The final regulation that is the subject of this correction was intended to convert the pecan revenue pilot crop insurance program to a permanent crop insurance regulation to be used in conjunction with the Common Crop Insurance Policy Basic Provisions for ease of use and consistency of terms.

As published, the final regulation contained errors which may prove to be misleading and need to be clarified. In section 3 of the crop provisions, paragraph (g) did not specify the percentage amount that is considered as “additional coverage.”

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

Pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the collections of information in this rule have been approved by OMB under control number 0563-0053 through February 28, 2005.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. This rule contains no Federal mandates (under the regulatory provisions of title II of the UMRA) for State, local, and tribal governments or the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA.

It has been determined under section 1(a) of Executive Order 13132, Federalism, that this rule does not have sufficient implications to warrant consultation with the States. The provisions contained in this rule will not have a substantial direct effect on States, or on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

FCIC certifies that this regulation will not have a significant economic impact on a substantial number of small entities. Program requirements for the Federal crop insurance program are the same for all producers regardless of the size of their farming operation. For instance, all producers are required to submit an application and acreage report to establish their insurance guarantees and compute premium amounts, or a notice of loss and production information to determine an indemnity payment in the event of an insured cause of crop loss. Whether a producer has 10 acres or 1000 acres, there is no difference in the kind of information collected. To ensure crop insurance is available to small entities, the Federal Crop Insurance Act authorizes FCIC to waive collection of administrative fees from limited resource farmers. FCIC believes this waiver helps to ensure small entities are given the same opportunities to manage their risks through the use of crop insurance. A Regulatory Flexibility Analysis has not been prepared since this regulation does not have an impact on small entities, and, therefore, this regulation is exempt from the provisions of the Regulatory Flexibility Act (5 U.S.C. 605).

This program is listed in the Catalog of Federal Domestic Assistance under No. 10.450.

This program is not subject to the provisions of Executive Order 12372, which require intergovernmental consultation with State and local officials. See the Notice related to 7 CFR part 3015, subpart V, published at 48 FR 29115, June 24, 1983.

This rule has been reviewed in accordance with Executive Order 12988 on civil justice reform. The provisions of this rule will not have a retroactive effect. The provisions of this rule will preempt State and local laws to the extent such State and local laws are inconsistent herewith. With respect to any direct action taken by FCIC under the terms of the crop insurance policy, the administrative appeal provisions published at 7 CFR part 11 and 7 CFR part 400, subpart J for the informal administrative review process of good farming practices, as applicable, must be exhausted before any action for judicial review of any determination or action by FCIC may be brought.

This action is not expected to have a significant impact on the quality of the human environment, health, and safety. Therefore, neither an Environmental Assessment nor an Environmental Impact Statement is needed.

On May 17, 2004, FCIC published a notice of proposed rulemaking in the Federal Register at 69 FR 27864-27865 to revise 7 CFR 457.134 Peanut Crop Insurance Provisions. Following publication of the proposed rule, the public was afforded 30 days to submit written comments and opinions. Comments were received from reinsured companies, agents, trade associations, producers, and insurance service organization and other interested parties. The comments received and FCIC's responses are as follows:

Comment: A total of 30 commenters recommended that FCIC should allow optional units for peanuts to be established in accordance with section 34 of the Common Crop Insurance Policy Basic Provisions (Basic Provisions).

Response: FCIC agrees and has made the change accordingly.

Comment: An insurance service organization suggested that actual production history (APH) procedures should be revised in accordance with how existing units by farm serial number (FSN) can be converted to a section or section equivalent basis, in areas where that is appropriate. The commenter asks if peanut databases that still contain the “F” classification yield from the APH conversion process will be allowed to retain the yield in the new section databases that were part of the FSN for which that classification was established.

Response: FCIC revised the APH procedures in the Crop Insurance Handbook (CIH) effective for the 2003 crop year when peanuts were converted to a Category B APH crop. Classification “F” yields that were used to establish approved APH yields were removed by adding an actual or assigned yield to the affected databases for the 2003 crop year. In subsequent crop years, this process will continue until all classification yields in the database have been replaced by actual or assigned yields. Databases will be updated using acceptable production records under standard APH procedures.

Comment: An insurance service organization commented to the proposed rule that to allow optional units for peanuts in accordance with the Basic Provisions would not result in imposing optional units by section in parts of the country, such as some southeastern States. The southeastern States have optional units by FSN for other Category B crops. In those areas, the proposed rule would allow optional units by irrigated and non-irrigated practices as well as by FSN.

Response: FCIC agrees that in those states without sections, optional units will be by FSN or irrigated and non-irrigated practices.

Comment: An insurance service organization asked if FCIC has any estimates by State on how the number of optional units are affected so rates can be adjusted accordingly.

Response: An analysis of the number of potential optional units that may be generated by the proposed rule change was completed. FCIC will apply the rate surcharge for optional units as administered for other Category B crops in the applicable States. A study is being conducted regarding the premium rates for optional units to determine the appropriate rates and such rates will be applied to peanuts.

Comment: A total of 30 comments supported modifying the Peanut Crop Provisions to provide for a price election for peanuts based on a contract price for those peanuts that are grown under contract. However, an insurance service organization opposed insuring peanuts at a contract price election. The insurance service organization comment indicated many years ago a contract price was used to establish the price election for non-quota peanuts. Those contracts did not enforce delivery, which then resulted in some buying points being too generous. Peanuts do not have to be grown under contract to be insured. Allowing for a contract price would in effect establish two prices for peanuts similar to the quota/non-quota system. The pounds per acre grown under contract would have one price and those that are not grown under contract would default to the price established in the actuarial documents. Other insured crops such as corn, soybeans, and wheat can also be contracted at set prices without this type of price option available.

Response: FCIC only requested public comment regarding the feasibility and possible approaches for insuring peanuts at a contract price. FCIC will consider all the comments when it looks at the feasibility of allowing a price election by contract price. However, until such evaluation is complete, no changes will be made to the Peanut Crop Provisions.

This rule is issued under Marketing Agreement and Order No. 984, both as amended (7 CFR part 984), regulating the handling of walnuts grown in California, hereinafter referred to as the “order.” The marketing agreement and order are effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, California walnut handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as issued herein will be applicable to all assessable walnuts beginning on August 1, 2004, and continue until amended, suspended, or terminated. This rule will not preempt any State or local laws, or policies, unless they present an irreconcilable conflict with this rule.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This rule decreases the assessment rate established for the Board for the 2004-05 and subsequent marketing years from $0.0101 to $0.0094 per kernelweight pound of assessable walnuts.

The order provides authority for the Board, with the approval of the USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Board are producers and handlers of California walnuts. They are familiar with the Board's needs and with the costs for goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.

For the 2003-04 and subsequent marketing years, the Board recommended, and USDA approved, an assessment rate of $0.0101 per kernelweight pound of assessable walnuts that would continue in effect from year to year unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Board or other information available to USDA.

The Board met on September 10, 2004, and unanimously recommended 2004-05 expenditures of $2,749,500 and an assessment rate of $0.0094 per kernelweight pound of assessable walnuts. In comparison, last year's budgeted expenditures were $2,863,350. The assessment rate of $0.0094 is $0.0007 lower than the $0.0101 rate currently in effect. The lower assessment rate is necessary because this year's crop is estimated by the California Agricultural Statistics Service (CASS) to be 325,000 tons (292,500,000 kernelweight pounds merchantable), and the budget is about 4 percent less than last year's budget. Sufficient income should be generated at the lower rate for the Board to meet its anticipated expenses.

Major categories in the budget recommended by the Board for 2004-05 include $2,037,500 for research and marketing programs ($1,393,500 for market research and development, $550,000 for production research, and $94,000 to the California Agricultural Statistics Service for a crop estimate), $332,000 for employee expenses (administrative and office salaries, payroll taxes, workers compensation, and other employee benefits), $97,000 for office expenses (rent, office supplies, telephone, fax, postage, printing, equipment maintenance, and furniture), $96,000 for other operating expenses (management travel, field travel, insurance, and financial audits), $5,000 for controlled (compliance check) purchases, $75,000 for a production research director, and $107,000 as a reserve for contingency. Budgeted expenses for these items in 2003-04 were $2,438,000, $334,625, $83,000, $82,000, $5,000, $73,000, and $15,725, respectively.

The assessment rate recommended by the Board was derived by dividing anticipated expenses by expected shipments of California walnuts certified as merchantable. Merchantable shipments for the year are estimated at 292,500,000 kernelweight pounds which should provide $2,749,500 in assessment income and allow the Board to cover its expenses. Unexpended funds may be used temporarily to defray expenses of the subsequent marketing year, but must be made available to the handlers from whom collected within 5 months after the end of the year, according to § 984.69.

The assessment rate established in this rule will continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and other information submitted by the Board or other available information.

Although this assessment rate is effective for an indefinite period, the Board will continue to meet prior to or during each marketing year to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Board meetings are available from the Board or USDA. Board meetings are open to the public and interested persons may express their views at these meetings. USDA will evaluate Board recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The Board's 2004-05 budget and those for subsequent marketing years will be reviewed and, as appropriate, approved by USDA.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.

There are approximately 5,800 producers of walnuts in the production area and about 43 handlers subject to regulation under the order. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those having annual receipts of less than $5,000,000.

Current industry information shows that 14 of the 43 handlers (32.5 percent) shipped over $5,000,000 of merchantable walnuts and could be considered large handlers by the Small Business Administration. Twenty-nine of the 43 walnut handlers (67.5 percent) shipped under $5,000,000 of merchantable walnuts and could be considered small handlers. An estimated 58 walnut producers, or about 1 percent of the 5,800 total producers, would be considered large producers with annual incomes over $750,000. Based on the foregoing, it can be concluded that the majority of California walnut handlers and producers may be classified as small entities.

This rule decreases the assessment rate established for the Board and collected from handlers for the 2004-05 and subsequent marketing years from $0.0101 to $0.0094 per kernelweight pound of assessable walnuts. The Board unanimously recommended 2004-05 expenditures of $2,749,500. The decreased assessment rate should generate sufficient income to meet the Board's 2004-05 anticipated expenses. The lower assessment rate is primarily due to a lower budget and based on an estimated crop of 325,000 tons for the year (292,500,000 kernelweight pounds estimated merchantable).

Major categories in the budget recommended by the Board for 2004-05 include $2,037,500 for research and marketing programs ($1,393,500 for market research and development, $550,000 for production research, and $94,000 to the California Agricultural Statistics Service for a crop estimate), $332,000 for employee expenses (administrative and office salaries, payroll taxes, workers compensation, and other employees benefits), $97,000 for office expenses (rent, office supplies, telephone, fax, postage, printing, equipment maintenance, and furniture), $96,000 for other operating expenses (management travel, field travel, Board expenses, insurance, and financial audits), $5,000 for controlled (compliance check) purchases, $75,000 for a production research director, and $107,000 as a reserve for contingency. Budgeted expenses for these items in 2003-04 were $2,438,000, $334,625, $83,000, $82,000, $5,000, $73,000, and $15,725, respectively.

Prior to arriving at this budget, the Board considered information from various sources, such as the Board's Budget and Personnel Committee, Research Committee, and Marketing Development Committee. Alternative expenditure levels were discussed by these groups based upon the relative value of various research projects to the walnut industry. The recommended $0.0094 per kernelweight pound assessment rate was then determined by dividing the total recommended budget by the 292,500,000 kernelweight pound estimate of assessable walnuts for the year. Unexpended funds may be used temporarily to defray expenses of the subsequent marketing year, but must be made available to the handlers from whom collected within 5 months after the end of the year according to § 984.69.

A review of historical information and preliminary information pertaining to the current marketing year indicates that the grower price for 2004-05 could range between $0.50 and $0.70 per kernelweight pound of assessable walnuts. Therefore, the estimated assessment revenue for the 2004-05 marketing year as a percentage of total grower revenue could range between 1.3 and 1.9 percent.

This action decreases the assessment obligation imposed on handlers. Assessments are applied uniformly on all handlers, and some of the costs may be passed on to producers. However, decreasing the assessment rate reduces the burden on handlers, and may reduce the burden on producers. In addition, the Board's meeting was widely publicized throughout the walnut industry and all interested persons were invited to attend the meeting and participate in Board deliberations on all issues. Like all Board meetings, the September 10, 2004, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses.

This action imposes no additional reporting or recordkeeping requirements on either small or large California walnut handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/fv/moab.html. Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

After consideration of all relevant material presented, including the information and recommendation submitted by the Board and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect, and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) The 2004-05 marketing year began on August 1, 2004, and the order requires that the rate of assessment for each marketing year apply to all merchantable walnuts handled during the year; (2) this action decreases the assessment rate for merchantable California walnuts; (3) handlers are aware of this action which was unanimously recommended by the Board at a public meeting and is similar to other assessment rate actions issued in past years; and (4) this interim final rule provides a 60-day comment period, and all comments timely received will be considered prior to finalization of this rule.

This rule has been determined to be significant for purposes of Executive Order 12866 and, therefore, has been reviewed by the Office of Management and Budget (OMB).

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

In accordance with the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), the Administrator of RUS certifies that this rule will not have significant impact on a substantial number of small entities. No small entities meet the statutory criteria for participation in the program that is the subject of this rulemaking.

This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on distribution of power and responsibilities among the various levels of government. Under Executive Order 13132, this rule does not have sufficient federalism implications to require preparation of a Federalism Assessment.

Under the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ) (the “Act”), OMB must approve all “collection of information” as a requirement for “answers to * * * identical reporting or recordkeeping requirements imposed on ten or more persons * * *.” (44 U.S.C. 3502(3)(A).) RUS has concluded that the reporting requirements contained in this rule will involve less than 10 persons and do not require approval under the provisions of the Act.

The program described by this rule is listed in the Catalog of Federal Domestic Assistance Programs under No. 10.850, Rural Electrification Loans and Loan Guarantees. This catalog is available on a subscription basis from the Superintendent of Documents, the United States Government Printing Office, Washington, DC 20402. Telephone: (202) 512-1800.

This rule is excluded from the scope of Executive Order 12372, Intergovernmental Consultation, which may require consultation with State and local officials. See the final rule related notice entitled “Department Programs and Activities Excluded from Executive Order 12372,” (50 FR 47034).

This rule contains no Federal mandates (under the regulatory provision of title II of the Unfunded Mandates Reform Act of 1995) (Pub. L. 104-4, 109—Stat. 48) for State, local, and tribal governments or the private sector. Thus, this rule is not subject to the requirements of sections 202 and 205 of the Unfunded Mandates Reform Act of 1995.

RUS has determined that this rule will not significantly affect the quality of the human environment as defined by the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ) Therefore, this action does not require an environmental impact statement or assessment.

On December 30, 2003, at 68 FR 75153, the Rural Utilities Service (RUS) published a proposed rule, 7 CFR Part 1720, Guarantees for Bonds and Notes issued for Electrification and Telephone Purposes. This proposed rule establishes the agency's policies and procedures for granting guarantees to eligible cooperatives and other not-for-profit lenders that make loans eligible for assistance under the Rural Electrification Act of 1936 (the RE Act). The Farm Security and Rural Investment Act of 2002 (Pub. L. 107-171), amended the RE Act, by adding section 313A which establishes this program.

A total of 231 letters were received commenting on the proposed rule. Two hundred and eighteen of these letters, which were received from electric cooperatives, electric cooperative associations, rural development organizations, and local governments, all requested that the rule be altered in a way that assures funding to the Rural Economic Development Loan and Grant Fund (REDLF). Many of the comments included the identification of successful economic development projects that benefited from REDLG funds. The majority of the 218 letters identified specific aspects of the proposed rule that should be altered to make the program work. Seventy percent (70%) of the letters said the patronage capital limitations discriminate against the cooperative lenders and should be removed. Seventy percent (70%) also reported that the Federal Institutions Reform, Recovery and Enforcement Act (FIRREA) requirements, as presented in the proposed rule would make cooperative lenders ineligible for this program. Sixty-five percent (65%) requested that the 15-year bond term limit be changed to the useful life of the asset. This change in term would serve to maximize funding available to REDLG. Fifteen percent (15%) of the letters suggested that the approval process that includes Office of Management and Budget and Treasury, is complicated and inefficient and 10 percent or less critized using a bankruptcy trust fund, collateral provisions, and the requirement that bonds must be issued by Federal Financing Bank (FFB) only.

Thirteen letters were received that did not take the form of the others and either addressed the specific questions posed in the proposed rule or provided additional information for the development of the final rule.

In their comment letters, the U.S. Chamber of Commerce and Edison Electric Institute (EEI) state that Federal guarantees made to private unregulated organizations is unprecedented and bad government policy. Their position is that because of the legislative requirement to establish this program, RUS must also establish appropriate safeguards that minimize risk to American taxpayers. Four trade organizations also supported strengthening the rule requirements and characterized the program as providing an unfair advantage to cooperatives. This unfair advantage would be realized, they argue, through lower rates received in borrowing from an eligible lender that received a guarantee or by receiving REDLG funds and establishing economic development projects that attract new loads into a cooperative territory. The comments received from these groups also identified specific aspects of the proposed rule that they thought should be strengthened in order to minimize taxpayer risk.

The National Rural Electric Cooperative Association (NRECA), National Rural Utilities Cooperative Finance Corporation (CFC), National Rural Telecommunications Cooperative, an electric cooperative association, and an electric cooperative all identified aspects of the proposed rule that they said did not comport to the Farm Security and Rural Investment Act of 2002 (Pub. L. 107-171) (Farm Bill) legislation establishing this program. The comments claim that the proposed rule does not address the intent of the Congress, which was to create a new funding mechanism for the REDLG program. These comments addressed specific restrictions in the proposed rule and requested that they be removed because they were not consistent with the statute and prevent the lender with the largest volume of concurrent loans from participating in the program.

The two general positions taken in the letters of comment received are (1) the program does not provide enough safeguards for the American taxpayer and the provisions in the proposed rule should be strengthened and (2) the intent of Congress is not carried out with the proposed rule and changes should be made to assure that the REDLG program is funded.

CFC also provided an alternative approach to the restrictions included in the proposed rule. The alternative approach is to establish such safeguards as contemplated in the proposed rule to minimize taxpayer risk by establishing a trigger that would impose them only if the lender that qualifies and is granted a guarantee becomes ineligible ( i.e., no longer meets the eligibility criteria established in the legislation). CFC proposed the trigger mechanism to be when the lender's non-guaranteed debt falls below investment grade. At that point, limitations on retiring patronage capital, establishing capital adequacy tests, requiring a bankruptcy remote trust and/or collateral requirements would go into effect.

A review of the limited legislative history that exists for this provision of the 2002 Farm Bill indicates that the intent of Congress was to establish an additional private funding mechanism for the Rural Economic Development Loan and Grant program. This flow of funds is the cost to qualified lenders for receiving a federal guarantee of bonds and notes according to the statutory criteria established in section 6101 of the Farm Bill.

RUS also agrees that appropriate safeguards must be implemented to assure risk is minimized for the American taxpayers as this program establishes a new relationship between eligible lenders and the Federal government. Furthermore, Congress has established this program by amending the RE Act, and fully expects RUS to continue its prudent guarantee and lending practices. For these reasons, RUS will provide additional requirements of the lender beyond the provisions established in section 6101 of the Farm Bill. Based upon the comments received and additional research into the requirements proposed, the final rule has been modified to maintain the safeguards envisioned in the proposed rule while establishing a program according to the provisions of section 6101 of the Farm Bill.

The statute provides some criteria for establishing lender and guarantee eligibility. The statute, however, does not address requirements to ensure the security of a government guarantee, and there is no indication that RUS should not take prudent steps to address declining credit quality. For these reasons, RUS will establish requirements of the guaranteed lender to ensure the security of the government's guarantee throughout the term of the guarantee.

Patronage Capital limitations. The proposed rule requires that the guaranteed lender not issue cash patronage refunds in excess of five percent of the total patronage refund eligible. Additionally, stock issued as part of the patronage refund shall not be redeemable in cash during the term of the guarantee, and the lender is not allowed to issue dividends on any class of stock during the term of the guarantee. Comments were received in favor of this restriction and some recommended lowering the limitation to two percent of the total patronage refund eligible. Comments were also received reporting that this limitation was not contemplated by the statute, and there is no rationale provided for this restriction. Furthermore, it is pointed out that capping patronage distributions reduces the cash flow of any RUS borrower that is also a borrower of the guaranteed lender and this reduction in cash flow may result in an increase in RUS loan security risk. One hundred and forty eight comments were received reporting that cooperatives depend upon the patronage capital distributions to keep electric rates low and to further invest in rural communities. One comment received expressed a belief that this restriction is unnecessary as capital markets already require financial targets for earnings retention.

RUS will maintain a patronage capital limitation when a guaranteed lender's credit rating on its senior secured debt, without regard to the guarantee, falls below “A−”. Under such a scenario, the guaranteed lender will be required to limit the patronage capital refunds in excess of five percent of the patronage capital. RUS believes this requirement represents a sound approach to ensuring capital adequacy and in minimizing the risk of default.

FIRREA. The proposed rule requires each applicant to submit a review and certification of the lender's capital adequacy utilizing the capital adequacy standards of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA). The proposed rule also requires that during the term of the guarantee, a FIRREA review be conducted annually. Comments were received requesting that the full requirements of FIRREA be imposed. Other comments claim the FIRREA requirements as presented in the proposed rule make cooperative lenders ineligible based upon their financial structure. Cooperative lenders have forms of equity not recognized by the formulas utilized under FIRREA. One hundred and fifty comment letters were received expressing a concern that the FIRREA standards do not apply to the cooperative structure and that such a requirement would make cooperatives ineligible for the guarantee program.

RUS agrees that the FIRREA requirement would limit participation in the guarantee program. Upon further review of the FIRREA requirements, and public comment, it has become clear that definitions of liabilities, capital, and risk-based assets under FIRREA do not match the financial structures and business model used by cooperative lenders and cannot directly apply. The majority of the savings institutions subject to the requirements of FIRREA do not have publicly traded debt outstanding, and have had no formal bond ratings assigned. Accordingly, the focus of the credit review for such entities is upon the regulatory accounting standards under which those lenders obtain deposit insurance.

The statutory requirements of this guarantee program rely upon credit evaluations by the rating agencies. Their ratings reflect the ability of the lender to meet its long-term payment obligations based upon the lender's financial positions, managerial skills and other factors. RUS has considered alternative methods of establishing capital adequacy of a guaranteed lender under this program and has evaluated the benefits of establishing financial indicator ratio requirements to accomplish that goal. Based upon the comments received and further review, RUS will rely upon the credit rating agencies and the ongoing review of a lender's financial position as required in other sections of the rule to evaluate adequacy and monitor the financial condition of the program participants.

In addition, RUS will independently monitor publicly available information on a program participant as it becomes available. RUS will use this information to monitor and evaluate the adequacy of the financial condition of program participants.

Bankruptcy Remote Trust. The proposed rule requires the lender, during the term of the guarantee, to establish a bankruptcy remote trust fund capitalized at five percent of the guaranteed amount outstanding. Comments received in favor of additional restrictions favor this requirement and a few suggested increasing the capitalized percentage. Comments were also received with claims that a lender whose securities are investment grade rated is already viewed by the capital markets as adequately capitalized, with sufficient reserves and capital market liquidity. Twenty-two comment letters were received reporting that this requirement was not contemplated in the Farm Bill and should not be implemented. CFC asserts that in capital markets, bankruptcy-remote trusts are used in non-recourse financing and that all CFC bonds are not non-recourse—any investor in CFC has the right to make a claim against CFC as a corporation.

Although a bankruptcy remote trust fund is a sound risk management tool in many situations, RUS believes that other requirements of this rule are sufficient to ensure the security of the government guarantee, and therefore this particular requirement has been removed.

Collateral Requirements. The proposed rule requires the applicant to provide a description of the specific and identifiable loans comprising the collateral or other pledge securing the guaranteed bonds. While comments were received in support for this idea claiming that this would aid in minimizing taxpayer risk, other comments were received requesting that no such requirement be imposed as it is outside of the statutory criteria. CFC asserts that a collateral requirement is duplicative of the bankruptcy-remote trust requirement.

RUS will maintain this requirement when the guaranteed lender's credit rating on its senior secured debt, without regard to the guarantee, falls below “A−”. In such cases, collateral shall be in the form of specific and identifiable unpledged securities equal to 100% of the value of the guarantee. This requirement is viewed as an important safeguard for protecting against a call on the Federal guarantee when the lender's creditworthiness has declined.

15-year bond term. The proposed rule requires a final maturity of guaranteed bonds not to exceed 15 years. Some comment letters received claim this restriction will aid in minimizing taxpayer risk. Other comments urged RUS to continue its practice of matching terms to the useful life of an asset. One hundred and thirty-nine comment letters received urged the restriction to be lifted recognizing the normal RUS lending practice of 30-35 year terms and also stating that the longer terms would extend the funding to REDLG and maximize economic development benefits to rural America. CFC claims that the limitation on maturity of bonds is inconsistent with the intent of the statute. The limitation exposes the government to additional risks (bond term/borrowers loan maturity mismatch can create both interest rate and liquidity risk).

Based upon comment letters received and the desire to establish a bond or note guarantee term consistent with RUS lending practices, RUS will establish a term of 20 years which is the estimated average outstanding balance of concurrent loans currently eligible under this program.

FFB only funding source. The proposed rule requires that the guaranteed bonds must be issued to the FFB on terms and conditions consistent with the FFB lending policy. Nineteen comment letters were received expressing concern with this limitation. CFC argues that this is inconsistent with a provision in the statute providing that the guarantees “shall be fully assignable and transferable” indicating that they could be issued in the capital markets. The rule also does not require FFB to purchase the offering and it does not discuss the rates, terms, or options for the transaction between the lender and FFB. CFC requests that flexibility be provided to issue the bonds to FFB or in the capital market to maximize the benefit.

RUS understands the CFC argument that the “best deal” should be obtained in issuing a bond or not for a guarantee. Therefore, the final rule requires that the guaranteed bond or note be issued to FFB on terms and conditions consistent with comparable government-guaranteed bonds and satisfactory to the Secretary.

Approval requirements to include Office of Management and Budget (OMB) and U.S. Department of Treasury. The proposed rule requires an independent assessment of the application by OMB and FFB prior to a decision on the guarantee being made by the Secretary. Thirty-five (35) comments were received claiming that this is neither needed nor efficient. Other comments suggest that there is no statutory requirement for this process.

RUS is eliminating the requirement that FFB and OMB review the application. Instead, RUS is required to request that FFB review the credit rating of the bond or note to be issued. The expertise that FFB possesses will help to ensure the security of the government guarantee.

Comments received from the U.S. Chamber of Commerce and one individual suggest that the United States Department of Agriculture did not follow the appropriate procedures in promulgated the proposed rule. RUS has considered these comments and believes they are without merit. For example, RUS has complied with the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) by determining that because the procedures contained in the proposed rule apply to only two entities, neither of whom are small, the rule will have no significant impact on small businesses or other small entities. The use of the word “determine” in context in which it was used in the published notice that was signed by the head of the agency is synonymous with the word “certify” within means “to confirm formally as true.” Since RUS certifies that there is no substantial impact on a significant number of small entities, the balance of the comments received on the Regulatory Flexibility Act are inapposite and in any event have more to do with the effects of programs which section 313A funds and which were not the subject of the proposed rulemaking.

Commenters have not correctly applied National Environmental Protection Act (NEPA) implementation regulations of RUS. As authority for their proposition that the proposed rule was subject to a full environmental review involving the public, commenters cited 7 CFR 1794.3. That provision provides merely that the provisions of 7 CFR part 1794 apply to, inter alia, the issuance of new or revised rules. However, Title 7 part 1794 does not require environmental reviews or public participation in such reviews in all cases. The provisions of 7 CFR part 1794 identify and establish categories of actions for environmental review purposes. These categories range from actions that are categorically exempt to those normally requiring the development of an environmental impact statement. RUS regulations do not require the agency to publish a Finding of No Significant Impact (FONSI) each time RUS determines that an action will not have a significant environmental impact. RUS regulations require the publication of a FONSI only when its determination has been made on the basis of an Environmental Assessment (EA). Generally speaking, publications of regulations do not require an EA. It is only the issuance or modification of RUS regulations concerning environmental matters that are listed in 7 CFR part 1794 as normally requiring an EA (7 CFR 1794.23(a)). Accordingly, the discussion of NEPA in the proposed rule complied with NEPA and RUS regulations implementing NEPA.

RUS was not, as some commenters wrote, required to prepare a Statement of Energy Effects to comply with Executive Order (E.O. 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use”. However, E.O. 13211 does not require the preparation of such statements in connection with every proposed rulemaking that is a significant regulatory action under E.O. 12866 as the commenters seem to imply. while it is correct that in order for a proposed rule to be a “significant energy action” under E.O. 13211, the proposal must be a “significant regulatory action” under Executive Order 12866, at least one of two other requirements must be met before the obligation to prepare a statement of energy effects exists. The propose rule must either be “likely to have significant adverse effect on the supply, distribution, or use of energy” or it must be so “designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action.” E.O. 13211 sections 2(a) and 4(b). Neither of these two factors are present here. Since E.O. 13211 does not apply to the proposed rule, there is no need to address comments about what such an analysis should provide.

Some commenters wrote that the proposed rule did not meet the requirement under Executive Order 12866, “Regulatory Planning and Review”, requiring all “significant regulatory actions” by Federal agencies to undergo cost-benefit assessment by the agency and centralized review by the Office of Information and Regulatory Affairs (OIRA), an organizational subunit of the OMB. RUS did conduct the appropriate regulatory analysis required for issuing the proposed rule to establish this Guarantee of Bonds and Notes program. RUS has provided the appropriate studies and justifications to OIRA for centralized review and the necessary OMB clearances were obtained before publishing the proposed rule and this final rule in the Federal Register.

RUS received a few comments to the effect that RUS did not provide adequate opportunity for public participation during the development of the proposed rule and suggesting that the comment period for the proposed rule be extended. RUS believes that there has been ample opportunity for public participation and that any further delays in implementing the program cannot be justified. Section 313A amending the rural Electrification Act of 1936 (7 U.S.C. 940c-1) was signed into law on May 13, 2002. Pub. L. 107-171, Title VI, sec. 6101(a). There are directives in sec. 6101(b) of Pub. L. 107-171 requiring the promulgation of regulations within 180 days of enactment and to implement the program within 240 days. Accordingly, enactment of Section 313A gave notice that rules covering this subject matter would soon be forthcoming. Section 313A itself established many of the program requirements contained in the proposed rule and clearly signaled the principal areas that would be addressed by the program. RUS provided 60 days for comments on the proposed regulations. Perhaps the best evidence demonstrating the adequacy of the public's opportunity for participation in the proposed rulemaking is the fact that RUS received 231 written comments in response to the notice.

The FAA proposed to amend 14 CFR part 39 with an AD for certain EMBRAER Model EMB-135 and -145 series airplanes. The proposed AD was published in the Federal Register on July 13, 2004 (69 FR 41994), to require measuring the fillet radius dimension of the trunnion fitting webs of the wings; and reworking the fillet radius of the trunnion fitting web in order to increase the radius, doing related investigative actions, and doing applicable corrective action, if necessary.

We provided the public the opportunity to participate in the development of this AD. No comments have been submitted on the proposed AD or on the determination of the cost to the public.

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

This AD will affect about 60 airplanes of U.S. registry. The measurement will take about 2 work hours per airplane, at an average labor rate of $65 per work hour. Based on these figures, the estimated cost of the AD for U.S. operators is $7,800, or $130 per airplane.

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. See the ADDRESSES section for a location to examine the regulatory evaluation.

A proposal to amend 14 CFR part 39 to include an AD for the specified model helicopters was published in the Federal Register on July 29, 2004 (69 FR 45291). That action proposed to require replacing the control support bracket assembly, part number (P/N) 369N2608-11, on helicopters that have a yaw stability augmentation system (YSAS) installed, with an airworthy assembly, P/N 600N2608-1. The revised time limits are dependent upon the time the YSAS was initially installed. Also proposed was revising the applicable maintenance manual to state the reduced life limits.

The FAA has reviewed MD Helicopters, Inc. Service Bulletin No. SB600N-040, dated September 18, 2003, which describes the revised finite life for the control support bracket on certain serial-numbered helicopters, and replacing them upon reaching the revised life limit, or no later than November 30, 2005, whichever occurs first.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were received on the proposal or the FAA's determination of the cost to the public. The FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

The FAA estimates that this AD will affect 13 helicopters of U.S. registry. Replacing the control support bracket will take approximately 40 work hours per helicopter to accomplish at an average labor rate of $65 per work hour. Required parts will cost approximately $5,617 per helicopter. Based on these figures, the total estimated cost impact of this AD on U.S. operators is $106,821 to replace the control support bracket on each helicopter in the fleet.

The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this action (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. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the FAA, Office of the Regional Counsel, Southwest Region, 2601 Meacham Blvd., Room 663, Fort Worth, Texas.

History

On Monday, August 30, 2004, the FAA proposed to amend 14 CFR part 71 to modify Class D and Class E airspace at Prescott, AZ. (69 FR 52839). Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments objecting to the proposal were received. Class D airspace designations are published in paragraph 5000 and Class E surface area airspace designations are published in paragraph 6002 of FAA Order 7400.9M dated August 30, 2004, and effective September 16, 2004, which is incorporated by reference in 14 CFR 71.1. The Class D and Class E airspace designations listed in this document will be published subsequently in the Order.

This amendment to 14 CFR part 71 modifies Class D and Class E airspace at Prescott, AZ. 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 will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This amendment to 14 CFR part 71 modifies the Class E airspace area extending upward from 700 feet above the surface at Sedalia, MO. An examination of controlled airspace for Sedalia, MO revealed the Class E airspace area does not comply with airspace requirements for diverse departures from Sedalia Memorial Airport as set forth in FAA Order 7400.2E, Procedures for Handling Airspace Matters. The criteria in FAA Order 7400.2E for an aircraft to reach 1200 feet AGL, taking into consideration rising terrain, is based on a standard climb gradient of 200 feet per mile plus the distance from the airport reference point to the end of the outermost runway. Any fractional part of a mile is converted to the next higher tenth of a mile. Additionally, the examination revealed the description and dimensions of the south extension to the airspace area were not in compliance with FAA Orders 7400.2E and 8260.19C, Flight Procedures and Airspace and that the north extension is no longer required. This amendment expands the airspace area from a 6.7-mile radius to a 7.1-mile radius of Sedalia Memorial Airport, defines the south extension in relation to the Sedalia nondirectional radio beacon (NDB) and eliminates the north extension. These modifications provide controlled airspace of appropriate dimensions to protect aircraft departing from the executing SIAPs to Sedalia Memorial Airport and bring the legal descriptions of the Sedalia, MO Class E airspace area into compliance with FAA Orders 7400.2E and 8260.19C. This area will be depicted on appropriate aeronautical charts. Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9M, Airspace Designations and Reporting Points, dated August 30, 2004, and effective September 16, 2004, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

The FAA anticipates that this regulation will not result in adverse or negative comment and, therefore, is issuing it as a direct final rule. Previous actions of this nature have not been controversial and have not resulted in adverse comments or objections. Unless a written adverse or negative comment, or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the Federal Register indicating that no adverse or negative comments were received and confirming the date on which the final rule will become effective. If the FAA does receive, within the comment period, an adverse or negative comment, or written notice of intent to submit such a comment, a document withdrawing the direct final rule will be published in the Federal Register , and a notice of proposed rulemaking may be published with a new comment period.

Interested parties are invited to participate in this rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2004-19334/Airspace Docket No. 04-ACE-63.” The postcard will be date/time stamped and returned to the commenter.

The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

The FAA has determined that this regulation is noncontroversial and unlikely to result in adverse or negative comments. For the reasons discussed in the preamble, I certify that this regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, 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.

This amendment to 14 CFR 71 modifies the Class E airspace area extending upward from 700 feet above the surface at Hartington, NE. An examination of controlled airspace for Hartington, NE revealed the Class E airspace area does not comply with airspace requirements for diverse departures from Hartington Municipal Airport as set forth in FAA Order 7400.2E, Procedures for Handling Airspace Matters. The legal description of the Class E airspace area does not reflect the correct Hartington Municipal Airport ARP. The examination also revealed compliance with airspace requirements for diverse departures eliminates the need for an extension to the airspace area.

This action enlarges the Hartington, NE Class E airspace area extending upward from 700 feet above the surface from a 6.3-mile radius to an 8.6-mile radius of Hartington Municipal Airport. It eliminates the southeast extension, deletes reference to the Yankton very high frequency omni-directional range (VOR)/distance measuring equipment (DME) in the legal description and corrects the Hartington Municipal Airport ARP in the legal description. These modifications provide controlled airspace of appropriate dimensions to protect aircraft departing from and executing SIAPs to Hartington Municipal airport and bring the legal description of the Hartington, NE Class E airspace area into compliance with FAA Order 7400.2E. This area will be depicted on appropriate aeronautical charts. Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9M, Airspace Designations and Reporting Points, dated August 30, 2004, and effective September 16, 2004, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.n

The FAA anticipates that this regulation will not result in adverse or negative comment and, therefore, is issuing it as a direct final rule. Previous actions of this nature have not been controversial and have not resulted in adverse comments or objections. Unless a written adverse or negative comment or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the Federal Register indicating that no adverse or negative comments were received and confirming the date on which the final rule will become effective. If the FAA does receive, within the comment period, an adverse or negative comment, or written notice of intent to submit such a comment, a document withdrawing the direct final rule will be published in the Federal Register , and a notice of proposed rulemaking may be published with a new comment period.

Interested parties are invited to participate in this rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2004-19332/Airspace Docket No. 04-ACE-61.” The postcard will be date/time stamped and returned to the commenter.

The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

The FAA has determined that this regulation is noncontroversial and unlikely to result in adverse or negative comments. For the reasons discussed in the preamble, I certify that this regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, 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.

This amendment to 14 CFR 71 modifies the Class E airspace area extending upward from 700 feet above the surface at Harvard, NE. An examination of controlled airspace for Harvard, NE revealed that the Harvard State Airport ARP used in the legal description for this Class E airspace area is incorrect. The examination also revealed that the Class E airspace area extension is no longer required in order for the airspace area to comply with airspace requirements in FAA Orders 7400.2E, Procedures for Handling Airspace Matters and 8260.19C, Flight Procedures and Airspace.

This action corrects the Harvard State Airport ARP in the legal description, deletes the airspace extension and brings the legal description of the airspace area into compliance with FAA Orders 7400.2E and 8260.19C. This area will be depicted on appropriate aeronautical charts. Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9M, Airspace Designations and Reporting Points, dated August 30, 2004, and effective September 16, 2004, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

The FAA anticipates that this regulation will not result in adverse or negative comment and, therefore, is issuing it as a direct final rule. Previous actions of this nature have not been controversial and have not resulted in adverse comments or objections. Unless a written adverse or negative comment, or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the Federal Register indicating that no adverse or negative comments were received and confirming the date on which the final rule will become effective. If the FAA does receive, within the comment period, an adverse or negative comment, or written notice of intent to submit such a comment, a document withdrawing the direct final rule will be published in the Federal Register , and a notice of proposed rulemaking may be published with a new comment period.

Interested parties are invited to participate in this rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made:

“Comments to Docket No. FAA-2004-19331/Airspace Docket No. 04-ACE-60.” The postcard will be date/time stamped and returned to the commenter.

The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

The FAA has determined that this regulation is noncontroversial and unlikely to result in adverse or negative comments. For the reasons discussed in the preamble, I certify that this regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, 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.

On Tuesday, August 17, 2004, the FAA proposed to amend 14 CFR part 71 to establish Class E airspace at Napa, CA. (69 FR 51019). The proposal was to establish additional controlled airspace extending upward from 700 feet or more above the surface of the earth to enable Oakland Air Route Traffic Control Central to route aircraft along the Sausalito transition at 4000 feet above Mean Sea Level. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments objecting to the proposal were received. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9M dated August 30, 2004, and effective September 16, 2004, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

This amendment to 14 CFR part 71 establishes Class E airspace at Napa, CA to accommodate aircraft executing instrument flight procedures into Napa County 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 will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This amendment to 14 CFR 71 modifies the Class E airspace area designated as a surface area and the Class E airspace area extending upward from 700 feet above the surface at Hastings, NE. An examination of controlled airspace for Hastings, NE revealed that these Class E airspace areas do not comply with airspace requirements for diverse departures from Hastings Municipal Airport as set forth in FAA Order 7400.2E, Procedures for Handling Airspace Matters. The legal description of neither Class E airspace area reflects the correct Hastings Municipal Airport reference point (ARP). The examination also revealed the incorrect dimensions of extensions to the Class E airspace area designated as a surface area and the Class E airspace area extending upward from 700 feet above the surface.

The dimensions of the Hastings, NE Class E airspace area designated as a surface area are modified to accommodate all SIAPs serving the airport and to provide adequate controlled airspace for diverse departures. The radius of this airspace area is increased from 4.1 to 4.7 miles. The southeast extension to the airspace area is defined in relation to the Hastings very high frequency omni-directional range (VOR)/distance measuring equipment (DME), 137° radial, increased in width from 1.8 to 2.4 miles each side of centerline and defined in length as extending 7 miles southeast of the VOR/DME. The southwest extension to the airspace area is defined in relation to the VOR/DME 219° radial, decreased in width from 2.6 to 2.4 miles each side of centerline and defined in length as extending 7 miles southwest of the VOR/DME. The northwest extension to the airspace area is defined in relation to the 330° bearing from the airport and decreased in length from 8.3 to 5.6 miles from the airport. The dimensions of the Hastings, NE Class E airspace area extending upward from 700 feet above the surface are modified to appropriate dimensions to accommodate all SIAPs serving the airport and to provide adequate controlled airspace for diverse departures. The radius of this airspace area is increased from a 6.7 to 7.2 miles and all extensions are eliminated. The Hastings VOR/DME is added to the legal description for the Class E area designated as a surface area and the Hastings Municipal Airport ARP is corrected in both legal descriptions. These modifications provide controlled airspace of appropriate dimensions to protect aircraft departing from and executing SIAPs to Hastings Municipal Airport and bring the legal descriptions of the Hastings, NE Class E airspace areas into compliance with FAA Orders 7400.2E and 8260.19C, Flight Procedures and Airspace. Class E airspace areas designated as surface areas are published in Paragraph 6002 of FAA Order 7400.9M, dated August 30, 2004, and effective September 16, 2004, which is incorporated by reference in 14 CFR 71.1. Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in Paragraphs 6005 of the same FAA Order. The Class E airspace designations listed in this document will be published subsequently in the Order.

The FAA anticipates that this regulation will not result in adverse or negative comment and, therefore, is issuing it as a direct final rule. Previous actions of this nature have not been controversial and have not resulted in adverse comments or objections. Unless a written adverse or negative comment, or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the Federal Register indicating that no adverse or negative comments were received and confirming the date on which the final rule will become effective. If the FAA does receive, within the comment period, an adverse or negative comment, or written notice of intent to submit such a comment, a document withdrawing the direct final rule will be published in the Federal Register , and a notice of proposed rulemaking may be published with a new comment period.

Interested parties are invited to participate in this rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2004-19330/Airspace Docket No. 04-ACE-59.” The postcard will be date/time stamped and returned to the commenter.

The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

The FAA has determined that this regulation is noncontroversial and unlikely to result in adverse or negative comments. For the reasons discussed in the preamble, I certify that this regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, 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.

This amendment to 14 CFR 71 modifies the Class E airspace area extending upward from 700 feet above the surface at Warrensburg, MO. An examination of controlled airspace for Warrensburg, MO revealed that the Skyhaven Airport ARP used in the legal description for this Class E airspace area is incorrect and that the airspace area does not comply with airspace requirements for diverse departures as set forth in FAA Order 7400.2E, Procedures for Handling Airspace Matters. The examination also revealed that the Class E airspace area extension is no longer required in order for the airspace area to comply with airspace requirements in FAA Orders 7400.2E, and 8260.19C, Flight Procedures and Airspace. This action expands the Warrensburg, MO Class E airspace area extending upward from 700 feet above the surface from a 6-mile radius to a 7-mile radius of Skyhaven Airport, corrects the ARP in the legal description, deletes the airspace extension and brings the legal description of the airspace area into compliance with FAA Orders 7400.2E and 8620.19C. This area will be depicted on appropriate aeronautical charts. Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9M, Airspace Designations and Reporting Points, dated August 30, 2004, and effective September 16, 2004, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

The FAA anticipates that this regulation will not result in adverse or negative comment and, therefore, is issuing it as a direct final rule. Previous actions of this nature have not been controversial and have not resulted in adverse comments or objections. Unless a written adverse or negative comment, or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the Federal Register indicating that no adverse or negative comments were received and confirming the date on which the final rule will become effective. If the FAA does receive, within the comment period, an adverse or negative comment, or written notice of intent to submit such a comment, a document withdrawing the direct final rule will be published in the Federal Register , and a notice of proposed rulemaking may be published with a new comment period.

Interested parties are invited to participate in this rulemaking by submitting such written data, views, or arguments, as they made desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2004-19333/Airspace Docket No. 04-ACE-62.” The postcard will be date/time stamped and returned to the commenter.

The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

The FAA has determined that this regulation is noncontroversial and unlikely to result in adverse or negative comments. For the reasons discussed in the preamble, I certify that this regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, 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.

None.

On May 17, 2004, we published a notice of proposed rulemaking (NPRM) entitled “Drawbridge Operation Regulations; Spa Creek, Annapolis, MD” in the Federal Register (69 FR 27870). We received no comments on the proposed rule. No public meeting was requested or held.

The City of Annapolis Recreation and Parks Department (the Department) on behalf of Maryland Department of Transportation, who owns and operates the S181 Bridge, requested a change to the operating regulations set out in 33 CFR 117.571.

In accordance with 33 117.37(a) for reason of public safety or for public functions, the District Commander may authorize the opening and closing of a drawbridge for a specified period of time.

Due to the high volume of spectators that attend this annual event, it is necessary to close the draw span to vessels between the hours of 8:30 p.m. to 11 p.m. to help expedite exiting vehicular traffic from the City of Annapolis after the fireworks display. This will reduce vehicular traffic congestion and increase public safety.

Under this rule, the S181 Bridge will be allowed to remain in the closed position to vessels from 8:30 p.m. to 11 p.m. on July 4th, of every year. In the event of inclement weather, the alternate date is July 5th.

Since the Annapolis Fireworks Display is a well-known annual event, and it is publicly advertised, vessel operators can arrange their transits to minimize any impact caused by the closure. Vessels with a mast height less than 15 feet at high water can still transit the bridge in the closed position during this event.

The Coast Guard received no comments on the NPRM for the Spa Creek Bridge and no changes are being made to this final rule.

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

We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary.

This conclusion was based on the fact that this final rule will have a very limited impact on maritime traffic transiting this area. Since Spa Creek will remain open to navigation during this event, mariners with mast height less than 15 feet may still transit through the S181 Bridge.

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

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

This final rule will not have a significant economic impact on a substantial number of small entities because even though the rule closes the S181 Bridge to mariners, those with mast height of less than the 15 feet at high water can still transit through the bridge during the closed hours. There are no alternate routes.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. No assistance was asked for, or given to assist Small Entities.

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 final rule under that Order and have determined that it does not have implications for federalism.

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

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

This final rule meets applicable standards in section 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

This final rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would 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 final rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

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

This final rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (32)(e) of the Instruction, from further environmental documentation.

Throughout this document, whenever “we,” “us” or “our” is used, we mean the EPA.

On January 14, 2004, the TCEQ adopted a Memorandum of Agreement (MOA) between the Commission and the NCTCOG's Regional Transportation Council (RTC). At the same time, TCEQ adopted a revision to the Texas SIP to incorporate this MOA into it. This MOA commits the RTC to provide the Dallas-Fort Worth International Airport with emissions offsets in the amount of 0.18 tpd of NO X and 0.04 tpd of VOCs in 2007 and to adjust the modeled 2015 on-road mobile source emissions estimates by an increase of 1.17 tpd and 0.26 tpd of NO X and VOCs, respectively, in future transportation conformity demonstrations.

EPA is taking direct final action to approve the incorporation of this MOA into the DFW SIP.

The Dallas-Fort Worth International Airport (DFWIA) notified the TCEQ and EPA of upcoming aviation projects which would trigger the need for a general conformity determination by the Federal Aviation Administration (FAA). These projects include construction of a new terminal (Terminal F), addition of a new cargo complex, improvement of airport parking, changes to current operating restrictions of existing terminal facilities, and other related projects included in the DFW Airport Master Plan.

The DFW area is a nonattainment area for the air pollutant ozone, and is operating under a State Implementation Plan (SIP) to control the emissions of NO X and VOCs, which are ozone precursor pollutants. Under the Federal (40 CFR part 51) and Texas (30 TAC 101.30) general conformity rules, certain types of Federal actions require a determination as to whether the total emissions from the action conform with the applicable SIP, unless the resultant emissions are expected to be below the de minimis levels identified in the Clean Air Act (40 CFR 51.853(b)(1)). The de minimis level for the DFW one-hour nonattainment area is 50 tons per year. The applicable SIP, in this case, is the 15% ROP SIP conditionally approved by EPA on November 10, 1998 (63 FR 62943).

Based on submitted estimates of direct and indirect NO X and VOC emissions resulting from these projects, emissions are expected to exceed the de minimis level of 50 tons per year during some of the project years. During the one-hour attainment year of 2007, only NO X estimates exceed this level (0.18 NO X tpd or 65.7 NO X tpy), but in the peak operation year of 2015 both precursor pollutants are expected to exceed the de minimis level (1.16 NO X tpd and 0.26 tpd VOC). As a result a general conformity determination by the FAA is required. The conformity regulations provide several options to meet this requirement. One option is to establish enforceable measures which offset the expected emissions from the project.

The DFWIA worked with the Regional Transportation Council in 2002 to identify emission reduction measures to be used to offset the emissions associated with these airport expansion projects. On December 12, 2002, the RTC resolved to implement emission reduction measures to provide offsets for use by the DFWIA to meet general conformity requirements for the year 2007. At a minimum, these measures will offset the 0.18 tpd of NO X and 0.04 tpd of VOCs that are expected to be generated in 2007 by the Terminal F projects. In addition, the RTC resolved to provide emission reductions in the amount of 1.17 tpd of NO X and 0.26 tpd of VOCs for the year 2015. This will be accomplished by incorporating these expected emissions into the Metropolitan Transportation Plan for the year 2015, for which the total estimated emissions cannot exceed the emissions cap set by the motor vehicle emissions budget for that year. These emission reduction commitments are intended to assist the FAA in making a general conformity determination for the planned airport expansion projects associated with construction of Terminal F. (Note that although the conformity analysis will be conducted for 2007, the reductions that are the source of the offsets will be continuing in nature over the relevant time period and will not be relied on for other purposes or for other years. Details on the emission reduction measures are available in the Technical Support Document associated with this action.)

EPA intends to take direct final action approving this SIP revision providing emission reduction offsets for 2007 and a commitment that the NCTCOG will account for expected project emissions in 2015 as part of its Metropolitan Transportation Plan. These emission reduction commitments will assist the FAA in making a conformity determination for certain projects included in the DFW Airport Master Plan.

The general conformity rules require these measures to be enforceable under both state and Federal law (40 CFR 51.860(g)). Upon the effective date of our action, these measures will be federally enforceable. The MOA between TCEQ and the RTC was adopted by the state on January 14, 2004 and was incorporated in the State Implementation Plan for the DFW ozone nonattainment area on that same day. Thus, these measures are already enforceable by state law.

EPA is approving the revision to the DFW ozone SIP providing emission reduction offsets to DFW International Airport for the year 2007 and a commitment that the NCTCOG will account for expected emissions from certain improvement projects planned for DFWIA in 2015 as part of its Metropolitan Transportation Plan.

We have evaluated the State's submittal and have determined that it meets the applicable requirements of the Clean Air Act and EPA conformity regulations, and is consistent with EPA policy. Therefore, we are approving the request of TCEQ to revise the SIP for the DFW ozone nonattainment area to incorporate this MOA between TCEQ and the Regional Transportation Council of the North Central Texas Council of Governments.

EPA is publishing this rule 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 SIP revision if adverse comments are received. This rule will be effective on December 28, 2004 without further notice unless we receive adverse comment by November 29, 2004. If we receive adverse comments, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so now. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4).

This rule also does not have tribal implications because it will 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, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 28, 2004. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

On June 30, 2004, EPA simultaneously published a proposed rule (69 FR 39382) and a direct final rule (69 FR 39337) to approve the redesignation of the nonattainment area in Iron County, Missouri, bounded by Arcadia and Liberty Townships, to attainment for lead and to take final action to approve the submission for the Doe Run Primary Smelting Facility near Glover, Missouri, as an amendment to the SIP.

The basis for our approval of this redesignation and maintenance plan is described in more detail in the direct final rule (69 FR 39337). The Missouri Department of Natural Resources (MDNR) met the criteria under section 107(d)(3)(E) of the Clean Air Act Amendments (CAAA) for redesignation of the nonattainment area in Iron County to attainment for the lead standard as described in detail in the direct final rule.

The area was designated as nonattainment for lead in January 1992. The nonattainment area includes the portion of Iron County, Missouri, bounded by Arcadia and Liberty Townships. The major source of lead emissions in this nonattainment area is the Doe Run Primary Smelting Facility, near Glover, Missouri.

Primary smelting of lead began at this location in 1968. Currently the facility has ceased production and has been operating on a care and maintenance schedule since December 1, 2003. The state submittal provided ambient air monitor data showing that this area has consistently shown compliance with the NAAQS for lead since the first quarter of 1997, well before the recent shut-down of the facility. Ambient monitoring for lead has shown compliance with the NAAQS for 28 consecutive calendar quarters. The NAAQS for lead is 1.5 micrograms per cubic meter (1.5 μg/m 3 ), maximum quarterly average. A quarterly average is considered a violation of the standard if it is at least 1.6 μg/m 3 when rounded to tenths from the hundredths place when monitored.

EPA guidance provides that, for lead, attainment should be demonstrated by modeling as well as monitoring. Air dispersion modeling using the ISCST Version 3 dated February 4, 2002, was used to evaluate the concentration of lead resulting from operations at the Doe Run Primary Lead Smelting Facility. The maximum concentration predicted by the model was a value of 1.252 μg/m 3 which is in compliance with the lead standard. This maximum modeled value was obtained by incorporating the plume depletion, dry removal option in the ISCST model.

The facility is currently in a non-production mode, but attainment had been shown for several years prior to this change in operation in December 2003. EPA has determined that the improvement in air quality is due to permanent and enforceable SIP controls. EPA has also determined that the area has a fully approved SIP for the area meeting the requirements of section 110 and Part D of Title I of the CAA. The maintenance plan submitted as part of the SIP revision provides for maintenance of the relevant NAAQS in the area for at least ten years after the approval of redesignation to attainment and provides for adequate contingency measures to address any future violations. The basis for these determinations is described in detail in the direct final rule (69 FR 39337, 39339).

EPA received an adverse comment during the 30-day comment period and therefore withdrew the direct final rule on August 24, 2004 (69 FR 51956).

In this final rulemaking, EPA is responding to the adverse comment, and granting final approval to the redesignation of the lead nonattainment area in Iron County, Missouri, to attainment of the NAAQS for lead. We are also approving the maintenance plan for this area, including a state administrative settlement agreement which was submitted with the redesignation request.

EPA received one adverse comment on EPA's June 30, 2004, rule. A summary of the adverse comment and EPA's response is provided below.

Comment: The commenter was concerned that air pollution from Missouri industrial sources effect the air quality in states to the east of Missouri, including New Jersey, and EPA should focus on protecting public health and improving air quality.

Response: The commenter did not take issue with any specific determinations made by EPA with respect to approval of the redesignation request and maintenance plan. The commenter submitted no analysis or data suggesting that lead emissions in the Glover area had any effect on other states. With respect to the commenter's concern about transported emissions, we note that the air dispersion modeling submitted by the Missouri Department of Natural Resources for the redesignation of the lead nonattainment area in the Glover, Missouri, area indicated that the NAAQS for lead had been attained and would be maintained. The Doe Run facility is located within the boundaries of the Liberty and Arcadia townships in Iron County, Missouri. There are no predicted violations of the NAAQS for lead in the ambient air in the vicinity of the Doe Run facility. The predicted lead concentrations resulting from the operation of the lead smelter decrease rapidly as the distance from the lead sources increases. The NAAQS for lead is 1.5 micrograms per cubic meter averaged over a calendar quarter. A review of the modeling indicates that lead concentrations decrease to approximately 0.01 micrograms per cubic meter at approximately 10 kilometers from the facility. The modeling predictions are supported by the measurements made in the local area. Due to the highly localized impacts of lead emissions from the facility, it is extremely unlikely that any significant lead concentrations from the smelter would reach any areas outside Missouri.

EPA also notes that this action will not result in any increases in emissions from the facility. The maintenance plan commits to continuing to implement the lead emission control measures which resulted in attainment of the lead standard and to implementing contingency measures as necessary to address exceedances of the lead NAAQS. Any significant new growth would be subject to Missouri's construction permitting program. Therefore, EPA's action will not result in any additional air quality problems with respect to lead, either locally or in other states.

Final rule. EPA is granting final approval to the redesignation of the lead nonattainment area in Iron County, Missouri, to attainment of the NAAQS for lead. We are approving the maintenance plan for this area including a settlement agreement which was submitted with the redesignation request. For the reasons stated in the direct final rule referenced previously, EPA has determined that the submission meets the criteria under section 107(d)(3)(E) of the CAAA for redesignation, and the maintenance plan requirements in section 175A of the CAAA.

Administrative change. We are also adding numbers to entries previously published in table (e) in § 52.1320. On May 13, 2004 (69 FR 26506), table (e) was amended and the entry for the “Vehicle I/M Program” for St. Louis is designated (47). On August 24, 2004 (69 FR 51955), table (e) was amended and the entry for the “Revised Maintenance Plan of Doe Run Resource Recycling Facility near Buick, Mo.,” is designated (48).

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). This rule approves preexisting requirements under state law. In addition, the redesignation is an action which affects the status of a geographic area but does not impose any new requirements on governmental entities or sources. Therefore because it does not impose any additional enforceable duty beyond that required by state law, it 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).

This rule and redesignation do not have tribal implications because it will 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, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 28, 2004. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2).)

On December 19, 1995, pursuant to sections 111 and 129 of the Clean Air Act (Act), EPA promulgated new source performance standards (NSPS) applicable to new MWC units and emission guidelines (EG) applicable to existing MWC units. The NSPS and EG are codified at 40 CFR part 60, subparts Eb and Cb, respectively. See 60 FR 65387. Subparts Cb and Eb regulate the following: particulate matter, opacity, sulfur dioxide, hydrogen chloride, oxides of nitrogen, carbon monoxide, lead, cadmium, mercury, and dioxins and dibenzofurans.

However, on April 8, 1997, the United States Court of Appeals for the District of Columbia Circuit vacated subparts Cb and Eb as they apply to MWC units with combustion capacity less than or equal to 250 tons per day of MSW (small MWCs), consistent with their opinion in Davis County Solid Waste Management and Recovery District v. EPA , 101 F.3d 1395 (D.C. Cir. 1996), as amended, 108 F.3d 1454 (D.C. Cir. 1997). As a result, subparts Cb and Eb now apply only to MWC units with individual unit combustion capacity of more than 250 tons per day of MSW ( i.e. , large MWC units). This change was published in the Federal Register (62 FR 45116) on August 25, 1997. In addition, subsequent clarifying amendments were published in the Federal Register (66 FR 57824) on November 16, 2001. 1

Section 129(b)(2) of the Act requires States to submit to EPA for approval State Plans that implement and enforce the EG. State Plans must be at least as protective as the EG, and become Federally enforceable as a section 111(d)/129 plan upon approval by EPA. The procedures for adoption and submittal of State Plans are codified in 40 CFR part 60, subpart B.

As required by section 129(b)(3) of the Act, on November 12, 1998 EPA promulgated a Federal implementation plan (FIP), amended May 24, 2000, for large MWC units that commenced construction on or before September 20, 1994. The FIP (40 CFR part 62, subpart FFF, 63 FR 63191 and 65 FR 33461) is a set of maximum achievable control technology (MACT) requirements that implement the 1995 large MWC emission guidelines for states, such as Virginia, without an approved plan. The FIP fills a Federal enforceability gap until state plans are approved and ensures that the affected MWC units stay on track to complete pollution control equipment retrofit schedules in order to meet the final statutory compliance date of December 19, 2000.

EPA has reviewed the Virginia plan, submitted on August 18, 2003, for existing large MWC units in the context of the requirements of 40 CFR part 60, and subparts B and Cb, as amended. State plans must include the following essential elements: (1) Identification of legal authority, (2) identification of mechanism for implementation, (3) inventory of affected facilities, (4) emissions inventory, (5) emissions limits, (6) compliance schedules, (7) testing, monitoring, recordkeeping, and reporting, (8) public hearing records, and (9) annual state progress reports on facility compliance.

Title 40 CFR 60.26 requires the plan to demonstrate that the State has legal authority to adopt and implement the emission standards and compliance schedules. The DEQ has demonstrated that it has the legal authority to adopt and implement the emission standards governing large MWC units. DEQ's legal authority is provided in the Air Pollution Control Law of Virginia, Title 10.1, Chapter 13, of the Code of Virginia. This authority is discussed in the plan narrative and a July 1, 1998 letter from the Virginia Office of the Attorney General to the DEQ. This meets the requirements of 40 CFR 60.26.

The subpart B provision at 40 CFR 60.24(a) requires that state plans include emissions standards, defined in 40 CFR 60.21(f) as “a legally enforceable regulation setting forth an allowable rate of emissions into the atmosphere, or prescribing equipment specifications for control of air pollution emissions.” The Commonwealth of Virginia through the DEQ, has adopted State Air Pollution Control Board Regulations (Rule 4-54 and other supporting air program rules) to control large MWC emissions. Rule 4-54, Emission Standards for Large MWC, became effective on August 4, 1999, and was subsequently amended on February 1, 2002, and July 1, 2003. Other applicable and effective supporting air program rules were identified and submitted to EPA on August 11, 2003 and April 6, 2004. These rules collectively met the requirement of 40 CFR 60.24(a) to have a legally enforceable emission standard.

Title 40 CFR 60.25(a) requires the plan to include a complete source inventory of all affected facilities (i.e., existing MWC units with a capacity greater than 250 TPD). The DEQ has identified three (3) affected facilities. Each have an MWC unit capacity greater than 250 TPD. The affected facilities are Covanta Fairfax with four units, Covanta Alexandria with three units, and the Southeastern Public Service Authority with four units.

Title 40 CFR 60.25(a) requires that the plan include an emissions inventory that estimates emissions of the pollutant regulated by the EG. Emissions from MWC units contain organics (dioxin/furans), metals (cadmium, lead, mercury, particulate matter, opacity), and acid gases (hydrogen chloride, sulphur dioxide, and nitrogen oxides). For each MWC facility, the DEQ plan contains MWC unit emissions rates estimates that are given in an acceptable format. This meets the emission inventory requirements of 40 CFR 60.25(a).

Title 40 CFR 60.24(c) specifies that the State plan must include emission standards that are no less stringent than the EG, except as specified in 40 CFR 60.24(f) which allows for less stringent emission limitations on a case-by-case basis if certain conditions are met. However, this exception clause is superseded by section 129(b)(2) of the Act which requires that state plans be “at least as protective” as the EG , in this case 40 CFR part 60, subpart Cb. A review of the applicable Rule 4-54 emissions limitations shows that all are “at least as protective” as those in the EG, as amended. In addition to the required section 129 emissions limitations, other limitations under Rule 4-54 (i.e., 9 VAC 5-40-8080, 8100, and 8100E), relating to odors, toxic pollutants (state only requirements), and nitrogen oxides (NO X ) emissions trading, are not within the scope of section 129 requirements for plan approval. These other emissions limitations are not relevant or approvable under this plan approval action. This is discussed further in Section III, Final Action.

Under 40 CFR 60.24(c) and (e), a state plan must include an expeditious compliance schedule that owners and operators of affected MWCs must meet in order to comply with the requirements of the plan. Also, Title 40 CFR 60.39b of the EG provides that planning, awarding of contracts, and installation of air emission collection and control equipment capable of meeting the EG requirements must be accomplished within 3 years of EPA plan approval, but in no case later than December 19, 2000. Accordingly, the DEQ determined that source compliance with the EG emissions limits must be achieved on or before December 19, 2000, as stipulated in the promulgated FIP. In order to implement this requirement, Rule 4-54, 9 VAC 5-40-8110, incorporates by reference the Federal plan compliance schedule provisions of 40 CFR 62.14108 and 62.14109(e) through (m) which establish expeditious interim and final compliance dates that are consistent with the provisions of 40 CFR 60.24(c) and (e), and 40 CFR 60.39b of subparts B and Cb, respectively. The state plan meets the applicable Federal compliance schedule requirements.

The provisions of 40 CFR 60.24(b) and 60.25(b) stipulate facility testing, monitoring recordkeeping and reporting requirements for state plans. Also, related EG provisions 40 CFR 60.38b and 60.39b cross reference applicable NSPS (subpart Eb) requirements that state plans must include. The DEQ regulation meets the subpart B requirements of 40 CFR 60.24 and 60.25; and the related subpart Cb provisions of 40 CFR 60.38b and 60.39b. However, when considering that Rule 4-54 references 40 CFR 60.11(e), which allows use of continuous opacity monitoring (COM) data, a point of clarity is in order. The opacity limitations promulgated under subparts Cb and Eb were based on stack test data using EPA Method 9. Accordingly, COM data is used only as an indicator for corrective actions, if necessary, or as the basis for a compliance retest of the MWC facility. This matter is discussed and clarified in EPA's Background Information Document (EPA-453/R-95-0136) for the MWC rules.

Public hearings on the plan were held October 17, 2000 and July 23, 2003. Applicable portions of Rule 4-54 became effective initially on August 4, 1999, with subsequent amendments on February 1, 2002 and July 1, 2003. The state provided evidence of complying with public notice and other hearing requirements, including a record of public comments received. The DEQ has met the 40 CFR 60.23 requirement for a public hearing on the plan.

The DEQ will submit to EPA on an annual basis a report which details the progress in the enforcement of the plan in accordance with 40 CFR 60.25. Accordingly, the DEQ will submit reports on progress in plan enforcement to EPA on an annual (calendar year) basis, commencing with the first full report period after plan approval.

In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information (1) that are generated or developed before the commencement of a voluntary environmental assessment; (2) that are prepared independently of the assessment process; (3) that demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) that are required by law.

On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts * * *.” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.”

Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any Federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.”

Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its section 111(d)/129 program consistent with the Federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the Clean Air Act, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the Clean Air Act is likewise unaffected by this, or any, state audit privilege or immunity law.

Based upon the rationale discussed above and in further detail in the technical support document (TSD) associated with this action, EPA is approving the Virginia plan, excluding the non-applicable rule provisions, as identified in the DEQ letters of August 11, and 18, 2003; and April 6, and August, 25, 2004 to EPA. The identified exclusions, for example, include Rule 4-54 provisions relating to odors, toxic pollutants (state only requirements), NO X emissions trading, and MWC operator requirements under the Virginia Board for Waste Management Facility Operators. As a result of this EPA approval action, the Federal plan is no longer applicable, except for the compliance schedule provisions of 40 CFR 62.14108 and 62.14109(e) through (m) that are incorporated by reference into Rule 4-54. Also, with respect to certain plan decisions, EPA retains discretionary authority for several actions as listed in the August 18, 2003 plan narrative, paragraph H. As provided by 40 CFR 60.28(c), any revisions to the Virginia plan or supporting regulations will not be considered part of the applicable plan until submitted by the Commonwealth of Virginia in accordance with 40 CFR 60.28(a) or (b), as applicable, and until approved by EPA in accordance with 40 CFR part 60, subpart B, requirements.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. This action simply reflects already existing Federal requirement for state air pollution control agencies and existing large MWC units that are subject to the provisions of 40 CFR part 60, subparts B, and Cb; and 40 CFR part 62, subpart FFF, as applicable. However, in the “Proposed Rules” section of today's Federal Register , EPA is publishing a separate document that will serve as the proposal to approve the section 111(d)/129 plan should relevant adverse or critical comments be filed. This rule will be effective December 28, 2004 without further notice unless EPA receives adverse comments by November 29, 2004. If EPA receives adverse comments, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule did not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not have tribal implications because it will 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, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing section 111(d)/129 plan submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a 111(d)/129 plan submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a 111(d)/129 plan submission, to use VCS in place of a 111(d)/129 plan submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

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. Section 804 exempts from section 801 the following types of rules: (1) Rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of particular applicability establishing source-specific requirements for three (3) specific facilities.

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 December 28, 2004. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action, approving the Virginia section 111(d)/129 plan for large MWC units, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

No one is regulated by this rule. This rule withdraws certain Federal water quality criteria applicable to Alaska, Arkansas, and Puerto Rico.

In 1992, EPA promulgated the “National Toxics Rule” (“NTR”) to establish numeric water quality criteria for 12 states and two Territories (hereafter “States”) that had failed to comply fully with section 303(c)(2)(B) of the Clean Water Act (“CWA”) (57 FR 60848, December 22, 1992). The criteria, codified at 40 CFR 131.36, became the applicable water quality standards in those 14 jurisdictions for all purposes and programs under the CWA effective February 5, 1993.

As described in the preamble to the final NTR, when a State adopts, and EPA approves, water quality criteria that meet the requirements of the CWA, EPA will issue a rule amending the NTR to withdraw the Federal criteria applicable to that State. If the State's criteria are no less stringent than the promulgated Federal criteria, EPA will withdraw its criteria without notice and comment because additional comment on the criteria is unnecessary ( see 65 FR 19659, April 12, 2000). However, if a State adopts criteria that are less stringent than the Federally-promulgated criteria, but which the Agency judges to meet the requirements of the Act, EPA will seek public comment before withdrawing the Federally-promulgated criteria ( see 57 FR 60860, December 22, 1992). Section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice and public comment procedures are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and opportunity for public comment.

There is good cause for making today's rule final without prior proposal and comment because, being identical or more stringent, the States' criteria are no less stringent than the Federal regulations. For the same reason, and because this rule relieves a Federal restriction, good cause exists to waive the requirement for a 30-day period before the amendment becomes effective. Therefore, the amendment is immediately effective. This rule does not remove any water quality protections. It removes a Federal regulation that duplicates State regulation.

On March 30 and April 27, 1999, Alaska adopted revisions to its surface water quality standards (18 AAC 70). Alaska submitted the revisions to EPA for approval by letter dated May 10, 1999, and EPA received the revisions on May 13, 1999.

EPA Region 10 approved the State's freshwater and marine water aquatic life criteria for certain NTR pollutants on September 28, 2001, because they were identical to the NTR values and were consistent with both the CWA and EPA's implementing regulations at 40 CFR part 131. These pollutants are Nickel (acute), Selenium (acute and chronic), Zinc (acute), Pentachlorophenol (acute), and Toxaphene (acute). Today, EPA is withdrawing Federal water quality criteria applicable to Alaska for the freshwater and marine aquatic life criteria.

On January 23,1998, Arkansas adopted revisions to its surface water quality standards (Regulation 2, Establishing Water Quality Standards for the Surface Waters of the State of Arkansas, Minute Order 98-03). Arkansas adopted acute and/or chronic freshwater aquatic life criteria as noted and conversion factors for these metals contained in the NTR:

• Cadmium (acute and chronic),

• Chromium (III) (acute and chronic),

• Chromium (VI) (acute and chronic),

• Copper (acute and chronic),

• Lead (acute and chronic),

• Mercury (acute and chronic),

• Nickel (acute and chronic),

• Selenium (acute and chronic),

• Silver (acute), and Zinc (acute and chronic).

Today, EPA is withdrawing Arkansas from the NTR for those criteria and, as a result, completely removing Arkansas from the NTR.

On September 21, 1990, EPA Region 2 received revisions to Puerto Rico's water quality standards. The Chairman of the Puerto Rico Environmental Quality Board (PREQB) informed EPA that it may not be the final submission, since PREQB had not completed its public hearing process. Because of this caveat, and because Puerto Rico had not submitted the requisite certification from its Secretary of Justice as required by 40 CFR 131.6(e), EPA Region 2 did not act on these revisions immediately. As previously noted, EPA included Puerto Rico in the NTR in 1992, in large part because EPA did not consider Puerto Rico's 1990 revisions adopted. The Commonwealth's Secretary of Justice ultimately submitted the required certification to EPA on February 25, 2002.

EPA took final action on all new and revised provisions of the 1990 Puerto Rico Water Quality Standards Regulation (PRWQSR) on March 28, 2002, after it received the required certification. EPA Region 2 approved Puerto Rico's numeric criteria because they were consistent with the CWA and EPA's implementing regulations at 40 CFR 131.11. For all of these pollutants, the criteria were no less stringent than the promulgated Federal criteria in the NTR.

Meanwhile, in October 2001, Puerto Rico began an effort to revise the PRWQSR. This effort included adopting numerous chemical-specific numeric criteria for toxic pollutants contained in the NTR. EPA Region 2 approved Puerto Rico's criteria on June 26, 2003, since the adopted numeric criteria for the protection of aquatic life and human health were consistent with the CWA and EPA's implementing regulations at 40 CFR 131.11. With few exceptions, the adopted criteria were identical to EPA's April 1999 national recommended water quality criteria. In most cases, these criteria were no less stringent than the promulgated Federal criteria in the NTR. Puerto Rico adopted several criteria that are less stringent than the promulgated Federal criteria in the NTR. Consequently, EPA is not including any of these pollutants in today's withdrawal of NTR criteria applicable to waters in Puerto Rico. The criteria adopted by Puerto Rico and approved by EPA but not included in today's rulemaking are:

• Dichlorobromomethane,

• Benzo(a)Anthracene,

• Benzo(a)Pyrene,

• Benzo(b)Flouranthene,

• Benzo(k)Flouranthene,

• Chrysene,

• Dibenzo(a,h)Anthracene,

• Indeno(1,2,3-cd)Pyrene, and

• Isophrone.

EPA is removing Puerto Rico from the NTR for the following pollutants:

• Antimony (human health—water & organism and organism only),

• Arsenic (all),

• Cadmium (aquatic life—freshwater (acute and chronic) and marine water (acute and chronic)),

• Chromium III (aquatic life—freshwater (acute and chronic)),

• Chromium VI (aquatic life—freshwater (acute and chronic)),

• Copper (aquatic life—freshwater (acute and chronic) and marine water (acute and chronic)),

• Lead (aquatic life—freshwater (acute and chronic) and marine water (acute and chronic)),

• Mercury (aquatic life—freshwater (acute), aquatic life—marine water (acute), and human health—water & organism and organism only),

• Nickel (all),

• Selenium (aquatic life—freshwater (acute and chronic) and marine water (acute and chronic)),

• Silver (aquatic life—freshwater (acute) and aquatic life—marine water (acute)),

• Zinc (aquatic life—freshwater (acute and chronic) and marine water (acute and chronic)),

• Cyanide (all),

• Asbestos (human health—water & organism),

• Acrolein (human health—water & organism and organism only),

• Acrylonitrile (human health—water & organism and organism only),

• Benzene (human health—water & organism and organism only),

• Bromoform (human health—water & organism and organism only),

• Carbon Tetrachloride (human health—water & organism and organism only),

• Chlorobenzene (human health—water & organism and organism only),

• Chlorodibromomethane (human health—water & organism and organism only),

• Chloroform (human health—water & organism and organism only),

• 1,2-Dichloroethane (human health—water & organism and organism only),

• 1,1-Dichloroethylene (human health—water & organism and organism only),

• 1,3-Dichloropropylene (human health—water & organism and organism only),

• Ethylbenene (human health—water & organism and organism only),

• Methyl Bromide (human health—water & organism and organism only),

• Methylene Chloride (human health—water & organism and organism only),

• 1,1,2,2-Tetrachloroethane (human health—water & organism and organism only),

• Tetrachloroethylene (human health—water & organism and organism only),

• Toluene (human health—water & organism and organism only),

• 1,1,2-Trichloroethane (human health—water & organism and organism only),

• Trichloroethylene (human health—water & organism and organism only),

• Vinyl Chloride (human health—water & organism and organism only),

• 2,4-Dichlorophenol (human health—water & organism and organism only),

• 2-Methyl-4,6-Dinitrophenol (human health—water & organism and organism only),

• Pentachlorophenol (human health—water & organism and organism only),

• Phenol (human health—water & organism and organism only),

• 2,4,6-Trichlorohenol (human health—water & organism and organism only),

• Anthracene (human health—water & organism and organism only),

• Benzidene (human health—water & organism and organism only),

• Bis (2-Chloroethyl) Ether (human health—water & organism and organism only),

• Bis (2-Chloroisopropyl) Ether (human health—water & organism and organism only),

• Bis (2-Ethylhexyl) Phthalate (human health—water & organism and organism only),

• 1,2-Dichlorobenzene (human health—water & organism and organism only),

• 1,3-Dichlorobenzene (human health—water & organism and organism only),

• 1,4-Dichlorobenzene (human health—water & organism and organism only),

• 3,3-Dichlorobenzidene (human health—water & organism and organism only),

• Diethyl Phthalate (human health—water & organism and organism only),

• Dimethyl Phthalate (human health—water & organism and organism only),

• Di-n-Butyl-Phthalate (human health—water & organism and organism only),

• 2,4-Dinitrotoluene (human health—water & organism and organism only),

• 1,2-Diphenylhydrazine (human health—water & organism and organism only),

• Fluoranthene (human health—water & organism and organism only),

• Fluorene (human health (water & organism)),

• Hexachlorobenzene (human health—water & organism and organism only),

• Hexachlorbutadiene (human health—water & organism and organism only),

• Hexachlorocyclopentadiene (human health—water & organism and organism only),

• Hexachloroethane (human health—water & organism and organism only),

• Nitrobenzene (human health—water & organism and organism only),

• N-Nitroso-dimethylamine (human health—water & organism and organism only),

• N-Nitrosodiphenylamine (human health—water & organism and organism only),

• Pyrene (human health—water & organism and organism only),

• Aldrin (aquatic life—freshwater (acute), aquatic life—marine water (acute), and human health—water & organism and organism only),

• gamma-BHC (aquatic life—freshwater (acute), aquatic life—marine water (acute), and human health—water & organism and organism only),

• Chlordane,

• 4,4-DDT, 4,4-DDE (human health—water & organism and organism only),

• 4,4-DDD (human health—water & organism and organism only),

• Dieldrin (all),

• a-Endosulfan (aquatic life—freshwater (acute and chronic) and human health—water & organism and organism only),

• b-Endosulfan (aquatic life—freshwater (acute and chronic) and human health—water & organism and organism only),

• Endrin (aquatic life—freshwater (acute), aquatic life—marine (acute and chronic), and human health—water & organism and organism only),

• Heptachlor (all), and

• Toxaphene (all).

This action withdraws Federal requirements applicable to Alaska, Arkansas, and Puerto Rico, and imposes no regulatory requirements or costs on any person or entity, does not interfere with the action or planned action of another agency, and does not have any budgetary impacts or raise novel legal or policy issues. Thus, it has been determined that this rule is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to the Office of Management and Budget (OMB) review.

This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 because it is administratively withdrawing Federal requirements that no longer need to apply to Alaska, Arkansas, and Puerto Rico.

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, generally requires an agency to prepare a regulatory flexibility analysis of a rule that is subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have significant economic impact on a substantial number of small entities. This rule imposes no regulatory requirements or costs on any small entity. Therefore, I certify that this action will not have a significant economic impact on a substantial number of small entities.

Title III of the Unfunded Mandates Reform Act (UMRA) (Public Law 104-4) establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, Tribal, and local governments and the private sector. Today's rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, Tribal, or local governments or the private sector because it imposes no enforceable duty on any of these entities. Thus, today's rule is not subject to the requirements of UMRA sections 202 and 205 for a written statement and small government agency plan. Similarly, EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments and is therefore not subject to UMRA section 203.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure State and local government officials have an opportunity to provide input in the development of regulatory policies that have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of governments. This rule imposes no regulatory requirements or costs on any State or local governments; therefore, it does not have Federalism implications under Executive Order 13132.

Again, this rule imposes no regulatory requirements or costs on any Tribal government. It does not have substantial direct effects on Tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (59 FR 22951, November 6, 2000).

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

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

The requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply because this rule does not involve technical standards.

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary or contrary to public interest. This determination must be supported by a brief statement. 5 U.S.C. 808(2). As stated previously, EPA has made such a good cause finding, including reasons therefore, and established an effective date of October 29, 2004. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

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

• Crop production (NAICS 111), e.g., agricultural workers; greenhouse, nursery, and floriculture workers; commercial applicators; farmers.

• Animal production (NAICS 112), e.g., cattle ranchers and farmers, dairy cattle farmers, livestock farmers.

• Food manufacturing (NAICS 311), e.g., food manufacturing plant employees; produce truck drivers; waste disposal truck drivers; consumers.

• Pesticide manufacturing (NAICS 32532), e.g., pesticide manufacturing plant employees; pesticide distribution employees; agricultural workers; commercial applicators; farmers; greenhouse, nursery, and floriculture workers.

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

In addition to using EDOCKET (http://www.epa.gov/edocket/) , you may access this Federal Register document electronically through the EPA Internet under the “ Federal Register ” listings at http://www.epa.gov/fedrgstr/ . A frequently updated electronic version of 40 CFR part 180 is available at E-CFR Beta Site Two at http://www.gpoaccess.gov/ecfr/ . To access the OPPTS Harmonized Guidelines referenced in this document, go directly to the guidelines at http://www.epa.gpo/opptsfrs/home/guidelin.htm/.

In the Federal Register of August 13, 2003 (68 FR 48367) (FRL-7320-6), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of three pesticide petitions (PP 2E6473, 3E6548, and 3E6553) by Interregional Research Project Number 4 (IR-4), 681 U.S. Highway #1 South, North Brunswick, NJ 08902-3390. The petitions requested that 40 CFR 180.582 be amended by establishing tolerances for the combined residues of the fungicide carbamic acid, [2-[[[1-(4-chlorophenyl)-1H-pyrazol-3-yl]oxy]methyl]phenyl]methoxy-, methyl ester], pyraclostrobin, and methyl-N-[[[1-(4-chlorophenyl) pyrazol-3-yl]oxy]o-tolyl] carbamate, the desmethoxy metabolite of pyraclostrobin, expressed as parent compound], in or on brassica, head and stem, subgroup at 5 ppm (PP 3E6553); lettuce, head at 22 ppm (PP 2E6473); lettuce, leafy at 22 ppm (PP 2E6473); and vegetable, leaves of root and tuber, group at 16 ppm (PP 3E6548).

In the Federal Register of August 27, 2004 (69 FR 52670) (FRL-7676-9), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of three pesticide petitions (PP 0F6139, 2F6431, and 3F6581) by BASF Corporation, Research Triangle Park, NC 27709 and one pesticide petition (PP 3E6774) by Interregional Research Project Number 4 (IR-4), 681 U.S. Highway #1 South, North Brunswick, NJ 08902-3390. The petitions requested that 40 CFR 180.582 be amended by establishing tolerances for the combined residues of the fungicide carbamic acid, [2-[[[1-(4-chlorophenyl)-1H-pyrazol-3-yl]oxy]methyl]phenyl]methoxy-, methyl ester, pyraclostrobin, and methyl-N-[[[1-(4-chlorophenyl) pyrazol-3-yl]oxy]o-tolyl] carbamate, the desmethoxy metabolite of pyraclostrobin, expressed as parent compound, in or on apple, wet pomace at 8.0 ppm (PP 2F6431); brassica, leafy greens, subgroup at 16.0 ppm (PP 3F6581); corn, field, grain at 0.1 ppm (PP 2F6431); corn, field, forage at 5.0 ppm (2F6431); corn, field, stover at 17.0 ppm (PP 2F6431); corn, field, refined oil at 0.2 ppm (PP 2F6431); corn, pop, grain at 0.1 ppm (PP 2F6431); corn, pop, stover at 17.0 ppm (PP 2F6431); corn, sweet, kernel plus cob with husks removed at 0.04 ppm (PP 2F6431); corn, sweet, forage at 5.0 ppm (PP 2F6431); corn, sweet, stover at 23.0 ppm (PP 2F6431); fruit, pome, group 11 at 1.5 ppm (PP 2F6431); hop, dried, cones at 23.0 ppm (PP 2F6431); legume, forage, except peanut and soybean at 25.0 ppm (PP 2F6431); pea, succulent at 0.2 ppm (PP 2F6431); pea and bean, dried shelled, except soybean, subgroup at 0.3 ppm (PP 0F6139); peppermint at 8.0 ppm (PP2F6431); soybean, forage at 5.0 ppm (PP 3F6581); soybean, hay at 7.0 ppm (PP 3F6581); soybean, hulls at 0.06 ppm (PP 3F6581); soybean, seed at 0.04 ppm (PP 3F6581); spearmint at 8.0 ppm (PP 2F6431); sunflower at 0.3 ppm (PP 2F6431); vegetable, leafy, except brassica, group at 29.0 ppm (PP 3E6774); and vegetable, legume, edible podded, subgroup at 0.5 ppm (PP 2F6431). Tolerance petition 3F6581 also requests that 40 CFR 180.582 be amended by increasing the tolerances for the combined residues of pyraclostrobin and the desmethoxy metabolite of pyraclostrobin, expressed as parent compound, in or on citrus, dried pulp to 12.5 ppm (PP 3F6581); citrus, oil to 9.0 ppm (PP 3F6581); and fruit, citrus, group to 2.0 ppm (PP 3F6581). Tolerance petition 0F6139 also requests that 40 CFR 180.582 be amended by removing the tolerance for the combined residues of pyraclostrobin and the desmethoxy metabolite of pyraclostrobin, expressed as parent compound, in or on bean, dry, seed at 0.3 ppm. The latter tolerance has been superseded by the tolerance for pea and bean, dried shelled, except soybean, subgroup at 0.3 ppm.

In the Federal Register of August 30, 2004 (68 FR 52891) (FRL-7676-8), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 4F6850) by BASF Corporation, Research Triangle Park, NC 27709. The petition requested that 40 CFR 180.582 be amended by increasing the tolerance for the combined residues of the fungicide carbamic acid, [2-[[[1-(4-chlorophenyl)-1H-pyrazol-3-yl]oxy]methyl]phenyl]methoxy-,methyl ester, pyraclostrobin, and methyl-N-[[[1-(4-chlorophenyl) pyrazol-3-yl]oxy]o-tolyl] carbamate, the desmethoxy metabolite of pyraclostrobin, expressed as parent compound, in or on strawberry to 1.5 ppm.

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

EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. For further discussion of the regulatory requirements of section 408 of FFDCA and a complete description of the risk assessment process, see the final rule on Bifenthrin Pesticide Tolerances (62 FR 62961, November 26, 1997) (FRL-5754-7).

Consistent with section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure, consistent with section 408(b)(2) of FFDCA, to establish (or increase) tolerances for the combined residues of carbamic acid, [2-[[[1-(4-chlorophenyl)-1H-pyrazol-3-yl]oxy]methyl]phenyl]methoxy-, methyl ester, pyraclostrobin, and methyl-N-[[[1-(4-chlorophenyl) pyrazol-3-yl]oxy]o-tolyl] carbamate, the desmethoxy metabolite of pyraclostrobin, expressed as parent compound in or on apple, wet pomace 8.0 ppm; brassica, head and stem, subgroup at 5.0 ppm; brassica, leafy greens, subgroup at 16.0 ppm; citrus, dried pulp at 12.5 ppm (increased from 5.5 ppm); citrus, oil at 9.0 ppm (increased from 4.0 ppm); corn, field, grain at 0.1 ppm; corn, field, forage at 5.0 ppm; corn, field, stover at 17.0 ppm; corn, field, refined oil at 0.2 ppm; corn, pop, grain at 0.1 ppm; corn, pop, stover at 17.0 ppm; corn, sweet, kernel plus cob with husks removed at 0.04 ppm; corn, sweet, forage at 5.0 ppm; corn, sweet, stover at 23.0 ppm; fruit, citrus, group at 2.0 ppm (increased from 0.7 ppm); fruit, pome, group at 1.5 ppm; hop, dried cones at 23.0 ppm; legume, forage, except peanut and soybean at 25.0 ppm; pea, succulent at 0.2 ppm; pea and bean, dried shelled, except soybean, subgroup at 0.3 ppm; peppermint at 8.0 ppm; soybean, forage at 5.0 ppm; soybean, hay at 7.0 ppm; soybean, hulls at 0.06 ppm; soybean, seed at 0.04 ppm; spearmint at 8.0 ppm; strawberry at 1.5 ppm (a temporary increased tolerance with an expiration date of December 31, 2005); sunflower at 0.3 ppm; vegetable, legume, edible podded, subgroup at 0.5 ppm; vegetable, leafy, except brassica, group at 29.0 ppm; and vegetable, leaves of root and tuber, except sugar beet at 16.0 ppm ppm. EPA's assessment of exposures and risks associated with establishing the tolerances follows.

EPA has evaluated the available toxicity data and considered their validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. The nature of the toxic effects caused by pyraclostrobin are discussed in Table 1 of this unit as well as the no observed adverse effect level (NOAEL) and the lowest observed adverse effect level (LOAEL) from the toxicity studies reviewed.

On April 20, 2004, U.S. EPA published a proposed rule (69 FR 21077) proposing to grant Indiana authorization for changes to its Resource Conservation and Recovery Act program, listed in section F of that notice, which was subject to public comment. No comments were received. We hereby determine that Indiana's hazardous waste program revisions satisfy all of the requirements necessary to qualify for final authorization.

States which have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, States must change their programs and ask EPA to authorize the changes. Changes to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 266, 268, 270, 273 and 279.

We conclude that Indiana's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we propose to grant Indiana Final authorization to operate its hazardous waste program with the changes described in the authorization application. Indiana has responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs) within its borders (except in Indian Country) and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates under the authority of HSWA take effect in authorized States before they are authorized for the requirements. Thus, EPA will implement those requirements and prohibitions in Indiana, including issuing permits, until the State is granted authorization to do so.

This decision means that a facility in Indiana subject to RCRA will now have to comply with the authorized State requirements (listed in section F of this notice) instead of the equivalent Federal requirements in order to comply with RCRA. Indiana has enforcement responsibilities under its State hazardous waste program for violations of such program, but EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to:

• Do inspections, and require monitoring, tests, analyses or reports;

• Enforce RCRA requirements and suspend or revoke permits;

• Take enforcement actions regardless of whether the State has taken its own actions.

This action does not impose additional requirements on the regulated community because the regulations for which Indiana is being authorized by today's action are already effective, and are not changed by today's action.

On April 20, 2004 (69 FR 21077), EPA published a proposed rule. In that rule we proposed granting authorization of changes to Indiana's hazardous waste program and opened our decision to public comment. The Agency received no comments on this proposal. EPA found Indiana's RCRA program to be satisfactory.

Indiana initially received Final authorization on January 31, 1986, effective January 31, 1986 (51 FR 3955) to implement the RCRA hazardous waste management program. We granted authorization for changes to their program on October 31, 1986, effective December 31, 1986 (51 FR 39752); January 5, 1988, effective January 19, 1988 (53 FR 128); July 13, 1989, effective September 11, 1989 (54 FR 29557); July 23, 1991, effective September 23, 1991 (56 FR 33717); July 24, 1991, effective September 23, 1991 (56 FR 33866); July 29, 1991, effective September 27, 1991 (56 FR 35831); July 30, 1991, effective September 30, 1991 (56 FR 36010); August 20, 1996, effective October 21, 1996 (61 FR 43018); September 1, 1999, effective November 30, 1999 (64 FR 47692), January 4, 2001 effective January 4, 2001 (66 FR 733), and December 6, 2001 effective December 6, 2001 (66 FR 63331).

On March 26, 2003, Indiana submitted a final complete program revision application, seeking authorization of their changes in accordance with 40 CFR 271.21. We now make a final decision, that Indiana's hazardous waste program revision satisfies all of the requirements necessary to qualify for Final authorization. Therefore, we propose to grant Indiana Final authorization for the following program changes:

Indiana has excluded the non-delegable Federal requirements at 40 CFR 268.5, 268.6, 268.42(b), 268.44, and 270.3 in their Incorporation by Reference at 3.1-12-2 and 3.1-13-2(4). EPA will continue to implement those requirements.

Indiana will issue permits for all the provisions for which it is authorized and will administer the permits it issues. EPA will continue to administer any RCRA hazardous waste permits or portions of permits which we issued prior to the effective date of this authorization until they expire or are terminated. We will not issue any more new permits or new portions of permits for the provisions listed in the Table above after the effective date of this authorization. EPA will continue to implement and issue permits for HSWA requirements for which Indiana is not yet authorized.

Indiana is not authorized to carry out its hazardous waste program in “Indian Country”, as defined in 18 U.S.C. 1151. Indian Country includes:

1. All lands within the exterior boundaries of Indian reservations within or abutting the State of Indiana;

2. Any land held in trust by the U.S. for an Indian tribe; and

3. Any other land, whether on or off an Indian reservation that qualifies as Indian Country. Therefore, this action has no effect on Indian Country. EPA retains the authority to implement and administer the RCRA program in Indian Country. However, at this time, there is no Indian Country within the State of Indiana.

Codification is the process of placing the State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. We do this by referencing the authorized State rules in 40 CFR part 272. Indiana's rules, up to and including those revised January 4, 2001, have previously been codified through the incorporation-by-reference effective December 24, 2001 (66 FR 53728, October 24, 2001). We reserve the amendment of 40 CFR part 272, subpart P for the codification of Indiana's program changes until a later date.

The Office of Management and Budget has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993), and therefore this action is not subject to review by OMB. This action authorizes State requirements for the purpose of RCRA section 3006 and imposes no additional requirements beyond those imposed by State law. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this action authorizes pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This action does not have tribal implications within the meaning of Executive Order 13175 (65 FR 67249, November 9, 2000). This action will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely authorizes State requirements as part of the State RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks. This action is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.

Under RCRA section 3006(b), EPA grants a State's application for authorization as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for EPA, when it reviews a State authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not include environmental justice issues that require consideration under Executive Order 12898 (59 FR 7629, February 16, 1994). As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings issued under the executive order.

This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).