The Asian longhorned beetle (ALB, Anoplophora glabripennis ), an insect native to China, Japan, Korea, and the Isle of Hainan, is a destructive pest of hardwood trees. It attacks many healthy hardwood trees, including maple, horse chestnut, birch, poplar, willow, and elm. In addition, nursery stock, logs, green lumber, firewood, stumps, roots, branches, and wood debris of half an inch or more in diameter are subject to infestation. The beetle bores into the heartwood of a host tree, eventually killing the tree. Immature beetles bore into tree trunks and branches, causing heavy sap flow from wounds and sawdust accumulation at tree bases. They feed on, and over-winter in, the interiors of trees. Adult beetles emerge in the spring and summer months from round holes approximately three-eighths of an inch in diameter (about the size of a dime) that they bore through branches and trunks of trees. After emerging, adult beetles feed for 2 to 3 days and then mate. Adult females then lay eggs in oviposition sites that they make on the branches of trees. A new generation of ALB is produced each year. If this pest moves into the hardwood forests of the United States, the nursery, maple syrup, and forest product industries could experience severe economic losses. In addition, urban and forest ALB infestations will result in environmental damage, aesthetic deterioration, and a reduction in public enjoyment of recreational spaces.

The regulations in 7 CFR 301.51-1 through 301.51-9 restrict the interstate movement of regulated articles from quarantined areas to prevent the artificial spread of ALB to noninfested areas of the United States. Recent surveys conducted in New York by inspectors of the Animal and Plant Health Inspection Service (APHIS) have revealed that infestations of ALB have occurred on Prall's Island and in an area of Staten Island in Richmond County. These areas are outside the existing quarantined areas, and are in close proximity to the Middlesex/Union County quarantined area in New Jersey and could potentially reinfest that area. Officials of the U.S. Department of Agriculture and officials of State, county, and city agencies in New York are conducting intensive survey and eradication programs in the infested area, and the State of New York has quarantined the infested area and is restricting the intrastate movement of regulated articles from the quarantined area to prevent the further spread of ALB within that State. However, Federal regulations are necessary to restrict the interstate movement of regulated articles from the quarantined area to prevent the spread of ALB to other States and other countries.

The regulations in § 301.51-3(a) provide that the Administrator of APHIS will list as a quarantined area each State, or each portion of a State, in which ALB has been found by an inspector, where the Administrator has reason to believe that ALB is present, or where the Administrator considers regulation necessary because of its inseparability for quarantine enforcement purposes from localities where ALB has been found. Less than an entire State will be quarantined only if (1) the Administrator determines that the State has adopted and is enforcing restrictions on the intrastate movement of regulated articles that are equivalent to those imposed by the regulations on the interstate movement of regulated articles and (2) the designation of less than an entire State as a quarantined area will be adequate to prevent the artificial spread of ALB. In accordance with these criteria and the recent ALB findings described above, we are amending the list of quarantined areas in § 301.51-3(c) to include an additional area in Richmond County, NY. The expanded quarantined area is described in the regulatory text at the end of this document.

This rulemaking is necessary on an emergency basis to prevent the artificial spread of ALB to noninfested areas of the United States. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this rule effective less than 30 days after publication in the Federal Register .

We will consider comments we receive during the comment period for this interim rule (see DATES above). After the comment period closes, we will publish another document in the Federal Register . The document will include a discussion of any comments we receive and any amendments we are making to the rule.

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

This interim rule amends the ALB regulations by expanding the boundaries of the quarantined areas in New York and restricting the interstate movement of regulated articles from these areas. This action is necessary to prevent the artificial spread of the ALB to noninfested areas of the United States.

The Regulatory Flexibility Act (RFA) requires that agencies consider the economic impact of their rules on small entities, such as small businesses, organizations, and governmental jurisdictions. The businesses potentially affected by this rule are nurseries, tree care services, firewood retailers, lawn maintenance and landscaping companies, general contractors, garden centers, recyclers of waste material, and lumber and building material outlets. These businesses could be affected by the regulations in two ways. First, if a business wishes to move regulated articles interstate from a quarantined area, that business must either: (1) Enter into a compliance agreement with APHIS for the inspection and certification of regulated articles to be moved interstate from the quarantined area; or (2) present its regulated articles for inspection by an inspector and obtain a certificate or a limited permit, issued by the inspector, for the interstate movement of regulated articles. The inspections may be inconvenient, but not costly; businesses operating under a compliance agreement would perform the inspections themselves and for those businesses that elect not to enter into a compliance agreement, APHIS would provide the services of an inspector without cost. There is also no cost for the compliance agreement, certificate, or limited permit for the interstate movement of regulated articles.

Second, there is a possibility that, upon inspection, a regulated article could be determined by the inspector to be potentially infested with the ALB and, as a result, the inspector would not issue a certificate. In this case, the entity's ability to move regulated articles interstate would be restricted. However, the affected entity could conceivably obtain a limited permit under the conditions of § 301.51-5(b).

Additionally, entities may incur additional costs in disposing of regulated articles such as wood debris from tree pruning and removal.

Within the quarantined area added by this interim rule, there are approximately 15 entities potentially affected, including 2 nursery dealers, 1 nursery grower, 6 landscaping companies, 3 general contractors, 2 transfer stations, and a compost facility. While the size of these entities is unknown, it is reasonable to assume that most would be classified as small entities, based on the U.S. Small Business Administration's size standards.

Because the newly regulated area is primarily urban, the entities located in that area are more likely to be receiving regulated articles from outside the quarantined area than they are to be shipping regulated articles interstate to nonquarantined areas. It is unlikely, therefore, that most entities located in the newly regulated area would be moving regulated articles that would require inspection in the first place.

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

This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 7 CFR part 3015, subpart V.)

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

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

On December 5, 2000 (65 FR 76092), FDA (we) published a final rule (hereinafter referred to as the shell egg refrigeration and labeling final rule) to require a safe handling statement on cartons of shell eggs that have not been treated to destroy Salmonella microorganisms ( § 101.17(h) (21 CFR 101.17(h))). The regulation also requires retail establishments to store and display shell eggs under refrigeration (21 CFR 115.50). FDA issued the shell egg refrigeration and labeling final rule because of the number of outbreaks of foodborne illnesses and deaths caused by Salmonella Enteriditis that are associated with the consumption of shell eggs. After the publication of the shell egg refrigeration and labeling final rule, the egg industry asked FDA to allow safe handling statements to be placed on the inside lid of egg cartons because of: (1) The lack of equipment to print on the side panels of egg cartons (i.e., the information panel), (2) the high cost to purchase equipment to print on the sides of egg cartons, and (3) the high cost to change the graphic design of the PDP for each brand that manufacturers produce for each customer.

In the Federal Register of May 5, 2005 (70 FR 23813), FDA published a proposed rule (the 2005 proposed rule) to allow the egg industry to place the required safe handling statement on the inside lid of egg cartons, if the statement “Keep Refrigerated” appears on the PDP or information panel. We tentatively concluded in the proposed rule that the inside lid would serve as an acceptable panel for the safe handling instructions without diminishing the effectiveness of the message. We further tentatively concluded that providing flexibility to allow the placement of the safe handling statement for shell eggs on the inside lid of egg cartons if the statement “Keep Refrigerated” appears on the PDP or information panel may result in cost savings for the egg industry, and, thus, for consumers.

FDA received a total of eight responses, each containing one or more comments, to the proposal. The comments were from consumer groups, a State government agency, a consumer, a consulting firm, and a trade association. Some of these comments were about issues that are outside the scope of this rulemaking and will not be addressed in this document. The majority of the remaining comments supported the proposal. One comment directly opposed the proposal, whereas two comments supported the proposal based on suggested modifications to the proposal.

(Comment 1) The comment that opposed the proposal asserted that there is no “lack of equipment” for printing the safe handling statement on the side panel of egg cartons. The comment contended that all the egg industry has to do is order new packages.

(Response) As we stated in the 2005 proposed rule, the egg industry sent letters to FDA stating that placing the statement on the top or sides of the carton would result in a financial hardship for their companies because of, among other things, the lack of equipment to print on the side panels of egg cartons (i.e., the information panel) and the high cost to purchase equipment to print on the sides of egg cartons. One of these letters provided specific information on the high costs to purchase new equipment required for printing on the information panel and on the high costs to redesign the egg carton. The comment that opposed the proposal did not provide data or other information that shows that the industry has the necessary equipment. Consequently, we are not persuaded by this comment, and we maintain our view that allowing the safe handling instructions on the inside of the lid could result in cost savings for the industry and ultimately the consumer, while continuing to provide mandatory safe handling instructions to consumers.

(Comment 2) Several comments requested that FDA make format changes for the safe handling statement. Two comments stated that FDA should replace the current standard of “conspicuous” with specific formatting requirements for the safe handling statement, e.g., use of dark color, such as black, blue, dark blue, or brown on a light background. In addition, several comments stated that the type size of the safe handling statement should be increased and two of these comments suggested specific sizes, e.g., 12-point or larger and “10-inch type”  1 or larger. In addition, one of these comments stated that a survey of egg cartons found that the safe handling statement is printed in type as small as 7-point and, sometimes, the statement is printed directly on a gray cardboard carton, which makes the statement difficult to read. Therefore, according to this comment, a significant number of consumers may not notice or may have difficulty reading this information.

(Response) We do not agree that specific formatting requirements for the safe handling statement are needed. Provisions in section 403(f) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 343(f)) and FDA implementing regulations in §§ 101.2 and 101.15 (21 CFR 101.2 and 101.15) address the prominence and conspicuousness of mandatory information on food labels. Specifically, § 101.2(c) provides that mandatory labeling information must appear prominently and conspicuously and should be at least one-sixteenth inch in height. In addition, § 101.15(a)(6) provides that labeling information may lack the necessary prominence and conspicuousness if it is crowded with other written or graphic matter or has insufficient background contrast. The comments did not provide data that show that the existing requirements in §§ 101.2 and 101.15 are not adequate when followed. In addition, the type size required in § 101.2 is a minimum type size and does not restrict manufacturers from using a larger type size to print information on food labels if they choose. Also, while the comments stated that the safe handling statement may be difficult to read, the comments did not provide any data that demonstrate that consumers are unable to read the statement. Therefore, we are not persuaded that specific formatting requirements are needed in this regulation in addition to the requirements already in place in §§ 101.2 and 101.15 to ensure that the safe handling statement is noticeable and legible.

We remind manufacturers that they must comply with FDA's regulations on the prominence and conspicuousness of mandatory information on food labels in §§ 101.2 and 101.15. In addition, we encourage manufacturers to print the safe handling statement in fonts larger than the minimum required if space is available on the carton.

(Comment 3) One comment stated that a referral statement should accompany the “Keep Refrigerated” statement. The comment argued that a referral statement is necessary so that consumers would know to look on the inside of the lid for safe handling instructions. However, the comment did not provide any supporting data.

(Response) We are not persuaded by the comment that a referral statement should accompany the “Keep Refrigerated” statement. In the proposal we did not propose to require a referral statement because we assumed that the number of consumers who would read the safe handling statement on the inside lid under this rule to be about the same as the number who read it on the outside of the carton. We base this assumption on the following reasons: (1) All consumers open egg cartons before consumption; and (2) the greater potential for larger font sizes and lower text density on the inside lid, which may equate to a larger number of consumers reading the safe handling statement.

However, in the proposed rule we asked for comment on whether it is necessary to require a referral statement on the outside lid when the safe handling instructions are placed on the inside lid. The comment did not provide any supporting data or other information that demonstrates that when consumers open egg cartons before consumption, they will not see the safe handling instructions. Therefore, we are not persuaded that there is a need for a referral statement to accompany the “Keep Refrigerated” statement.

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

The Regulatory Flexibility Act requires agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. The final rule provides additional options for placing the safe handling statement on egg cartons. No small business would be forced to use this option, and so the final rule imposes no costs on small businesses. For those small businesses choosing the option, the final rule reduces labeling costs. Therefore, the agency certifies that this final rule will not have a significant economic impact on a substantial number of small entities.

Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $122 million, using the most current (2005) Implicit Price Deflator for the Gross Domestic Product. FDA does not expect this final rule to result in any 1-year expenditure that would meet or exceed this amount.

The need for this regulation is to provide the shell egg industry, which includes egg producers, carton manufacturers, egg distributors, and retailers, additional flexibility in complying with FDA requirements for the placement of safe handling instructions on egg cartons, without reducing the prominence or conspicuousness of the information and without undermining the effectiveness of the shell egg refrigeration and labeling final rule. Allowing the inside lid to be used for the safe handling instructions may create cost savings for firms that were concerned that complying with the labeling requirement of the shell egg refrigeration and labeling final rule would be a financial hardship. This final rule allows for the safe handling instructions to be placed on the inside lid of egg cartons if the words “Keep Refrigerated” are placed on the PDP or information panel.

In response to the proposed rule, FDA received several comments. None of the comments provided information that would alter the conclusions of the economic impact analysis of the proposed rule.

In the proposed rule, FDA evaluated three regulatory options to allow the safe handling statement to be printed on the inside lid of egg cartons. The options considered were the following: (1) No new regulatory action, (2) allow the safe handling statement to be placed on the inside lid with a referral statement on the outside of the carton if the words “Keep Refrigerated” are placed on the PDP or information panel, and (3) allow the safe handling statement to be placed on the inside lid with no referral statement required if the words “Keep Refrigerated” are placed on the PDP or information panel.

FDA estimated that the costs of this rule are likely to be zero. The only costs that could arise are from changes in the number of consumers who read the safe handling statement. The number of consumers who would read the safe handling statement on the inside lid under this rule is assumed to be about the same as the number who read it under the existing regulation. The reasons for this assumption are: (1) The consumer practice of looking inside the egg carton either at the time of purchase or at a time before consumption, and (2) the potential for more space on the inside lid of egg cartons because of its relatively larger surface area.

At least one study has shown that labels that are larger and have less text density attract more attention (Ref. 1). Another study has shown that larger font sizes enhance label legibility (Ref. 2). Because the inside lid may allow less text density and more space for printing the safe handling statement in larger font sizes, such placement may result in a larger number of consumers reading the safe handling statement than under the existing regulation. Because all consumers look inside the egg carton at some time before consumption, FDA concludes that there are no costs of this final rule.

The benefits from this rule are the costs savings to firms from avoiding placing the safe handling statement on the PDP or information panel. The estimates of the total cost savings for this rule are based on previous estimates of costs savings of option two in the proposed rule. Under option two, the costs savings for a firm from additional flexibility equal the difference between the sum of the costs of printing the safe handling statement on the inside lid and printing a referral statement and the costs of printing the safe handling statement on either the PDP or information panel. The agency estimated the cost savings associated with option two by computing the costs of full label redesign and of adding a safe handling statement using the FDA Labeling Cost Model, Final Report (Ref. 3). The range of cost savings from option two is estimated to be between $5 and $19 million, with a mean of $11 million, assuming a 12-month compliance period.

A comparison of the estimates of the total costs savings reported for option two with those reported for option three, the chosen option, indicates the potential for substantial cost savings with option three. The larger cost savings from option three compared with option two reflects the lower cost from not requiring a referral statement on an outside panel in option three as well as the cost savings from a larger share of the industry choosing the inside lid statement under option three. The cost savings from option two and this final rule are reported in table 1 of this document.

FDA estimated the costs and benefits for three regulatory options for flexibility in the placement of the safe handling statement on egg cartons. The analysis concludes that the costs, measured as the public health effects of a decrease in the number of consumers that would read the safe handling statement, are zero for option three, the chosen option. We conclude that because all consumers open egg cartons before consumption, and given the potential for larger font sizes and lower text density on the inside lid, it is likely that most consumers will notice the safe handling statement on the inside lid if it is located there. The benefits from the options considered are measured as the cost savings from allowing firms additional flexibility of printing the safe handling statement on the inside lid. The estimated cost savings from option three, the chosen option in this final rule, range from $8 to $25 million, with a mean of $15 million, assuming a 12-month compliance period.

The agency has determined under 21 CFR 25.30(k) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

FDA concludes that this final rule contains no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.

FDA has analyzed this rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that the rule would have a preemptive effect on State law. Section 4(a) of the Executive Order requires agencies to “construe * * * a Federal statute to preempt State law only where the statute contains an express preemption provision, or there is some other clear evidence that the Congress intended preemption of State law, or where the exercise of State authority conflicts with the exercise of Federal authority under the Federal statute.”

The shell egg refrigeration and labeling final rule set minimum national standards to ensure the safety of eggs for all consumers in this country. Because State and local public health officials are the primary enforcement officials in retail establishments, FDA has recognized that it must rely on these officials to provide the bulk of the enforcement of this regulation. If less stringent State or local refrigeration and labeling requirements are not preempted, enforcement of those less stringent requirements will interfere with the cooperative enforcement of the Federal egg refrigeration and labeling requirements. FDA believes that such cooperative enforcement is critical to effective implementation of this important food safety requirement.

Thus, although Congress did not expressly preempt State law in this area, FDA found in the shell egg refrigeration and labeling final rule that preemption is needed because State and local laws that are less stringent than the Federal requirements will significantly interfere with the important public health goals of this regulation (65 FR 76092 at 76109-76110). This final rule amends the shell egg refrigeration and labeling final rule to permit the egg industry to place the safe handling statement for shell eggs on the inside lid of egg cartons if the statement “Keep Refrigerated” appears on the PDP or information panel. FDA believes that preemption of State and local labeling requirements that are the same as or more stringent than the requirements of this regulation would not be necessary, as enforcement of such State and local requirements would not interfere with the food safety goals of this regulation. Further, it is likely that any states that enacted similar labeling requirements to those in this final rule would change those requirements to be consistent with any changes made by FDA as a result of this rulemaking. Accordingly, the preemptive effect of this rule would be limited to State or local requirements that are not as stringent as the requirements of this regulation. Requirements that are the same as or more stringent than FDA's requirement would remain in effect.

Further, section 4(e) of the Executive Order provides that “when an agency proposes to act through adjudication or rulemaking to preempt State law, the agency shall provide all affected State and local officials notice and an opportunity for appropriate participation in the proceedings.” FDA provided the States with an opportunity for appropriate participation in this rulemaking when it sought input from all stakeholders through publication of the 2005 proposed rule. FDA received two comments from a State Department of Agriculture, which agreed with the proposal.

In addition, on March 12, 2007, FDA's Division of Federal and State Relations provided notice by fax and e-mail transmission to State health commissioners, State agriculture commissioners, and food program directors of FDA's intended amendment to its food labeling regulations to permit the egg industry to place the safe handling statement for shell eggs on the inside lid of egg cartons if the statement “Keep Refrigerated” appears on the PDP or information panel (§ 101.17(h)). The notice provided the States with further opportunity for input on this rulemaking. It advised the States of the intended publication of the final rule and encouraged State and local governments to review the notice and to provide any comments to the docket (Docket Number 2004N-0382), opened May 5, 2005, when the 2005 proposed rule was published in the Federal Register , by a date 30 days from the date of the notice (i.e., by April 11, 2007). FDA received no comments in response to this notice. The notice has been filed in the previously referenced docket.

For the reasons set forth previously in this document, the agency believes that it has complied with all of the applicable requirements under the Executive order. In conclusion, FDA has determined that the preemptive effects of this rule are consistent with Executive Order 13132.

The following references have been placed on display in the Division of Dockets Management (see ADDRESSES ) and may be seen by interested persons between 9 a.m. and 4 p.m., Monday through Friday.

Background

Part 208 implements the provisions of 31 U.S.C. 3332, which generally requires that Federal payments be made by electronic funds transfer (EFT). Under 31 U.S.C. 3332, the Secretary of the Treasury (Secretary) must ensure that any individual required to receive a Federal payment by EFT have access to an account at a financial institution at a reasonable cost and with certain consumer protections. On August 7, 2006, Treasury issued an interim final rule amending Part 208 in order to facilitate the delivery of Federal benefit and assistance payments to victims of emergencies and disasters. The purpose of the interim rule was to provide regulatory authority for Treasury, in the event of a disaster or emergency, to establish accounts at a financial institution for affected individuals in order to allow for the delivery by EFT of Federal payments.

The possibility that a future emergency or disaster could disrupt the delivery of Federal payments through conventional methods such as direct deposit and check was made apparent by Hurricane Katrina in 2005. During the aftermath of Hurricane Katrina, many individuals who had been displaced from their homes were in immediate need of financial assistance. As Hurricane Katrina illustrated, in the extraordinary circumstance of a disaster, many individuals may not have access to their bank accounts and may not be able to readily establish new bank accounts. Such individuals would have no way to receive an electronic Federal assistance or benefit payment. Moreover, the postal delivery of checks may be delayed or disrupted in a disaster situation, at the very time when the expeditious delivery of Federal assistance and benefit payments is critical in assisting people in disaster situations who urgently need funds in order to pay for food, clothing and shelter. Even where Treasury checks can be expeditiously delivered to disaster victims, individuals who have been displaced from their homes may be unable to establish their identities due to lost or inaccessible documentation. As a result, financial institutions may be unwilling to cash Treasury checks for these individuals, because they cannot determine the identity of the individual or whether a Treasury check that an individual is seeking to cash has been stolen and fraudulently endorsed. Finally, check payments may raise security concerns in disaster situations, since individuals who cash checks will typically be carrying significant amounts of cash in order to make purchases.

In light of these concerns, we published an interim final rule to provide regulatory authority for Treasury to establish accounts at financial institutions for victims of a disaster or emergency in order to allow for the electronic delivery of Federal payments.

We received three comment letters on the interim final rule. One comment letter, from a national payments association, expressed support for the rule and noted that the rule appears to provide the flexibility that would be critical in the event of a future disaster or emergency that disrupts the delivery of payments. The letter also urged Treasury give advance consideration to issues such as how long accounts would remain open, where people would go to open accounts and how ACH files would be transferred if there were no electricity and/or telecommunications capacity. Another comment letter, from a trade association, agreed with the need for flexibility in disaster situations but urged Treasury to provide disaster victims with the opportunity to receive Federal payments through the financial institution of their choosing whenever possible. The letter also urged Treasury to use all available communications media to apprise disaster victims, the financial services sector and emergency assistance organizations of the plan to deliver Federal payments in the aftermath of a disaster.

The third comment letter was from a Federal agency. The agency questioned how Treasury could deliver payments electronically in the event that the infrastructure supporting direct deposit were disrupted. The agency also raised other questions, such as how financial institutions would provide account access to disaster victims who do not have documentary evidence of their identities. Finally, the agency argued that agency relief personnel and individual victims are in the best position to decide how disaster relief payments should be delivered, and that individuals should not be required to receive payments electronically through accounts established for them by Treasury.

We are aware that, depending on the nature of an emergency, the delivery of payments by direct deposit could be disrupted by damage to the payment system infrastructure. The purpose of the amendment to Part 208 was to provide Treasury with maximum flexibility for developing payment solutions even in the event of disruptions to payment networks, electricity and/or telecommunications. For example, in the event that the direct deposit network were not operational, it might be possible to deliver payments via other established electronic payment networks, such as ATM networks and credit/debit card networks, or through other means that might be developed depending upon the contingencies of a particular situation. In the event that individuals could not provide the standard identity documents that financial institutions typically require, Treasury would work with benefit and relief agencies and financial institutions to issue passwords that disaster victims could use to access payments following the agencies' confirmation of victims' identities on the basis of verifiable information held by the agency.

It is important to note that the interim final rule permits, but does not require, Treasury to establish accounts for disaster victims. Treasury intends to work closely with benefit and relief agencies to determine how best to deliver funds in the event of an emergency. Because it is impossible to know in advance precisely the circumstances that a future disaster or emergency could present, the rule allows the terms and conditions of such accounts to be established on the basis of whatever is appropriate in a given situation. Thus, for example, Treasury might consider establishing accounts for disaster victims through which relief and assistance funds could be accessed at ATMs and/or point-of-sale locations. Alternatively, in more exigent circumstances, Treasury might work with one or more financial institutions to provide electronic funds access through proprietary arrangements with retailers, charitable organizations or other unconventional means of access. The interim final rule gives Treasury the authority to quickly establish accounts for disaster and emergency victims, as well as the flexibility to determine what features such accounts should have in order to meet the needs of agencies and payment recipients.

The interim rule amended 31 CFR Part 208 by adding a new § 208.11 that provides that Treasury may establish accounts at financial institutions for victims of a disaster or emergency in order to allow for the electronic delivery of Federal payments. New § 208.11 gives the Secretary flexibility to determine what features such accounts should have in light of the particular nature of the disaster or emergency. Sections 208.4, 208.6, 208.7 and 210.5 of title 31 CFR do not apply to the establishment of accounts or issuance of payments pursuant to this section. For example, the waivers set forth in § 208.4 are not applicable in situations where Treasury is establishing accounts for the express purpose of allowing for the delivery by EFT of Federal payments to disaster victims. The requirement in §§ 208.6 and 210.5 that a Federal non-vendor electronic payment be deposited to a deposit account in the name of the recipient does not apply to accounts established pursuant to § 208.11, nor are agencies required to notify check recipients and newly-eligible payment recipients of options available to them, as is normally required under § 208.7. Further, Treasury will be able to deliver payments to accounts established pursuant to § 208.11, notwithstanding any other instructions from the payment recipient.

On June 1, 1998, the President issued a memorandum directing each agency in the Executive branch to write its rules in plain language. This directive is effective for all new proposed and final rulemaking documents issued on or after January 1, 1999. We invite comment on how to make this final rule clearer. For example, you may wish to discuss: (1) Whether we have organized the material to suit your needs; (2) whether the requirements of this final rule are clear; or (3) whether there is something else we could do to make this rule easier to understand.

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

Because no notice of proposed rulemaking was required for this final rule, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et. seq.) do not apply.

A previous interim final rule was published in the Federal Register on March 16, 2005, (70 FR 12798-12805) that established requirements and procedures to implement TRICARE Reserve Select under section 701 of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005 (NDAA-05) (Pub. L. 108-375). Section 701 of NDAA-05 authorized premium-based medical coverage for certain members of the Selected Reserve and their family members. By April 2005, Selected Reserve members who served on active duty in support of a contingency operation and fulfilled other statutory qualifications could purchase TRICARE Reserve Select coverage for periods proportional to their period of active duty.

A second interim final rule was published in the Federal Register on June 21, 2006, (71 FR 35527-35537). That interim final rule revised requirements and procedures for TRICARE Reserve Select pursuant to sections 701 and 702 of the National Defense Authorization Act for Fiscal Year 2006 (NDAA-06) (Pub. L. 109-163). Section 701 enhanced the existing TRICARE Reserve Select program. Section 702 added two new tiers of premium sharing by the government (50 percent and 85 percent member portion) to the existing premium tier (28 percent member portion), making TRICARE Reserve Select available to all Selected Reservists.

Before a final rule could be issued subsequent to the interim final rule published in the Federal Register on June 21, 2006, (71 FR 35527-35537) for the TRICARE Reserve Select program, Section 706 of the NDAA-07 amended the statutory provisions in sections 701 and 702 of the NDAA-06 which were implemented in the interim final rule.

Therefore, this interim rule addresses provisions of the National Defense Authorization Act for Fiscal Year 2007 (NDAA-07) (Pub. L. 109-364). First, section 706 of the NDAA-07 expands the availability of the 28 percent premium tier to all Selected Reservists with one exception. Those individuals either enrolled or eligible to enroll in a health benefit plan under Chapter 89 of Title 5, United States Code are specifically excepted from eligibility under this legislation. Second, this section eliminates fixed length periods of coverage. Third, this section eliminates the 50 percent and 85 percent premium tiers to reflect the repeal of Section 1076b of Title 10, United States Code, in its entirety.

The law authorizing the TRICARE Reserve Select program uses the term “eligibility” to identify conditions under which a Reserve component member may purchase coverage. For purposes of program administration, the terms “qualifying” or “qualified” shall generally be used in lieu of such terms as “eligibility” or “eligible” to refer to a Reserve component member who meets the program requirements allowing purchase of TRICARE Reserve Select coverage.

The latter interim rule (June 21, 2006) introduced certain terminology for TRICARE Reserve Select intended to reflect critical elements that distinguish it from other long-established TRICARE health programs. For instance, the effective date of eligibility for TRICARE has long been understood to mean that the eligible individual may obtain care under the military health system as of that date. However, that is not what it means in the context of TRICARE Reserve Select. To avoid the inevitable misunderstanding, this rule uses the term “qualify” to mean that the member has satisfied all the “qualifications” that must be met before the member is authorized to purchase coverage. Only then may the member purchase coverage by submitting a completed request in the appropriate format along with payment of the applicable one month premium. The term “coverage” indicates the benefit of TRICARE covering claims submitted by TRICARE authorized providers, hospitals, and suppliers for payment of covered services, supplies, and equipment.

A. Establishment of the TRICARE Reserve Select Program (paragraph 199.24(a)). This paragraph describes the nature, purpose, statutory basis, scope, and major features of TRICARE Reserve Select, a premium-based medical coverage program that was made available worldwide to certain members of the Selected Reserve and their family members. TRICARE Reserve Select is authorized by 10 U.S.C. 1076d.

The major features of the program include the following. TRICARE Reserve Select coverage is available for purchase by any Selected Reserve member if the member fulfills all of the statutory qualifications. The amount of the premium that members pay is prescribed by the Secretary of Defense as one premium for member-only coverage and a second premium for member and family coverage. The statute eliminates the former tiered premium rate structure of TRICARE Reserve Select. Additionally, TRICARE rules apply unless otherwise specified; certain special TRICARE programs are not part of TRICARE Reserve Select, including the Extended Care Health Option (ECHO) program, the Special Supplemental Food Program (also known as the Women, Infants, and Children—Overseas Program), and the Supplemental Health Care Program, except when referred by a Military Treatment Facility (MTF) provider for incidental consults and the MTF provider maintains clinical control over the episode of care. The TRICARE Dental Program is already available under 10 U.S.C. 1076a to all members of the Selected Reserve and their family members whether or not they purchase TRICARE Reserve Select coverage.

Under TRICARE Reserve Select, Selected Reserve members who fulfill all of the statutory qualifications may purchase either the member-only type of coverage or the member and family type of coverage by submitting a completed request in the appropriate format along with payment of the applicable monthly premium at the time of enrollment. When their coverage becomes effective, TRICARE Reserve Select beneficiaries receive the TRICARE Standard (and Extra) benefit. TRICARE Reserve Select features the deductible and cost share provisions of the TRICARE Standard (and Extra) plan for active duty family members (ADFM) for both the member and covered family members.

B. TRICARE Reserve Select premiums (paragraph 199.24(b)). Members are charged premiums for coverage under TRICARE Reserve Select that represent 28 percent of the total annual premium amount that the Assistant Secretary of Defense, Health Affairs (ASD(HA)) determines on an appropriate actuarial basis as being appropriate for coverage under the TRICARE Standard (and Extra) benefit for the TRICARE Reserve Select eligible population. Premiums are to be paid monthly, except as otherwise established as part of the administrative implementation of TRICARE Reserve Select.

Annual rates for the first year TRICARE Reserve Select was offered (2005) were based on the calendar year annual premiums for the Blue Cross and Blue Shield Standard Service Benefit Plan under the Federal Employees Health Benefits Program, a nationwide plan closely resembling TRICARE Standard (and Extra) coverage, with an adjustment based on estimated differences in covered populations, as determined by the ASD(HA).

Based on an analysis of demographic differences between Blue Cross and Blue Shield members and beneficiaries eligible for TRICARE Reserve Select, the adjustment amount in calendar year 2005 represented a 32 percent reduction from the Blue Cross and Blue Shield annual premium for member-only coverage and represented an 8 percent reduction from the Blue Cross and Blue Shield annual premium for member and family coverage. (The difference in the percentage reductions between member-only and member and family premiums is due to the disproportionately high number of high cost, single, elderly retiree federal employees covered by Blue Cross and Blue Shield member-only coverage).

TRICARE Reserve Select monthly premium rates are established and updated annually, on a calendar year basis, to maintain an appropriate relationship with the annual changes in Blue Cross and Blue Shield premiums, or by other adjustment methodology determined to be appropriate by the ASD(HA) for each of the two types of coverage, member-only coverage and member and family coverage, on a calendar year basis. The monthly rate for each month of a calendar year is one-twelfth of the annual rate for that calendar year.

In addition to these annual premium changes, premium adjustments may also be made prospectively for any calendar year to reflect any significant program changes or any actual experience in the costs of administering the TRICARE Reserve Select Program.

A surviving family member of a Reserve Component service member who qualified for TRICARE Reserve Select coverage as described in paragraph (c)(3) of this section will pay premium rates as follows. The premium amount shall be at the member-only rate if there is only one surviving family member to be covered by TRICARE Reserve Select and at the member and family rate if there are two or more survivors to be covered.

C. Eligibility for qualifying to purchase TRICARE Reserve Select coverage (paragraph 199.24(c)). This paragraph defines the statutory conditions under which members of a Reserve component may qualify to purchase TRICARE Reserve Select coverage. Section 706 of NDAA-07 restructures the availability of the 28 percent premium tier by requiring only two qualifying conditions.

The qualifying condition to be “a member of the Selected Reserve of the Ready Reserve of a reserve component of the armed forces,” remains in force while all of the other former qualifying conditions are eliminated. The member's Service personnel office is responsible for keeping the Defense Enrollment Eligibility Reporting System (DEERS) current with eligibility data.

One exclusionary qualifying condition is added that excludes “a member who is enrolled, or is eligible to enroll, in a health benefits plan under chapter 89 of title 5 U.S.C,” from purchasing TRICARE Reserve Select coverage.

If a member of the Selected Reserve dies while in a period of TRICARE Reserve Select coverage, the family member(s) may purchase new or continue existing TRICARE Reserve Select coverage for up to six months beyond the date of the member's death upon payment of monthly premiums.

D. Procedures (paragraph 199.24(d)).

E. Relationship to Continued Health Care Benefits Program (CHCBP) (paragraph 199.24(e)). This paragraph addresses the relationship between TRICARE Reserve Select and the CHCBP. CHCBP is a program that (among other things) allows members released from active duty to purchase continued health care coverage through TRICARE. Coverage under TRICARE Reserve Select counts as coverage under a health benefit plan for purposes of individuals qualifying for the Continued Health Care Benefits Program (CHCBP) under section 199.20(d)(1)(ii)(B) or section 199.20(d)(1)(iii)(B) of this Part. Some members and family members will be eligible for TRICARE Reserve Select, and may also be eligible for CHCBP at the time of release from active duty.

This paragraph of the regulation provides that if a member purchases TRICARE Reserve Select coverage that is later terminated, the member or the covered family members may then purchase CHCBP coverage for whatever period is remaining of the original 18-month eligibility. For example, in the case that TRICARE Reserve Select coverage that is terminated because of transfer or discharge of a member from the Selected Reserve (such as through a reduction in force or base closure) is within 18 months of release from active duty, the member could choose to continue health care coverage under CHCBP for the remainder of the period at the applicable CHCBP premiums.

F. Preemption of State laws (paragraph 199.24(f)). This paragraph explains that the preemptions of State and local laws established for the TRICARE program also apply to TRICARE Reserve Select. Any State or local law or regulation pertaining to health insurance, prepaid health plans, or other health care delivery, administration, and financing methods is preempted and does not apply in connection with TRICARE Reserve Select.

This includes State and local laws imposing premium taxes on health insurance carriers, underwriters or other plan managers, or similar taxes on such entities. Preemption does not apply to taxes, fees, or other payments on net income or profit realized by such entities in the conduct of business relating to DoD health services contracts, if those taxes, fees or other payments are applicable to a broad range of business activity. For the purposes of assessing the effect of Federal preemption of State and local taxes and fees in connection with DoD health services contracts, interpretations shall be consistent with those applicable to the Federal Employees Health Benefits Program under 5 U.S.C. 8909(f).

G. Administration (paragraph 199.24(g)). This paragraph provides that the ASD(HA) may establish other rules and procedures necessary for the effective administration of TRICARE Reserve Select.

Executive Order 12866 requires certain regulatory assessments for any significant regulatory action that would result in an annual effect on the economy of $100 million or more, or have other substantial impacts. The Congressional Review Act establishes certain procedures for major rules, defined as those with similar major impacts. The Regulatory Flexibility Act (RFA) requires that each Federal agency prepare, and make available for public comment, a regulatory flexibility analysis when the agency issues a regulation that would have significant impact on a substantial number of small entities. This interim final rule is not subject to any of those requirements because it would not have any of these substantial impacts. Any substantial impacts associated with implementation of TRICARE Reserve Select are already determined by statute and are outside any discretionary action of DoD or effect of this regulation.

This rule, however, does address novel policy issues relating to implementation of a new medical benefits program for members of the armed forces. Thus, this rule has been reviewed by the Office of Management and Budget under E.O. 12866.

This rule will not impose additional information collection requirements on the public under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3511).

We have examined the impact(s) of the interim final rule under Executive Order 13132 and it does not have policies that have federalism implications that would 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, therefore, consultation with State and local officials is not required.

This rule is being published as an interim final rule with comment period contrary to the normal procedure of soliciting public comment under a proposed rule first, in order to comply with the requirements of the John Warner National Defense Authorization Act for Fiscal Year 2007, Public Law 109-364, section 706, which was enacted on January 6, 2007. This section provides in pertinent part that “The Secretary of Defense shall ensure that health care under TRICARE Standard is provided under section 1076d of title 10, United States Code, as amended by this section beginning not later than October 1, 2007.” In order to comply with the statutorily mandated start date, this rule is being published as an interim final rule, with an effective date of October, 1, 2007. Public comments are welcome and will be considered before publication of the final rule.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. The publishing of an NPRM would be impracticable and contrary to public interest since immediate action is needed to minimize potential danger to the participants and the public during the event. The necessary information to determine whether the marine event poses a threat to persons and vessels was not provided with sufficient time to publish an NPRM. The danger posed by the large volume of marine traffic in the Annapolis harbor area makes special local regulations necessary to provide for the safety of swimmers, event support vessels, spectator craft and other vessels transiting the event area. For the safety concerns noted, it is in the public interest to have these regulations in effect during the event. The Coast Guard will issue broadcast notice to mariners to advise vessel operators of navigational restrictions. On-scene Coast Guard and local law enforcement vessels will also provide actual notice to mariners.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date would be contrary to the public interest, since immediate action is needed to ensure the safety of the event participants, support vessels, spectator craft and other vessels transiting the event area. However advance notification will be made to users of Annapolis harbor via marine information broadcasts, local notice to mariners, commercial radio stations and area newspapers.

On September 9, 2007, the City of Annapolis and the Annapolis Triathlon Club will sponsor the “Annapolis Triathlon”. The swimming segment of the event will consist of approximately 1500 swimmers competing across a one mile course located within Annapolis Harbor, at the entrance of Spa Creek and extending outward to the Severn River. The competition will begin at the Annapolis City dock. The participants will swim along an oval shaped course and across to the finish line located at the Annapolis City dock, swimming approximately one-mile, contained within the inner Annapolis Harbor area. Approximately 30 support vessels will accompany the swimmers. Due to the need for vessel control during the swimming event, the Coast Guard will temporarily restrict vessel traffic in the event area to provide for the safety of participants, support craft and other transiting vessels.

The Coast Guard is establishing temporary special local regulations on specified waters of the Severn River and Spa Creek at Annapolis, Maryland. The temporary special local regulations will be in effect from 6 a.m. to 10:30 a.m. on September 9, 2007. The effect will be to restrict general navigation in the regulated area during the event. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the regulated area. Vessel traffic may be allowed to transit the regulated area at slow speed as the swim progresses, when the Coast Guard Patrol Commander determines it is safe to do so. The Patrol Commander will notify the public of specific enforcement times by Marine Radio Safety Broadcast. These regulations are needed to control vessel traffic during the event to enhance the safety of participants, spectators and transiting vessels.

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. We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation is unnecessary.

Although this regulation restricts vessel traffic from transiting a portion of the Severn River and Spa Creek during the event, the effect of this regulation will not be significant due to the limited duration that the regulated area will be in effect and the extensive advance notifications that will be made to the maritime community via marine information broadcasts, area newspapers and radio stations so mariners can adjust their plans accordingly.

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 rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit this section of the Severn River and or Spa Creek during the event.

This rule will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will be in effect for only a short period, from 6 a.m. to 10:30 a.m. on September 9, 2007. Vessels desiring to transit the event area will be able to transit the regulated area at slow speed as the swim progresses, when the Coast Guard Patrol Commander determines it is safe to do so. Before the enforcement period, we will issue maritime advisories so mariners can adjust their plans accordingly.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we will assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the Fifth Coast Guard District at the address listed under ADDRESSES . The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

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

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

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

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

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

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

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

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

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order 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 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 and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(h), of the Instruction, from further environmental documentation. We have made a determination that this action is not likely to have a significant effect on the human environment. The proposed marine event consisting of approximately 1500 participants swimming along a one-mile oval race course within Annapolis Harbor does not introduce any significant environmental impacts in the area of the event and or adjacent waterways.

A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” will be available in the docket where indicated under ADDRESSES .

Table of Contents I. What Action Is EPA Taking? II. What Is the Regulatory History of CAIR and the CAIR FIPs? III. What are the General Requirements of CAIR and the CAIR FIPs? IV. What are the Types of CAIR SIP Submittals? V. Analysis of Tennessee's CAIR SIP Submittal A. State Budgets for Allowance Allocations B. CAIR Cap-and-Trade Programs C. Applicability Provisions for non-EGUs NO X SIP Call sources D. NO X Allowance Allocations E. Allocation of NO X Allowances from the Compliance Supplement Pool F. Individual Opt-in Units VI. Final Action VII. Statutory and Executive Order Reviews I. What Action Is EPA Taking? CAIR SIP Approval

EPA is approving a revision to Tennessee's SIP, submitted on September 8, 2006, that would modify the application of certain provisions of the CAIR FIP concerning SO 2 , NO X annual, and NO X ozone season emissions. (As discussed below, this less comprehensive CAIR SIP is termed an abbreviated SIP.) Tennessee is subject to the CAIR FIPs that implement the CAIR requirements by requiring certain electric generating units (EGUs) to participate in the EPA-administered Federal CAIR SO 2 , NO X annual, and NO X ozone season cap-and-trade programs. The SIP revision provides a methodology for allocating NO X allowances for the NO X annual and NO X ozone season trading programs. The CAIR FIPs provide that this methodology, if approved, will be used to allocate NO X allowances to sources in Tennessee, instead of the federal allocation methodology otherwise provided in the FIP. The SIP revision also provides for individual units not otherwise subject to the CAIR trading programs to opt into such trading programs. EPA is approving (1) Tennessee's methodology for allocating allowances to units subject to the CAIR trading programs under the current applicability provisions in the CAIR FIP NO X annual and ozone season trading rules and (2) the opt-in unit provisions adopted by Tennessee for the CAIR FIP NO X annual, SO 2 , and NO X ozone season trading programs.

Consistent with the flexibility provided in the FIPs, these provisions will also be used to replace or supplement, as appropriate, the corresponding provisions in the CAIR FIPs for Tennessee. EPA is not making any changes to the CAIR FIP, but is amending, to the extent EPA approves Tennessee's SIP revision, the appropriate appendices in the CAIR FIP trading rules simply to note that approval.

The CAIR was published by EPA on May 12, 2005 (70 FR 25162). In this rule, EPA determined that 28 States and the District of Columbia contribute significantly to nonattainment and interfere with maintenance of the national ambient air quality standards (NAAQS) for fine particulates (PM 2.5 ) and/or 8-hour ozone in downwind States in the eastern part of the country. As a result, EPA required those upwind States to revise their SIPs to include control measures that reduce emissions of SO 2 , which is a precursor to PM 2.5 formation, and/or NO X , which is a precursor to both ozone and PM 2.5 formation. For jurisdictions that contribute significantly to downwind PM 2.5 nonattainment, CAIR sets annual State-wide emission reduction requirements (i.e., budgets) for SO 2 and annual State-wide emission reduction requirements for NO X . Similarly, for jurisdictions that contribute significantly to 8-hour ozone nonattainment, CAIR sets State-wide emission reduction requirements for NO X for the ozone season (May 1st to September 30th). Under CAIR, States may implement these emission budgets by participating in the EPA-administered cap-and-trade programs or by adopting any other control measures.

CAIR explains to subject States what must be included in SIPs to address the requirements of section 110(a)(2)(D) of the Clean Air Act (CAA) with regard to interstate transport with respect to the 8-hour ozone and PM 2.5 NAAQS. EPA made national findings, effective May 25, 2005, that the States had failed to submit SIPs meeting the requirements of section 110(a)(2)(D). The SIPs were due in July 2000, 3 years after the promulgation of the 8-hour ozone and PM 2.5 NAAQS. These findings started a 2-year clock for EPA to promulgate a FIP to address the requirements of section 110(a)(2)(D). Under CAA section 110(c)(1), EPA may issue a FIP anytime after such findings are made and must do so within two years, unless a SIP revision correcting the deficiency is approved by EPA before the FIP is promulgated.

On April 28, 2006, EPA promulgated FIPs for all States covered by CAIR in order to ensure the emissions reductions required by CAIR are achieved on schedule. Each CAIR State is subject to the FIPs until the State fully adopts, and EPA approves, a SIP revision meeting the requirements of CAIR. The CAIR FIPs require certain EGUs to participate in the EPA-administered CAIR SO 2 , NO X annual, and NO X ozone-season model trading programs, as appropriate. The CAIR FIP SO 2 , NO X annual, and NO X ozone season trading programs impose essentially the same requirements as, and are integrated with, the respective CAIR SIP trading programs. The integration of the CAIR FIP and SIP trading programs means that these trading programs will work together to create effectively a single trading program for each regulated pollutant (SO 2 , NO X annual, and NO X ozone season) in all States covered by CAIR FIP or SIP trading program for that pollutant. The CAIR FIPs also allow States to submit abbreviated SIP revisions that, if approved by EPA, will automatically replace or supplement the corresponding CAIR FIP provisions (e.g., the methodology for allocating NO X allowances to sources in the state), while the CAIR FIP remains in place for all other provisions.

On April 28, 2006, EPA published two more CAIR-related final rules that added the States of Delaware and New Jersey to the list of States subject to CAIR for PM 2.5 and announced EPA's final decisions on reconsideration of five issues without making any substantive changes to the CAIR requirements.

CAIR establishes State-wide emission budgets for SO 2 and NO X and is to be implemented in two phases. The first phase of NO X reductions starts in 2009 and continues through 2014, while the first phase of SO 2 reductions starts in 2010 and continues through 2014. The second phase of reductions for both NO X and SO 2 starts in 2015 and continues thereafter. CAIR requires States to implement the budgets by either: (1) Requiring EGUs to participate in the EPA-administered cap-and-trade programs; or, (2) adopting other control measures of the State's choosing and demonstrating that such control measures will result in compliance with the applicable State SO 2 and NO X budgets.

The May 12, 2005, and April 28, 2006, CAIR rules provide model rules that States must adopt (with certain limited changes, if desired) if they want to participate in the EPA-administered trading programs.

With two exceptions, only States that choose to meet the requirements of CAIR through methods that exclusively regulate EGUs are allowed to participate in the EPA-administered trading programs. One exception is for States that adopt the opt-in provisions of the model rules to allow non-EGUs individually to opt into the EPA-administered trading programs. The other exception is for States that include all non-EGUs from their NO X SIP Call trading programs in their CAIR NO X ozone season trading programs.

States have the flexibility to choose the type of control measures they will use to meet the requirements of CAIR. EPA anticipates that most States will choose to meet the CAIR requirements by selecting an option that requires EGUs to participate in the EPA-administered CAIR cap-and-trade programs. For such States, EPA has provided two approaches for submitting and obtaining approval for CAIR SIP revisions. States may submit full SIP revisions that adopt the model CAIR cap-and-trade rules. If approved, these SIP revisions will fully replace the CAIR FIPs. Alternatively, States may submit abbreviated SIP revisions. These SIP revisions will not replace the CAIR FIPs; however, the CAIR FIPs provide that, when approved, the provisions in these abbreviated SIP revisions will be used instead of or in conjunction with, as appropriate, the corresponding provisions of the CAIR FIPs (e.g., the NO X allowance allocation methodology).

A State submitting an abbreviated SIP revision may submit limited SIP revisions to tailor the CAIR FIP cap-and-trade programs to the state submitting the revision. Specifically, an abbreviated SIP revision may establish certain applicability and allowance allocation provisions that, the CAIR FIPs provide, will be used instead of or in conjunction with the corresponding provisions in the CAIR FIP rules in that State. Specifically, the abbreviated SIP revisions may:

1. Include NO X SIP Call trading sources that are not EGUs under CAIR in the CAIR FIP NO X ozone season trading program;

2. Provide for allocation of NO X annual or ozone season allowances by the State, rather than the Administrator of the EPA or the Administrator's duly authorized representative (Administrator), and using a methodology chosen by the State;

3. Provide for allocation of NO X annual allowances from the Compliance Supplement Pool (CSP) by the State, rather than by the Administrator, and using the State's choice of allowed, alternative methodologies; or

4. Allow units that are not otherwise CAIR units to opt individually into the CAIR FIP cap-and-trade programs under the opt-in provisions in the CAIR FIP rules.

With approval of an abbreviated SIP revision, the CAIR FIP remains in place, as tailored to sources in the State by that approved SIP revision.

Abbreviated SIP revisions can be submitted in lieu of, or as part of, CAIR full SIP revisions. States may want to designate part of their full SIP as an abbreviated SIP for EPA to act on first when the timing of the State's submission might not provide EPA with sufficient time to approve the full SIP prior to the deadline for recording NO X allocations. This will help ensure that the elements of the trading programs where flexibility is allowed are implemented according to the State's decisions. Submission of an abbreviated SIP revision does not preclude future submission of a CAIR full SIP revision. In this case, the September 8, 2006 submittal from Tennessee has been submitted as an abbreviated SIP revision.

The CAIR NO X annual and ozone season budgets were developed from historical heat input data for EGUs. Using these data, EPA calculated annual and ozone season regional heat input values, which were multiplied by 0.15 pounds per million British thermal units (lb/mmBtu), for phase 1, and 0.125 lb/mmBtu, for phase 2, to obtain regional NO X budgets for 2009-2014 and for 2015 and thereafter, respectively. EPA derived the State NO X annual and ozone season budgets from the regional budgets using State heat input data adjusted by fuel factors.

The CAIR State SO 2 budgets were derived by discounting the tonnage of emissions authorized by annual allowance allocations under the Acid Rain Program under title IV of the CAA. Under CAIR, each allowance allocated under the Acid Rain Program for the years in phase 1 of CAIR (2010 through 2014) authorizes 0.50 ton of SO 2 emissions in the CAIR trading program, and each Acid Rain Program allowance allocated for the years in phase 2 of CAIR (2015 and thereafter) authorizes 0.35 ton of SO 2 emissions in the CAIR trading program.

The CAIR FIPs established the budgets for Tennessee as 50,973 (2009-2014) and 42,478 (2015-thereafter) tons for NO X annual emissions, 22,842 (2009-2014) and 19,035 (2015-thereafter) tons for NO X ozone season emissions, and 137,216 (2010-2014) and 96,051 (2015-thereafter) tons for SO 2 emissions. Tennessee's SIP revision, being approved in this action, does not affect these budgets, which are total amounts of allowances available for allocation for each year under the EPA-administered cap-and-trade programs under the CAIR FIPs. In short, the abbreviated SIP revision only affects allocations of allowances under the established budgets.

The CAIR NO X annual and ozone-season FIPs both largely mirror the structure of the NO X SIP Call model trading rule in 40 CFR part 96, subparts A through I. While the provisions of the NO X annual and ozone-season FIPs are similar, there are some differences. For example, the NO X annual FIP (but not the NO X ozone season FIP) provides for a CSP, which is discussed below and under which allowances may be awarded for early reductions of NO X annual emissions. As a further example, the NO X ozone season FIP reflects the fact that the CAIR NO X ozone season trading program replaces the NO X SIP Call trading program after the 2008 ozone season and is coordinated with the NO X SIP Call program. The NO X ozone season FIP provides incentives for early emissions reductions by allowing banked, pre-2009 NO X SIP Call allowances to be used for compliance in the CAIR NO X ozone-season trading program. In addition, States have the option of continuing to meet their NO X SIP Call requirement by participating in the CAIR NO X ozone season trading program and including all their NO X SIP Call trading sources in that program.

The provisions of the CAIR SO 2 FIP are also similar to the provisions of the NO X annual and ozone season FIPs. However, the SO 2 FIP is coordinated with the ongoing Acid Rain SO 2 cap-and-trade program under CAA title IV. The SO 2 FIP uses the title IV allowances for compliance, with each allowance allocated for 2010-2014 authorizing only 0.50 ton of emissions and each allowance allocated for 2015 and thereafter authorizing only 0.35 ton of emissions. Banked title IV allowances allocated for years before 2010 can be used at any time in the CAIR SO 2 cap-and-trade program, with each such allowance authorizing 1 ton of emissions. Title IV allowances are to be freely transferable among sources covered by the Acid Rain Program and sources covered by the CAIR SO 2 cap-and-trade program.

EPA used the CAIR model trading rules as the basis for the trading programs in the CAIR FIPs. The CAIR FIP trading rules are virtually identical to the CAIR model trading rules, with changes made to account for federal rather than state implementation. The CAIR model SO 2 , NO X annual, and NO X ozone season trading rules and the respective CAIR FIP trading rules are designed to work together as integrated SO 2 , NO X annual, and NO X ozone season trading programs.

Tennessee is subject to the CAIR FIPs for ozone and PM 2.5 and the CAIR FIP trading programs for SO 2 , NO X annual, and NO X ozone season apply to sources in Tennessee. Consistent with the flexibility it gives to States, the CAIR FIPs provide that States may submit abbreviated SIP revisions that will replace or supplement, as appropriate, certain provisions of the CAIR FIP trading programs. The September 8, 2006, submission of Tennessee is such an abbreviated SIP revision.

In general, the CAIR FIP trading programs apply to any stationary, fossil-fuel-fired boiler or stationary, fossil-fuel-fired combustion turbine serving at any time, since the later of November 15, 1990, or the start-up of the unit's combustion chamber, a generator with nameplate capacity of more than 25 megawatt electrical (MWe) producing electricity for sale.

States have the option of bringing in, for the CAIR NO X ozone season program only, those units in the State's NO X SIP Call trading program that are not EGUs as defined under CAIR. EPA advises States exercising this option to use provisions for applicability that are substantively identical to the provisions in 40 CFR 96.304 and add the applicability provisions in the State's NO X SIP Call trading rule for non-EGUs to the applicability provisions in 40 CFR 96.304 in order to include in the CAIR NO X ozone season trading program all units required to be in the State's NO X SIP Call trading program that are not already included under 40 CFR 96.304. Under this option, the CAIR NO X ozone season program must cover all large industrial boilers and combustion turbines, as well as any small EGUs (i.e. units serving a generator with a nameplate capacity of 25 MWe or less), that the State currently requires to be in the NO X SIP Call trading program.

Consistent with the flexibility given to States in the CAIR FIP, Tennessee has not chosen to expand the applicability provisions of the CAIR NOX ozone season trading program to include all non-EGUs in the State's NO X SIP Call trading program.

Under the NO X allowance allocation methodology in the CAIR model trading rules and in the CAIR FIP, NO X annual and ozone season allowances are allocated to units that have operated for five years, based on heat input data from a three-year period that are adjusted for fuel type by using fuel factors of 1.0 for coal, 0.6 for oil, and 0.4 for other fuels. The CAIR model trading rules and the CAIR FIP also provide a new unit set-aside from which units without five years of operation are allocated allowances based on the units' prior year emissions.

The CAIR FIP provides States the flexibility to establish a different NO X allowance allocation methodology that will be used to allocate allowances to sources in the States, if certain requirements are met concerning the timing of submission of units' allocations to the Administrator for recordation and the total amount of allowances allocated for each control period. In adopting alternative NO X allowance allocation methodologies, States have flexibility with regard to:

1. The cost to recipients of the allowances, which may be distributed for free or auctioned;

2. The frequency of allocations;

3. The basis for allocating allowances, which may be distributed, for example, based on historical heat input or electric and thermal output; and

4. The use of allowance set-asides and, if used, their size.

Consistent with the flexibility given to States in the CAIR FIPs, Tennessee has chosen to replace the provisions of the CAIR NO X annual FIP concerning the allocation of NO X annual allowances, with its own methodology. Tennessee has chosen to distribute NO X annual allowances, by adopting by reference the CAIR NO X annual trading program model rule at 40 CFR 96.142. EPA is proposing to approve Tennessee's allocation provisions, i.e., parts 1200-3-27.10(1) and (2) (section 96.142) of Tennessee's CAIR NO X annual trading program.

Consistent with the flexibility given to States in the CAIR FIPs, Tennessee has chosen to replace the provisions of the CAIR NO X ozone season FIP concerning allowance allocations with its own methodology. Tennessee has chosen to distribute NO X ozone season allowances by adopting, with certain revisions, the CAIR NO X ozone season trading program model rule at 40 CFR 96.342 for units subject to the CAIR trading program under the CAIR FIP NO X ozone season applicability provisions. EPA is approving these Tennessee allocation provisions, i.e. , parts 1200-3-27-.11(2)(c)1.(i) through (iv) of Tennessee's CAIR NO X ozone season trading program. Tennessee has indicated that it may subsequently seek approval to exercise the option under CAIR of expanding the current applicability provisions in the CAIR NO X ozone season trading program to include units that are not otherwise subject to the trading program but are subject to Tennessee's NO X SIP Call trading program. However, under today's approval, only the allocation methodology for units covered by the current CAIR FIP NO X ozone season provisions is being approved, and only CAIR NO X ozone season allowance allocations submitted by Tennessee for those units will be recorded by EPA. In addition, EPA notes that Tennessee's allocation provisions in the abbreviated SIP reference certain applicability provisions in Tennessee's rule that have not been submitted as part of the abbreviated SIP. Because Tennessee's purpose in submitting these allocation provisions is for them to be used, in lieu of the CAIR FIP allocation provisions, to allocate allowances to units that are CAIR NO X ozone season units under the CAIR FIP trading program, EPA interprets the references ( i.e. , “parts [1200-3-27-.11](2)(a)1. and (2)(a)2.”) as referring to 40 CFR 97.304(a) and (b), which are the applicability provisions of the CAIR FIP NO X ozone season rules.

The CSP provides an incentive for early reductions in NO X annual emissions. The CSP consists of 200,000 CAIR NO X annual allowances of vintage 2009 for the entire CAIR region, and a State's share of the CSP is based upon the State's share of the projected emission reductions under CAIR. States may distribute CSP allowances, one allowance for each ton of early reduction, to sources that make NO X reductions during 2007 or 2008 beyond what is required by any applicable State or Federal emission limitation. States also may distribute CSP allowances based upon a demonstration of need for an extension of the 2009 deadline for implementing emission controls.

The CAIR NO X annual FIP establishes specific methodologies for allocations of CSP allowances. States may choose an allowed, alternative CSP allocation methodology to be used to allocate CSP allowances to sources in those States.

Consistent with the flexibility given to States in the FIP, Tennessee has not chosen to modify the provisions of the CAIR NO X annual FIP concerning the allocation of allowances from the CSP.

The opt-in provisions allow for certain non-EGUs (i.e., boilers, combustion turbines, and other stationary fossil-fuel-fired devices) that do not meet the applicability criteria for a CAIR trading program to participate voluntarily in (i.e., opt into) the CAIR trading program. A non-EGU may opt into one or more of the CAIR trading programs. In order to qualify to opt into a CAIR trading program, a unit must vent all emissions through a stack and be able to meet monitoring, recordkeeping, and recording requirements of 40 CFR part 75. The owners and operators seeking to opt a unit into a CAIR trading program must apply for a CAIR opt-in permit. If the unit is issued a CAIR opt-in permit, the unit becomes a CAIR unit, is allocated allowances, and must meet the same allowance-holding and emissions monitoring and reporting requirements as other units subject to the CAIR trading program. The opt-in provisions provide for two methodologies for allocating allowances for opt-in units, one methodology that applies to opt-in units in general and a second methodology that allocates allowances only to opt-in units that the owners and operators intend to repower before January 1, 2015.

States have several options concerning the opt-in provisions. The rules for each of the CAIR FIP trading programs include opt-in provisions that are essentially the same as those in the respective CAIR SIP model rules, except that the CAIR FIP opt-in provisions become effective in a State only if the State's abbreviated SIP revision adopts the opt-in provisions. The State may adopt the opt-in provisions entirely or may adopt them but exclude one of the allowance allocation methodologies. The State also has the option of not adopting any opt-in provisions in the abbreviated SIP revision and thereby providing for the CAIR FIP trading program to be implemented in the State without the ability for units to opt into the program.

Consistent with the flexibility given to States in the FIPs, Tennessee has chosen to allow non-EGUs meeting certain requirements to participate in the CAIR NO X annual trading program by adopting by reference EPA's model rule provisions for opt-in units in 40 CFR part 96, subpart II of the CAIR NO X annual trading program.

Consistent with the flexibility given to States in the FIPs, Tennessee has chosen to permit non-EGUs meeting certain requirements to participate in the CAIR NO X ozone season trading program by adopting by reference EPA's model rule provisions for opt-in units in 40 CFR part 96, subpart IIII of the CAIR NO X ozone season trading program.

Consistent with the flexibility given to States in the FIPs, Tennessee has chosen to allow certain non-EGUs to opt into the CAIR SO 2 trading program by adopting by reference EPA's model rule provisions for opt-in units in 40 CFR part 96, subpart III of the CAIR SO 2 trading program.

In adopting by reference the CAIR opt-in provisions, Tennessee has included in its rule a full written version of those provisions, which contains some technical errors in the language, and does not specifically reference the CAIR model rule provisions related to opt-in units in other subparts of the CAIR model trading rules. Because Tennessee clearly intends to adopt entirely the CAIR model rule opt-in provisions and because Tennessee has indicated that it will correct the relatively minor errors in the rule text, EPA interprets the Tennessee provisions as substantively identical to the CAIR model rule opt-in provisions and is therefore approving Tennessee's allowing of opt-in units in the CAIR FIP NO X annual, NO X ozone season, and SO 2 trading programs. Under the approval, the opt-in provisions in these CAIR FIP trading programs will apply to units in Tennessee.

EPA is approving Tennessee's abbreviated CAIR SIP revision submitted on September 8, 2006. Tennessee is covered by the CAIR FIPs, which requires participation in the EPA-administered CAIR FIP cap-and-trade programs for SO 2 , NO X annual, and NO X ozone season emissions. Under this abbreviated SIP revision and consistent with the flexibility given to States in the FIPs, Tennessee adopts provisions for allocating allowances under the CAIR FIP NO X annual and ozone season trading programs. EPA is approving Tennessee's CAIR NO X annual and ozone season allocation provisions (interpreted as discussed above) for units subject to the CAIR trading programs under the current CAIR FIP NO X annual and ozone season applicability provisions. In addition, Tennessee adopts in the abbreviated SIP revision provisions that allow for individual non-EGUs to opt into the CAIR FIP SO 2 , NO X annual, and NO X ozone season cap-and-trade programs. EPA is approving Tennessee's allowing for opt-in units (consistent with the above-discussed interpretation) and therefore the application of the opt-in provisions in these CAIR FIP trading programs to units in Tennessee.

As provided for in the CAIR FIPs, these provisions in the abbreviated SIP revision will replace or supplement the corresponding provisions of the CAIR FIPs in Tennessee. The abbreviated SIP revision meets the applicable requirements in 40 CFR 51.123(p) and (ee), with regard to NO X annual and NO X ozone season emissions, and 40 CFR 51.124(r), with regard to SO 2 emissions. EPA is not making any changes to the CAIR FIP, but is amending, to the extent EPA approves Tennessee's SIP revision, the appropriate appendices in the CAIR FIP trading rules simply to note that approval.

EPA is approving the aforementioned changes to the SIP. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective October 19, 2007 without further notice unless the Agency receives adverse comments by September 19, 2007.

If the EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on October 19, 2007 and no further action will be taken on the proposed rule.

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 (Pub. L. 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 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. section 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 October 19, 2007. 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).)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The modified BFEs are not listed for each community in this notice. However, this final rule includes the address of the Chief Executive Officer of the community where the modified BFEs determinations are available for inspection.

The modified BFEs are made pursuant to section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq. , and with 44 CFR part 65.

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

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

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

These modified BFEs are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings. The changes in BFEs are in accordance with 44 CFR 65.4.

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

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

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

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

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

Migratory birds are protected under four bilateral migratory bird treaties the United States entered into with Great Britain (for Canada in 1916 as amended in 1999), the United Mexican States (1936 as amended in 1972 and 1999), Japan (1972 as amended in 1974), and the Soviet Union (1978). Regulations allowing the take of migratory birds are authorized by the Migratory Bird Treaty Act (16 U.S.C. 703-711), and the Fish and Wildlife Improvement Act of 1978 (16 U.S.C. 712). The Migratory Bird Treaty Act (Act), which implements the above-mentioned treaties, provides that, subject to and to carry out the purposes of the treaties, the Secretary of the Interior is authorized and directed to determine when, to what extent, and by what means allowing hunting, killing, and other forms of taking of migratory birds, their nests, and eggs is compatible with the conventions. The Act requires the Secretary to implement a determination by adopting regulations permitting and governing those activities.

Canada geese are Federally protected by the Act by reason of the fact that they are listed as migratory birds in all four treaties. Because Canada geese are covered by all four treaties, regulations must meet the requirements of the most restrictive of the four. For Canada geese, this is the treaty with Canada. All regulations concerning resident Canada geese are compatible with its terms, with particular reference to Articles VII, V, and II.

Each treaty not only permits sport hunting, but permits the take of migratory birds for other reasons, including scientific, educational, propagative, or other specific purposes consistent with the conservation principles of the various Conventions. More specifically, Article VII, Article II (paragraph 3), and Article V of “The Protocol Between the Government of the United States of America and the Government of Canada Amending the 1916 Convention between the United Kingdom and the United States of America for the Protection of Migratory Birds in Canada and the United States” provides specific limitations on allowing the take of migratory birds for reasons other than sport hunting. Article VII authorizes the take, kill, etc., of migratory birds that, under extraordinary conditions, become seriously injurious to agricultural or other interests. Article V relates to the taking of nests and eggs, and Article II, paragraph 3, states that, in order to ensure the long-term conservation of migratory birds, migratory bird populations shall be managed in accord with listed conservation principles.

The other treaties are less restrictive. The treaties with both Japan (Article III, paragraph 1, subparagraph (b)) and the Soviet Union (Article II, paragraph 1, subparagraph (d)) provide specific exceptions to migratory bird take prohibitions for the purpose of protecting persons and property. The treaty with Mexico requires, with regard to migratory game birds, only that there be a “closed season” on hunting and that hunting be limited to 4 months in each year.

Regulations governing the issuance of permits to take, capture, kill, possess, and transport migratory birds are promulgated in title 50, Code of Federal Regulations (CFR), parts 13 and 21, and issued by the Service. The Service annually promulgates regulations governing the take, possession, and transportation of migratory birds under sport hunting seasons in 50 CFR part 20.

On August 10, 2006, we published in the Federal Register (71 FR 45964), a final rule establishing regulations in 50 CFR parts 20 and 21 authorizing State wildlife agencies, private landowners, and airports to conduct (or allow) indirect and/or direct population control management activities, including the take of birds, on resident Canada goose populations. Since publication of the August 10 rule, several questions and issues have been raised by the public regarding various restrictions and requirements of the new regulations.

On March 22, 2007, we published in the Federal Register (72 FR 13459) a proposed rule to clarify and slightly modify several program requirements regarding eligibility, definitions, methodologies, and dates. This final rule addresses comments we received on the March 22 proposed rule and modifies regulations contained in 50 CFR parts 20 and 21 pertaining to several program requirements regarding eligibility, definitions, methodologies, and dates.

We received public comments on the March 22 proposed rule from four State wildlife resource agencies: The Missouri Department of Conservation (Missouri), the New York Division of Fish, Wildlife, and Marine Resources (New York), the Wisconsin Department of Natural Resources (Wisconsin), and the Wyoming Game and Fish Department (Wyoming). We considered all comments.

In general, New York and Wyoming supported all of the proposed changes and clarifications, and Wisconsin supported the clarification of methods for nest and egg destruction and the inclusion of local units of government in the nest and egg depredation order. Other, more specific comments are described, and responded to, below:

(1) New York sees no biological reason to limit the definition of “resident Canada geese” to Canada geese nesting within the lower 48 States or District of Columbia during the months of March, April, May, or June. New York recommends expanding the definition to resident Canada geese to include those geese that nest in those areas at any time. Such an expansion would allow the take of nests and eggs at any time in the lower 48 States.

While we agree with New York that the removal of any Canada goose nests in either February or July would have no biological impact on resident Canada goose populations, we also believe that the current definition of resident Canada geese allows the take of resident Canada goose nests and eggs in 98 percent of all such circumstances. Further, any goose nest discovered in February would likely be available for nest destruction activities in March. Thus, we see no need to significantly alter the existing definition. However, if future data demonstrate that expanding the current definition would further assist in dealing with the conflicts and problems caused by resident Canada geese, we would reexamine the issue.

(2) Wyoming expressed concern that the public may not be aware that any particular State wildlife agency could have additional or stricter requirements than those contained in the Federal regulations. Wyoming encouraged the Service to include cautionary statements in the text of each control and depredation order.

We have consistently stated that States and Tribes may always be more restrictive than Federal regulations. All of the regulations authorizing the specific control and depredation orders have explicit language stating that “Nothing in this section authorizes the destruction of resident Canada goose nests or the take of resident Canada goose eggs contrary to the laws or regulations of any State or Tribe, and none of the privileges of this section may be exercised unless the landowner is authorized to operate under the program and possesses the appropriate State or Tribal permits, when required. Moreover, this section does not authorize the killing of any migratory bird species or destruction of their nest or eggs other than resident Canada geese [§ 21.50(d)(7)],” or similar language [see § 21.49(d)(6); § 21.51(d)(9); and § 21.52(d)(7)]. Further, we have added specific State-supplied information on our Resident Canada Goose Nest and Egg Registration Web site ( https://epermits.fws.gov/eRCGR ) informing the public about State participation and any additional State requirements.

(3) Wisconsin does not support the use of expanded hunting methods and opportunities during September 16-30 and Missouri does not support the use of any expanded hunting methods and opportunities at any time during September. Missouri further believed that (a) the expanded hunting methods would have a minimal impact on resident Canada geese; (b) a September 16 regular goose season framework opening date and additional regular season days could be more effective for increasing harvest of resident Canada goose populations; and (c) population estimates for resident Canada geese in the Mississippi Flyway appear to have stabilized during the last 5 years.

Traditionally we have used special Canada goose seasons in September to specifically target resident goose populations and address some of the conflicts and problems caused by overabundant resident Canada geese. The objectives identified in the November 2005 Final Environmental Impact Statement (FEIS) (notices of availability published November 18, 2005, at 70 FR 69966 and 70 FR 69985) include reducing the resident Canada goose population to levels more inline with the Flyway Councils' established goals and objectives. To accomplish these objectives requires extraordinary measures. Currently available harvest and population data clearly indicate that current harvest is not able to significantly impact resident Canada goose population growth rates on other than a local scale. We estimated that the additional use of these methods during the September special seasons could increase harvest by at least 25 percent, or an additional 140,000 geese annually. As we stated in the FEIS and the August 10 final rule, we believe that implementation of these new hunting methods will help contribute to the overall program's objective of stabilizing and reducing resident Canada goose populations.

At the same time we realize that there are those who believe that we have unnecessarily liberalized the allowable hunting methods; and, therefore, sacrificed hunting ethics in our perceived shortsightedness. However, given the extraordinary circumstances of these populations, the many challenges of reducing the populations on a national scale, and the Flyways' and our long-range population goals, we expanded the allowable hunting methods to the extent we believe necessary to help assist in reducing resident Canada goose populations. Once we have attained these objectives, we will initiate action to rescind these liberalizations.

When we ultimately decided to authorize these expanded hunting methods in September Canada goose seasons, we also decided to restrict any management-take type action to the month of August. We made this decision with the full knowledge that extending such an action into September would likely result in the take of some migrant geese. In particular, areas in the upper midwest (Michigan, Wisconsin, Minnesota, North Dakota, South Dakota, and Montana) would have some level of migrant geese taken. Since the management take component, as with the entire scope of the EIS, is specifically directed at resident Canada geese, we could not reliably extend the management take component into September. Thus, to proceed cautiously and to ensure that other migratory game bird populations were not impacted by such measures, we eliminated the management take component from any portion of the open Treaty period (after August 31) and limited the use of expanded hunting methods to September 1 to 15. Based on data from the numerous experimental September Canada goose seasons conducted in the early implementation of these seasons, we know that the period after September 15 is highly temporally and spatially variable on whether or not a specific area contains migrant geese (either appreciable numbers or an appreciable percentage). Because of the potential for these expanded methods to significantly affect harvest, we stated that the use of these methods of take (i.e., electronic calls, unplugged shotguns, and the allowance of shooting hours to one-half hour after sunset) should be limited to the extent possible to those areas that are relatively “free” of migrant geese. Thus, initially, we decided to restrict the use of these new methods to the September 1 to 15 period and review their use after September 15 on a case-by-case basis. While we stand by this previous decision, we remain open to discussion in the future, especially if any new data is presented. Further, as always, Flyway Councils may be more restrictive in their recommendations to member States, and States may be more restrictive in their implementation decisions.

Regarding Missouri's comment that a September 16 regular goose season framework opening date and additional regular season days could be more effective for increasing harvest of resident Canada goose populations, this issue presents a number of biological and administrative issues. While we agree that such actions could increase harvest pressure on resident Canada geese, a September 16 framework opening date throughout not only the Mississippi Flyway, but also the Atlantic and Central Flyways, would require establishing the regular season during the early-season regulations process, which presents a number of administrative problems and has nationwide implications.

(4) Missouri recommends a July 15 (or July 30) reporting deadline for nest and egg destruction information. Missouri is concerned that the quality of reported information could suffer with a June 30 deadline for nest and egg destruction activities and an October 31 deadline for reporting information.

While we encourage registrants to report nest destruction information in a timely manner, our established reporting deadline is consistent with other reporting deadlines for migratory bird permits. However, if future data demonstrate that the current October 31 reporting deadline could be contributing to reporting data of a less than desired quality, we will reexamine the issue.

The current definition of resident Canada geese contained in § 20.11 and § 21.3 states that “Canada geese that nest within the lower 48 States in the months of March, April, May, or June, or reside within the lower 48 States and the District of Columbia in the months of April, May, June, July, or August” are considered resident Canada geese. We have modified the first portion of this definition by inserting “and the District of Columbia” following the word “States” to clarify that those Canada geese that nest within the District of Columbia in the months of March, April, May, or June, are included. It was not our original intention to exclude the District of Columbia from the definition.

One of the components in the resident Canada goose management program is to provide expanded hunting methods and opportunities to increase the sport harvest of resident Canada geese above that which results from existing September special Canada goose seasons. The regulatory changes in § 20.21(b) and (g) codified in the August 10 final rule provide State wildlife management agencies and Tribal entities the option of authorizing the use of electronic calls and unplugged shotguns during the first portion of existing, operational September Canada goose seasons (i.e., September 1-15). The August 10 final rule also stated that utilization of these additional hunting methods during any new special seasons or other existing, operational special seasons (i.e., September 16-30) could be approved by the Service and would require demonstration of a minimal impact to migrant Canada goose populations. Further, these seasons would be authorized on a case-by-case basis through the normal migratory bird hunting regulatory process. All of these expanded hunting methods and opportunities must be conducted outside of any other open waterfowl season (i.e., when all other waterfowl and crane hunting seasons were closed).

However, the regulatory changes codified in the August 10, 2006, final rule did not allow for utilization of these additional hunting methods outside of the September 1-15 period, although this was clearly our intent. We have modified § 20.21(b) and (g) to allow State selection of these expanded hunting methods during the September 16-30 period, when approved in the annual regulatory schedule in subpart K of part 20.

Since publication of the August 10 final rule we have received questions regarding interpretation of the 3-mile radius restriction on resident Canada goose activities at airports and military airfields. We have clarified this restriction by specifically including areas within the airport, and the military base on which a military airfield is located, and inserting the term “outer boundary.” Thus, resident Canada goose management activities at airports and military airfields would be restricted to areas within the airport, or the military base on which a military airfield is located, and within a 3-mile radius of the outer boundaries of such a facility.

Currently, § 21.50 authorizes private landowners and managers of public lands to destroy resident Canada goose nests and eggs on property under their jurisdiction when necessary to resolve or prevent injury to people, property, agricultural crops, or other interests. We have modified this eligibility to also include homeowners' associations and village, town, municipal, and county governments (collectively termed local governments). Homeowners' associations and local governments would be allowed to register under the nest and egg depredation order and conduct nest and egg destruction anywhere within their jurisdiction, provided that they have landowner permission to conduct such activities.

Our modification is based on several factors. First, we currently issue individual depredation permits allowing resident Canada goose nest and egg destruction to these groups, particularly in the northeastern United States. We believe the extension of eligibility to these groups to operate under the nest and egg depredation order is not outside the intent of the depredation order, is formalization of an already established practice under our permit system, and is simply an administrative modification. Second, since the publication of the August 10 rule, we have received numerous public comments requesting this modification. Modification of this requirement will help ensure public satisfaction and satisfy our original objective of providing affected States and the public with flexibility sufficient to deal with the problems caused by resident Canada geese. Lastly, since local governments are in an obvious position of local authority and jurisdiction, we believe they are a logical extension of our existing landowner definition. The changes include referring to these persons and entities collectively as “registrants.” Necessary conforming changes in a number of subsections were also made.

We modified the approved methodologies for nest and egg destruction under the depredation order for resident Canada geese nests and eggs in § 21.50(d)(3). Currently, the regulations state that eggs may be oiled or eggs and nest material may be removed and disposed of. All of the other depredation and control orders pertaining to resident Canada geese (§§ 21.49, 21.51, and 21.52) allow egg oiling and egg and nest destruction. We believe the latter language is more comprehensive and includes such methodologies as egg addling (egg shaking), puncturing, and egg replacement. It was not our intent to be more restrictive regarding nest and egg destruction methodologies under the nest and egg depredation order than the other resident Canada goose depredation and control orders or what we currently allow on permits allowing nest and egg destruction. We believe this modification is minor in nature, satisfies numerous public requests for clarification and alignment, simplifies restrictions, and maintains the original intent of the regulation.

We modified the web address for registering and submitting annual reports of the take of nests and eggs under the depredation order for resident Canada geese nests and eggs in § 21.50(d)(1) and (6).

We corrected § 21.61(d)(2) to read “August 31” rather than “August 30.” This was strictly an oversight.

Under the Administrative Procedure Act (5 U.S.C. 553(d)), we waive the 30-day period before the rule becomes effective and find that “good cause” exists, within the terms of 5 U.S.C. 553(d)(3) of the APA, and so this rule will take effect immediately upon publication. It is not in the public interest to delay the effective date of this rule. In many parts of the country, especially the northeastern and midwestern States, special September hunting seasons for resident Canada geese will take place. Any delay in the effective date of this rule could impact States' ability to implement expanded hunting methods and opportunities this September. It is in the best interest of the States and the public to clarify and slightly modify several program requirements regarding eligibility, definitions, methodologies, and dates to allow State wildlife agencies and affected publics the ability to reduce the number and frequency of injurious resident Canada geese.

In compliance with the requirements of section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(C)), and the Council on Environmental Quality's regulation for implementing NEPA (40 CFR 1500-1508), we published the availability of a Draft Environmental Impact Statement (DEIS) on March 7, 2002 (67 FR 10431), followed by a 91-day comment period. We subsequently reopened the comment period for 60 additional days (68 FR 50546, August 21, 2003). On November 18, 2005, both the Service and the Environmental Protection Agency published notices of availability for the Final Environmental Impact Statement (FEIS) in the Federal Register (70 FR 69966 and 70 FR 69985). On August 10, 2006, we published our Record of Decision (ROD) in the Federal Register (71 FR 45964). The FEIS is available to the public (see ADDRESSES ). These changes to the resident Canada goose regulations fall within the scope of the FEIS.

Section 7(a)(2) of the Endangered Species Act (ESA), as amended (16 U.S.C. 1531-1543; 87 Stat. 884) provides that “Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out * * * is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat * * *.” We completed a biological evaluation and informal consultation (both available upon request; see ADDRESSES ) under Section 7 of the ESA for the action described in the August 10 final rule. In the letter of concurrence between the Division of Migratory Bird Management and the Division of Endangered Species, we concluded that the inclusion of specific conservation measures in the final rule satisfied concerns about certain species and that the action was not likely to adversely affect any threatened, endangered, or candidate species.

Prior to issuance of this final rule on these modifications, in a memo of concurrence between the Division of Migratory Bird Management and the Division of Endangered Species, we concluded that the proposed modifications and clarifications are not likely to adversely affect any species designated as endangered or threatened or modify or destroy its critical habitat and is consistent with conservation programs for those species (available upon request; see ADDRESSES ).

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq. ) requires the preparation of flexibility analyses for actions that will have a significant economic impact on a substantial number of small entities, which includes small businesses, organizations, or governmental jurisdictions. We discussed these impacts in the August 10 final rule. For the reasons detailed in that rule, we have determined that a Regulatory Flexibility Act analysis is not required.

In accordance with the criteria in Executive Order 12866, this action is not a significant regulatory action subject to Office of Management and Budget (OMB) review. This rule will not have an annual economic effect of $100 million or adversely affect any economic sector, productivity, competition, jobs, the environment, or other units of government. Therefore, a cost-benefit economic analysis is not required. This action will not create inconsistencies with other agencies' actions or otherwise interfere with an action taken or planned by another agency. The Federal agency most interested in this action is Wildlife Services of the U.S. Department of Agriculture's Animal and Plant Health Inspection Service. The action is consistent with the policies and guidelines of other Department of the Interior bureaus. This action will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. This action will not raise novel legal or policy issues because we have previously managed resident Canada geese under the Migratory Bird Treaty Act.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. It will not have an annual effect on the economy of $100 million or more; nor will it cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. It will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

This rule does not contain any new information collection or recordkeeping requirements subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)). OMB has approved and assigned control number 1018-0133, which expires on 08/31/2009, to the regulations concerning the control and management of resident Canada geese. We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number.

The Unfunded Mandates Reform Act of 1995 requires agencies to assess the effects of Federal regulatory actions on State, local, and tribal governments and the private sector. The purpose of the act is to strengthen the partnership between the Federal Government and State, local, and tribal governments and to end the imposition, in the absence of full consideration by Congress, of Federal mandates on these governments without adequate Federal funding, in a manner that may displace other essential governmental priorities. We have determined, in compliance with the requirements of the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq. , that this action will not “significantly or uniquely” affect small governments, and will not produce a Federal mandate of $100 million or more in any given year on local or State government or private entities. Therefore, this action is not a “significant regulatory action” under the Unfunded Mandates Reform Act.

We have determined that these regulations meet the applicable standards provided in Sections 3(a) and 3(b)(2) of Executive Order 12988. Specifically, this rule has been reviewed to eliminate errors and ambiguity, has been written to minimize litigation, provides a clear legal standard for affected conduct, and specifies in clear language the effect on existing Federal law or regulation. We do not anticipate that this rule will require any additional involvement of the justice system beyond enforcement of provisions of the Migratory Bird Treaty Act of 1918 that have already been implemented through previous rulemakings.

In accordance with Executive Order 12630, this action, authorized by the Migratory Bird Treaty Act, does not have significant takings implications and does not affect any constitutionally protected property rights. This action will not result in the physical occupancy of property, the physical invasion of property, or the regulatory taking of any property. In fact, this action will help alleviate private and public property damage and concerns related to public health and safety and allow the exercise of otherwise unavailable privileges.

Due to the migratory nature of certain species of birds, the Federal Government has been given statutory responsibility over these species by the Migratory Bird Treaty Act. While legally this responsibility rests solely with the Federal Government, it is in the best interest of the migratory bird resource for us to work cooperatively with the Flyway Councils and States to develop and implement the various migratory bird management plans and strategies.

The August 10 final rule and this rule were developed following extensive input from the Flyway Councils, States, and Wildlife Services. Individual Flyway management plans were developed and approved by the four Flyway Councils, and States actively participated in the scoping process for the DEIS. This rule does not have a substantial direct effect on fiscal capacity, change the roles or responsibilities of Federal or State governments, or intrude on State policy or administration. The rule allows States the latitude to develop and implement their own resident Canada goose management action plan within the frameworks of the selected alternative. Therefore, in accordance with Executive Order 13132, this rule does not have significant federalism effects and does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and 512 DM 2, we have determined that this rule has no effects on Federally-recognized Indian tribes.

On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This rule is not a significant regulatory action under Executive Order 12866 and is not expected to adversely affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.