a notice requirement applicable to debts that were previously ineligible for collection by offset because they had been outstanding for more than ten years. For such debts, creditor agencies must certify to FMS that a notice of intent to offset was sent to the debtor after the debt became ten years delinquent. This notice of intent to offset is meant to alert the debtor that any debt the taxpayer owes to the United States may now be collected by offset, even if it is greater than ten years delinquent. It also allows the debtor additional opportunities to dispute the debt, enter into a repayment agreement or otherwise avoid offset. This requirement will apply even in a case where notice was sent prior to the debt becoming ten years old. This requirement applies only with respect to debts that were previously ineligible for collection by offset because of the previous time limitation. Accordingly, it does not apply with respect to debts that could be collected by offset without regard to any time limitation prior to this regulatory change—for example, Department of Education student loan debts.

FMS published a Notice of Proposed Rulemaking with request for comments on June 11, 2009 at 74 FR 27730. Accordingly, FMS is issuing this Final Rule after a review of the comments received.

FMS received two comments on the proposed rule. One commenter expressed general support for the rule.

The second commenter questioned whether the rule should be promulgated if the rule extended the time limitation on the collection of debts owed to entities receiving Federal financial relief in times of economic crisis. The commenter expressed concern that such a rule would have a larger negative impact on the economy than indicated in the notice of proposed rulemaking. This rule, however, only applies to the collection of nontax debts owed to the United States. It does not apply to debts owed to private entities receiving Federal assistance. Therefore, this rule will not have the effect anticipated by the commenter.

FMS did not make any changes to the proposed rule based on the comments received.

FMS has determined that good cause exists to make this final rule effective upon publication without providing the 30-day period between publication and the effective date contemplated by 5 U.S.C. 553(d). The purpose of a delayed effective date is to afford persons affected by a rule a reasonable time to prepare for compliance. Treasury has been collecting delinquent Federal nontax through tax refund offset since 1986. This final rule only provides guidance that is expected to facilitate Federal agencies' participation in the tax refund offset program with respect to debts that were outstanding more than ten years prior to the effective date of this rule. Therefore, FMS believes that good cause exists, and that it is in the public interest, to make this final rule effective upon publication.

The rule does not meet the criteria for a “significant regulatory action” as defined in Executive Order 12866. Therefore, the regulatory review procedures contained therein do not apply.

It is hereby certified that the rule will not have a significant economic impact on a substantial number of small entities. The rule only affects the time that a delinquent nontax debt may be collected. Accordingly, a regulatory flexibility analysis under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) is not required.

Section 202 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532 (Unfunded Mandates Act), requires that the agency prepare a budgetary impact statement before promulgating any rule likely to result in a Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. If a budgetary impact statement is required, section 205 of the Unfunded Mandates Act also requires the agency to identify and consider a reasonable number of regulatory alternatives before promulgating the rule. We have determined that the rule will not result in expenditures by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. Accordingly, we have not prepared a budgetary impact statement or specifically addressed any regulatory alternatives.

In the Federal Register final rule published October 27, 2009 (74 FR 55140-42), the Postal Service provided notice of new Move Update assessment charges to be applied during the acceptance process. On November 25, 2009, the Postal Regulatory Commission (PRC) issued Order No. 348 on Move Update, which modified the Postal Service's requested Mail Classification Schedule (MCS) language filed on October 15, 2009. A change of address error tolerance of 30 percent was added to the MCS language, for determining whether a mailing fails the Move Update portion of the Performance-Based Verification (PBV) test.

The Commission retained language about a $0.07 Move Update noncompliance charge for Standard Mail ®, and stated that this charge, rather than the difference between postage paid and the First-Class Mail ® single-piece price, would apply when Standard Mail mailers do not comply with the Move Update standard. The Commission's modifications affect the Move Update procedures published in the October 27, 2009 final rule. This change is effective January 4, 2010, and will be reflected in the next DMM update on February 1, 2010.

Following are a background summary and descriptions of the changes and procedures for how Move Update assessment charges will be handled at the time of acceptance.

Mailers who claim presorted or automation prices for First-Class Mail, or claim any Standard Mail prices, must identify on the postage statement which Move Update method was used to ensure that the mailing meets the Move Update standard. Additionally, on each postage statement, mailers or their agents, must also affix their signature and certify that the mailing presented for acceptance qualifies for the prices claimed. The Move Update standard requires that a mailer participate in an approved Move Update process, and use the change of address information received through the approved Move Update process, to correct the mailing addresses in the mailing. This has been a longstanding requirement for First-Class Mail presort and automation prices; however, prior to November 2008 the frequency with which a mailer was required to participate in the Move Update process and make the requisite address changes was within the 185 days immediately preceding the date of mailing. In November 2008 the frequency was reduced to the 95 days immediately preceding the date of mailing. The Move Update standard, including the 95 day frequency, was extended to include all Standard Mail in November 2008. If a mailer does not identify a Move Update method and certify compliance, then the Postal Service can reject the mailing, unless the mailer agrees to pay the First-Class Mail single-piece price.

The Move Update standard is designed to reduce the number of mailpieces that require forwarding, return, or disposal as waste, thus reducing Postal Service costs. The standard also helps to assure that mail reaches its intended recipients in a timely manner.

PBV procedures introduced in Spring 2009 allow the Postal Service to sample mailings during the acceptance process to compare mailpiece addresses within the sample against the change of address information in the National Change of Address (NCOA ®) database. For the Move Update portion of PBV, addresses on the verification sample are compared to the NCOA database. The ratio of the number of failed changes of address (COAs), addresses that should have been updated per Postal Service records, to the number of actual COAs (all changed addresses for addresses in the mailing) is calculated. If this ratio for the sample is sufficiently high, as detailed below, the mailing is subject to an additional postage charge, called the Move Update assessment charge. Mailers are offered the option of taking the mailing back and reworking it to avoid the Move Update assessment charge.

The Move Update standard is not new. All known mailings of commercial First-Class Mail pieces that did not follow address updating requirements have been subject to single-piece First-Class Mail prices for each piece in the mailing since 1997. When the Move Update standard was first applied to Standard Mail in 2008, the same consequence would have applied to Standard Mail mailings when addresses were found not to have been updated. This would have meant a substantial increase in postage for Standard Mail mailings. To mitigate this effect, the Postal Service announced in 2008 that it would charge $0.07 per piece for all pieces in Standard Mail mailings which fail the Move Update PBV test. In addition, in its October 15, 2009 Notice filed with the Postal Regulatory Commission after extensive consultation with mailers, the Postal Service announced that the $0.07 charge would apply to a portion of a mailing that fails the Move Update PBV test, and that samples with five or fewer pieces that were not updated for a COA would not be subject to the assessment, regardless of the error rate.

A provision for multi-client mailings is also included for the first year after implementation: a mailer submitting a combined multi-client mailing that fails the Move Update verification may have additional postage attributed to individual clients, given certain conditions described in detail on the ribbs.usps.gov website. If the conditions are met, the Move Update Assessment Charge of $0.07 could apply to a different number of pieces, thus affecting the overall assessment charge for the mailing.

The Move Update assessment charge was originally intended for May 2009 implementation. However, in response to customer concerns, we deferred implementation until January 4, 2010, as announced in the April 6, 2009 Federal Register final rule notice. The Postal Service also decided to apply a $0.07 per piece additional postage charge for First-Class Mail pieces found in mailings with a Move Update error rate of greater than 30 percent based on Postal Service PBV samplings at acceptance, with the five-piece exception discussed above.

The PBV process does not establish compliance or noncompliance with the Move Update standard; it is a tool that the Postal Service uses to test mailings. It is designed to facilitate the acceptance of mail in the event that the PBV Move Update process determines that a sample of the mailing has failed above a given tolerance. Mailers who believe the Move Update assessment charge was applied to their mailing(s) in error may appeal to the Pricing and Classification Service Center.

The percentage of a mailing paying the additional charge is based on the percentage of failed sample pieces above the tolerance. Each assessed piece pays an additional $0.07. As examples, with a tolerance of 30 percent exempted from the charge:

• If 40% of COAs sampled are not updated, the charge is applied to 10% (= 40% − 30%) of the total mailing.

• If 80% of COAs sampled are not updated, the charge is applied to 50% (= 80% − 30%) of the total mailing.

The following Domestic Mail Manual (DMM®) changes vary from the changes published in the October 27, 2009 Federal Register final rule. The application of the Move Update assessment charge is described directly, rather than by reference to the RIBBS Web site. The application of the Move Update noncompliance charge to a failure to comply with the Move Update standard would be determined outside of the PBV test at acceptance. Information about the noncompliance charge will be provided separately.

The Postal Service adopts the following changes to Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM), incorporated by reference in the Code of Federal Regulations. See 39 CFR 111.1.

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

Indiana requested a revision to its SIP that would add both 326 Indiana Administrative Code (IAC) 3-5-1, continuous emissions monitoring requirements, and an alternative monitoring plan contained in a Commissioner's Order for a Warrick County source. Indiana submitted its request on April 25, 2008.

More specifically, Indiana has requested that EPA approve as a SIP revision the continuous emissions monitoring requirements in 326 IAC 3-5-1. Section 1(b) of that regulation addresses the applicability of these requirements. The rule lists sources that must use continuous monitoring and what pollutants those sources must monitor. There is a provision in the rule, 326 IAC 3-5-1(c)(2)(A)(iii), which allows fossil fuel-fired steam generators that are required to monitor opacity emissions to monitor PM instead. The alternate monitoring requirement is allowed when condensed water vapor in the exhaust would not provide accurate determinations of emissions as a result of interference from condensed uncombined water vapor. The alternate monitoring plan is not effective until approved by EPA as a SIP revision. See 326 IAC 3-5-1(c)(2)(A)(iv).

Under this mechanism, Indiana has requested approval of an alternate monitoring plan for Alcoa Power Generating, Inc.-Alcoa Warrick Power Plant (Alcoa) in Warrick County. Indiana adopted the alternate monitoring plan on February 11, 2008, in Commissioner's Order #2008-01. This facility has installed a scrubber control device. The scrubber will add moisture to its exhaust which condenses as the stream cools. The condensation may cause unreliable readings from a COMS. A COMS measures opacity optically, so it cannot distinguish between light impairment caused by particulate and that caused by moisture. As the scrubber removes particulate, placing the COMS prior to the exhaust entering the scrubber could also incorrectly measure Alcoa's emissions.

Alcoa has requested that it be permitted to use alternative monitoring, as provided under 326 IAC 5-3-1(c)(2)(A)(iii). It will use a PM CEMS in place of the COMS. The PM CEMS is placed after the scrubber to measure the PM emissions emitted from the Alcoa facility. Proper calibration should allow the PM CEMS to provide accurate readings, even with moisture from the scrubber in the exhaust stream. The PM CEMS readings will be used to determine whether Alcoa is in compliance with its PM emission limits.

The addition of 326 IAC 3-5-1 enhances Indiana's SIP because these continuous emission monitoring requirements are now applicable to a number of sources. This includes several source types meeting a size requirement (e.g., fossil fuel-fired steam generators of greater than one hundred million British thermal units per hour heat input capacity). They also apply to facilities in Clark and Floyd Counties with the potential to emit at least 40 tons of nitrogen oxides (NOX) per year that are located at sources with the potential to emit 100 tons per year or more of NOX. Continuous monitoring is required on fossil-fired power plants, sulfuric acid plants, petroleum refineries, Portland cement plants, sewage sludge combustion facilities, and sources producing coke that meet the conditions in the rule. Section 1(c) of the rule specifies which pollutants each source type is to monitor. The continuous monitoring rules include the requirements for alternative monitoring provisions. EPA approval of the alternative monitoring plan is required by 326 IAC 5-3-1(c)(2)(A)(iv).

In the alternative monitoring plan approved by Indiana in Commissioner's Order #2008-01, Alcoa will monitor PM emissions in place of opacity. The visible emissions exiting the stack are primarily composed of PM. Visible emissions observations under 40 CFR part 60, appendix A, Method 9 are taken in the atmosphere after any moisture has condensed and left the plume. The COM at Alcoa, however, reads the opacity in the stack. The addition of a scrubber will remove pollutants from the exhaust, but will add moisture. This moisture condenses as the exhaust cools in the stack. This creates a higher opacity reading from the COM. Installing the COM to read the opacity before the scrubber would not give an accurate measurement of the facility's emissions because the COM would not reflect any emission reductions from the scrubber.

PM in the plume causes opacity, so PM and opacity readings can be used as reasonable substitutes for each other. The PM CEMS will be calibrated to provide accurate measurements even with moisture in the stack. The PM CEMS provides the particulate emissions from the facility. Knowing the emissions from the facility, Alcoa will be able to make adjustments or control device repairs should the emissions rise too high. This facility will average the PM CEMS data at time intervals specified in its permits. Alcoa is also required to monitor other pollutants and their operating parameters. Opacity should remain at acceptable levels if PM and the other pollutants remain in compliance of their standards. The alternate monitoring requirement removes the need to operate the COMS, but does not remove the opacity limits at the facility. Visible emissions observations in accordance with method 9 can still be made to confirm that the applicable opacity limits are being met.

PM interferes with lung function when inhaled. Exposure to PM can cause heart and lung disease. Particulate matter also aggravates asthma. Airborne particulate is the main source of haze that causes a reduction in visibility. It also is deposited on the ground and in the water. This harms the environment by changing the nutrient and chemical balance.

This action only changes the monitoring requirements for Alcoa. All of the SIP emission limits remain in place.

EPA is approving the addition of 326 IAC 3-5-1, continuous emissions monitoring requirements, and an alternative monitoring request in Indiana Commissioner's Order #2008-01 for a Warrick County source, Alcoa Power Generating, Inc. The rule adds continuous monitoring requirements to specified source types. Alcoa will operate a PM CEMS instead of a COMS. This is acceptable because moisture in the facility's exhaust stream could cause inaccurate opacity readings from a COMS. The continuous monitoring of particulate emissions is a reasonable substitute for continuous opacity monitoring in this case.

We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the state plan if relevant adverse written comments are filed. This rule will be effective February 26, 2010 without further notice unless we receive relevant adverse written comments by January 27, 2010. If we receive such comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will then be addressed in a subsequent final rule based on the proposed action. The EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. If we do not receive any comments, this action will be effective February 26, 2010.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 26, 2010. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

The Commission released a document on December 3, 2009, announcing the new filing location for paper documents effective December 28, 2009. The Commission's contractor will begin receiving hand-delivered and/or messenger-delivered paper filings for the Commission's Secretary at the FCC Headquarters building located at 445 12th Street, SW., Room TW-A325, Washington, DC 20554.

• The filing hours will be Monday through Friday, 8 a.m. to 7 p.m.

• This is the ONLY location where hand-delivered or messenger-delivered paper filings for the Commission's Secretary will be accepted. Accordingly, the Commission will close the filing location at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002.

• Originals and copies of each official filing must continue to be held together with rubber bands or fasteners. And as usual, “stamp and return” copies will be provided as long as they accompany each individual filing. ALL FILINGS MUST BE SUBMITTED WITHOUT ENVELOPES. See http://www.fcc.gov/osec/ for further information on filing instructions.

• Documents intended to be received by specific staff members within the Bureaus and Offices must be clearly labeled on the first page of the document or with a cover sheet indicating the destination. As appropriate, originals and copies should be held together with rubber bands or fasteners.

• Documents sent by overnight mail (other than United States Postal Service (USPS) Express Mail) must be addressed to 9300 East Hampton Drive, Capitol Heights, MD 20743.

• All USPS First Class Mail, Express Mail and Priority Mail should continue to be addressed to FCC Headquarters at 445 12th Street, SW., Washington, DC 20554. See http://www.fcc.gov/osec/guidelines.html for further instruction on FCC filing addresses.

As the Commission continues to balance its efforts to be accessible to its customers with the need for heightened security measures, we encourage our customers to take full advantage of the Commission's Electronic Comment Filing System to facilitate the filing of applicable documents.

This amendment is made pursuant to § 0.231(b) of the Commission's rules, 47 CFR 0231. The Federal Communications Commission considers the rule amendments as a matter of agency practice and procedure; therefore, compliance with the notice and comment and effective date provision of the Administrative Procedure Act is not required. Therefore, the Commission will not send a copy of this final rule pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).